The case was referred to her office on May 14, 2013 by the Union of the Comoros, which is an ICC States Party (member). One of the ships in the flotilla was registered in the Comoros.
Bensouda announced the same day that she was opening a preliminary examination.
“Following a thorough legal and factual analysis of the information available, I have concluded that there is a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court (…) were committed on one of the vessels, the Mavi Marmara, when Israeli Defense Forces intercepted the “Gaza Freedom Flotilla” on 31 May 2010,” says the Prosecutor. “However, after carefully assessing all relevant considerations, I have concluded that the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.”
She stresses that the gravity requirement is an “explicit legal criteria set by the Rome Statute” and that “without in any way minimizing the impact of the alleged crimes on the victims and their families, I have to be guided by the Rome Statute, in accordance with which, the ICC shall prioritize war crimes committed on a large scale or pursuant to a plan or policy”.
The Union of the Comoros, which made the referral to the Prosecutor, has been an ICC States Party since August 18, 2006. Of the eight ships in the flotilla, only three were registered in States Parties.