With regard to the manner of commission of the crimes, the Prosecutor found that the crimes were not systematic or the result of a plan or policy and were confined to one vessel. With regard to the nature of the crimes, the Prosecutor noted that the killings and serious injuries are grave breaches of the Geneva Conventions, but asserted that the outrages upon personal dignity committed do not amount to torture or inhumane treatment. “t has to be acknowledged that the total number of victims of the flotilla incident reached relatively limited proportions as compared, generally, to other cases investigated by the Office.” In addition, an unknown number of people were victims of outrages upon personal dignity. With regard to the scale of the crimes, the Prosecutor asserted that ten people were killed and fifty to fifty-five people were injured, some seriously. In assessing the gravity of the crimes the Prosecutor took into account the four factors the Court commonly uses in making gravity determinations: “the scale, nature, manner of commission of the crimes, and their impact.” (i) whether the individuals or groups of persons that are likely to be the object of an investigation, include those who may bear the greatest responsibility for the alleged crimes committed and (ii) the gravity of the crimes committed within the incidents which are likely to be the focus of an investigation. In making this determination, the Prosecutor considered: It nonetheless concludes that the situation is insufficiently grave to merit ICC investigation. The Prosecutor’s sixty-one-page report explains that after conducting a preliminary examination of the situation, the Prosecutor found that a reasonable basis exists to believe that war crimes within the Court’s jurisdiction were committed. The gravity threshold is contained in article 17(1)(d) of the Rome Statute and states that a case is inadmissible where it “is not of sufficient gravity to justify further action by the Court.” Although the provision refers to the admissibility of a “case,” in deciding whether to open an investigation the Prosecutor must determine the gravity of the likely cases in the situation-the “situational gravity.” Neither the Rome Statute nor the treaty’s drafting history provides guidance regarding which cases or situations meet the gravity threshold. On November 6, 2014, the Prosecutor announced her decision not to investigate the “Flotilla Incident” on the grounds that the situation does not meet the gravity threshold for admissibility. The Prosecutor opened a preliminary examination to determine whether a reasonable basis exists to investigate. One of the boats was registered to the Union of the Comoros, a state party to the International Criminal Court (ICC), which referred the situation to the Court. In addition, there were allegedly hundreds of incidents of outrages upon personal dignity, and possibly torture. In the course of boarding and taking control of the vessels, the IDF killed ten people and injured approximately fifty. On May 31, 2010, Israeli Defense Forces (IDF) intercepted an eight-boat humanitarian flotilla en route to the Gaza Strip.
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