In 2013, the prosecutor of Spain’s national court formally requested a judge to begin steps to refer a case against Israeli leaders for the attack on the Gaza flotilla in 2010 to the International Criminal Court (ICC).
The Spanish campaign Rumbo A Gaza has a lengthy website in Spanish with many documents on this case. https://www.rumboagaza.org/la-lucha-legal/
Three Spanish citizens, Manuel Tapial, Laura Arau and David Segarra, were aboard the Mavi Marmara when Israeli forces attacked and commandeered the ship in international waters on 31 May 2010, killing nine people, wounding dozens of others, and kidnapping all the crew and hundreds of passengers.
Tapial, Arau and Segarra filed the case against Israeli Prime Minister Benjamin Netanyahu, six ministers and a vice admiral of the Israeli navy who led the attack. Arau, a filmmaker, described the attack in an interview last August, and said the Israelis confiscated everything she recorded.
The Mavi Marmara was the largest of several vessels that formed the flotilla that attempted to break the Israeli siege on Gaza.
Prosecutor finds strong evidence of crimes against humanity
Spain’s eldiario.es reported that the prosecutor in the case, Pedro Martínez Torrijos, found that there was “strong evidence” of “crimes against humanity, illegal detention, deportation and torture” that merited investigation by the ICC.
Torrijos ruled that both Spain’s national courts and the ICC were competent to investigate the case, but that the ICC was preferable. If the ICC refused to investigate, or ruled the case inadmissible, according to Torrijos, then it could return to Spanish courts under universal jurisdiction.
The prosecutor said the ICC had jurisdiction because the vessels that were the victims of the attack were flagged in states that are members of the international court, and Spain was involved as its citizens were aboard the ships.
Government will decide
Under Spanish procedure, the prosecutor sent an official brief (PDF) containing his findings to a magistrate asking that the judge request the Ministry of Justice to refer the case to the ICC. In other words, eldiario.es reported, “the government will decide whether to refer the case to the ICC prosecutor.”
That could be a sticking point as several Western governments, including the UK and Belgium, have previously been complicit in frustrating efforts to bring Israeli war criminals to justice.
In June 2015, a Madrid court dropped its investigation into possible Israeli war crimes over the 2010 Gaza Flotilla raid. The case could be reopened, however, should Israeli Prime Minister Benjamin Netanyahu, or any others named within, visit Spain.
Spain’s case is based upon the concept of universal jurisdiction, which maintains that crimes against humanity can be tried across borders. Spanish law has changed recently, however, to require a Spanish connection in the case for it to be tried. There were Spanish activists involved in the flotilla.
In a written ruling, the Spanish court said it was closing its investigation for the time being, unless those targeted should come to Spain in the future. It did not clarify what would happen in such a circumstance.
Chief prosecutor of the International Criminal Court (ICC) Fatou Bensouda said late last year that the ICC would not be investigating the Mavi Marmara incident, despite what he called a “reasonable basis” to believe that war crimes were committed.