Palestinian children hold images of some of the victims of Israel’s attack on the 2010 aid flotilla during a commemoration ceremony in Gaza City, 31 May 2015. Ashraf Amra APA images

A panel of judges has ordered the chief prosecutor of the International Criminal Court (ICC) in The Hague to review her decision not to investigate Israel’s lethal attack on an aid flotilla to Gaza five years ago.

The judges said that Chief Prosecutor Fatou Bensouda had made serious errors in an earlier decision not to pursue the case.

In the early hours of 31 May 2010, Israeli commandos boarded and seized the boats in international waters in the eastern Mediterranean.

Israeli forces carried out a particularly violent armed attack on the largest vessel, Mavi Marmara, killing nine persons. A tenth victim died of his injuries in May 2014.

Nine victims were Turkish citizens. One, 18-year-old Furkan Doğan, was a US citizen. But despite this, the Obama administration has ignored calls to investigate his execution-style killing and bring the Israeli perpetrators to justice.

“Material errors”

In a 2-1 ruling Thursday, the ICC’s Pre-Trial Chamber I – a panel of judges with the power to order investigations – told Chief Prosecutor Bensouda to review her decision not to proceed with an investigation into the attack.

In a scathing ruling, the judges said Bensouda had underestimated the seriousness and international significance of the crimes.

According to a press release from the court, the judges “identified material errors in the Prosecutor’s assessment of the possibility to prosecute those persons who may bear the greatest responsibility for the identified crimes committed during the seizure of the Mavi Marmara, as well as of the scale, nature, manner of commission and impact of the potential crimes.”

Bensouda must now review her decision “as soon as possible.”

The initial request for the ICC to investigate the massacre was submitted in 2013 by Comoros, the Indian Ocean archipelago state where Mavi Marmara was formally registered. Bensouda decided not to proceed with a full investigation in November 2014.

This week’s decision came as a result of an appeal the Comoros government submitted in January. The ICC also said that it had received submissions from the families of the victims.

Israel, predictably, has tried to change the subject and expressed rage at even the slightest crack in the wall of impunity that protects it.

“At a time when, in Syria, [President Bashar] Assad slaughters hundreds of thousands of his own people, Iran sends hundreds to death, and Hamas uses children as human shields in Gaza, the court has chosen to deal with Israel for cynical political reasons,” Israeli Prime Minister Benjamin Netanyahu said in reaction to the ruling.

Pursuit of justice

Separately, last month, a Spanish judge urged his country’s government to pursue the cases of three Spanish citizens who were aboard the Mavi Marmara at the ICC.

Judge Jose de la Mata was forced to close his investigation due to laws passed in 2014 limiting the ability of Spanish magistrates to pursue international cases. The decision to pursue the cases is now in the hands of political authorities at the justice ministry.

Two Spanish activists and a journalist who were aboard the Mavi Marmara have filed cases against Netanyahu and six other Israeli ministers accusing them of illegal arrest, torture and deportation.

“I will be able to start the trial again if Israeli Prime Minister Benjamin Netanyahu and Israeli ministers set foot on Spanish soil,” the judge told reporters.

Families of the victims have initiated their own legal proceedings in Turkey, whose authorities issued arrest warrants last year for a number of senior Israeli officers suspected of involvement in the killings.

Last month, Israeli commandos again used violence to commandeer the Marianne in international waters, as the vessel attempted to break Israel’s ongoing maritime siege of Gaza.

Notes: An earlier version of this article stated that Furkan Doğan was both a US and Turkish citizen. According to his father, Furkan carried only US citizenship.

An earlier version of this article stated that the tenth victim died of his wounds in June 2014. It has been corrected to state May 2014.