The Appeals Chamber of the International Criminal Court (ICC) on Monday ordered prosecutor Fatou Bensouda to reconsider her choice to not charge Israel for their raid on a flotilla carrying aid to the Gaza Strip.

On May 31, 2010, Israeli Defence Forces attacked a flotilla carrying humanitarian aid, resulting in the death of eight Turks and one Turkish-American as well as the injury of several pro-Palestine commandos. Bensouda decided in 2014 not to investigate the attack and was later asked to reconsider that decision in 2018. This action led Bensouda’s appeal of the second request, which was affirmed by the ICC.

These requests to reconsider the decision come from the nation of Comoros, under whose flag the flotilla was sailing.

Bensouda must now reconsider her decision in light of the specific directions of a 2015 decision by the Pre-Trial Chamber. That decision concluded that Bensouda made a material error in judging that the incident was not of “sufficient gravity” to justify further action by the ICC. The Pre-Trial Chamber noted error in Bensouda’s “assessment of the possibility to prosecute those persons who may bear the greatest responsibility for the identified crimes.”

The Appeals Chamber maintains that “the ultimate decision as to whether or not to initiate an investigation is that of the Prosecutor.”

Israel is not a member state of the ICC but Israeli nationals could face charges if there is an investigation.