By Richard Lightbown
Israel’s raid on the Gaza Freedom Flotilla on 31 May 2010 caused the severance of diplomatic relations with Turkey and spawned legal actions in several countries. Claims in compensation cases in Turkish courts from only 40 victims have already amounted to the equivalent of more than 6 million Euros. Meanwhile the case against four former senior commanders on behalf of 490 plaintiffs is slowly progressing through the 7th High Criminal Court in Istanbul. The prosecution alleges that at the time of the raid Chief of Staff Gavriel Ashkenazi, Naval Forces Commander Eliezar Marom, Head of the Military Intelligence Directorate Amos Yadlin and Air Forces Intelligence Director Avishai Levi jointly and personally “ordered the operation in which war crimes and crimes against humanity are alleged to have been committed”.
The defendants have not attended the hearings and the Israeli government does not recognize the trial. Its position has always been that its commandos were safeguarding their country’s security when they were attacked by terrorists. This spurious narrative has been supported by media misinformation such as Panorama’s false assertion that flotilla members used firearms against the commandos, by a UN Panel (the Palmer Committee) devoid of expertise in international maritime law which presumed to declare the Israeli blockade a legal entity, and by Israel’s official investigation (the Turkel Committee) whose report does not withstand scrutiny. Supporters have also ensured that the Wikipedia entry on the raid is sympathetic to the Israeli narrative.
Having gained the advantage in the common perception of the raid, Israel has still to confront the more serious legal challenges which constitute a nuisance and a problem to its interests. The nuisance is illustrated by the fact that the defendants have not left Israel since the Istanbul trial opened. The problem lies in the fact that Turkish courts are independent of government interference. There is also scope for further charges to be brought against other defendants, including those considered directly responsible for the nine deaths and 156 casualties, 52 of whom suffered serious injury.
To help free Israel of these legal impediments while making minimum concessions to justice, President Obama stage-managed an apology via telephone link from Prime Minister Netanyahu to Prime Minister Erdoğan on 22 March. Without consulting the victims, Mr Erdoğan accepted the apology “on behalf of the people of Turkey”. (It was not thought necessary for Mr Netanyahu to apologize to Mr Obama for the unlawful killing of 19-year-old Furkan Doğan who had sole US citizenship.) However, many Turks were disappointed when it became apparent that their Premier had agreed to immunity from prosecution while accepting that Israel will pay a lump sum into a fund to finance compensation agreed between the governments or awarded by the courts.
Mr Erdoğan had previously said that his requirements for the restoration of diplomatic relations were an apology, compensation for all the victims, and the lifting of the Gaza closure. This was not understood to be a bargaining position, but were minimum requirements for a settlement. Israel has since made it plain by word and deed that its siege of Gaza will continue. The fishing zone has again been unilaterally reduced from six miles to three miles offshore, while last month the sole commercial crossing at Kerem Shalom was closed for 17 days and Erez crossing was also closed for seven days. It was this collective punishment which originally inspired the Freedom Flotilla, and it is only the compliance of the Turkish government (which continues to withhold the requisite maritime permits) which prevents the Mavi Marmara from making a second attempt to break the Gaza blockade.
Nevertheless negotiations between the governments of Israel and Turkey continue apace. In order to facilitate immunity from prosecution it is thought that Article 19 of the Turkish Constitution might be invoked whereby international agreements overrule domestic legislation. But since the Turkish parliament is not allowed to make decisions adversely affecting basic human rights, such legislation could be annulled by the Constitutional Court.
Meanwhile the families of the martyrs along with İHH (the ship’s owners) and lawyers working on the case have publicly declared that any agreement which fails to meet all criteria will be a complete waste of time. They remain steadfast in demanding justice and adequate compensation for all the victims, regardless of nationality. They also reject the apology as inadequate, recalling that in June 2010 Benjamin Netanyahu described the victims of the assault as ‘terrorists’. For this malicious slander they insist that he must personally and publicly apologize. They also demand an unreserved apology for all the Israeli crimes committed during the attack, including willful killing, attempted willful killing, intentionally causing serious injury, plunder, hijacking maritime vessels on the high seas, intentionally causing damage to property, and instigating violent crime.
At its next session on 10 October the Istanbul court is expected to declare the four defendants fugitives from justice, issue binding arrest warrants and ask INTERPOL to issue extradition orders. But Israel’s greatest problems may yet come from The Hague. The scope of jurisdiction of the International Criminal Court (ICC) includes war crimes, and crimes against humanity. Because this incident meets all the criteria of the Rome Statute, the Union of the Comoros (the flag state of the Mavi Marmara) deposited a referral with the Chief Prosecutor of the ICC on 14 May. The Chief Prosecutor announced a preliminary investigation the same day, and a pre-trial chamber will decide whether or not to proceed further. Any investigation accepted by the ICC cannot subsequently be withdrawn but must complete its legal process.
In Istanbul on 31 May a vigil will be held on the Mavi Marmara during which there will be a ceremony of commemoration starting at the time the ship was attacked. Survivors of the voyage recall how prior to that savage act of state terrorism, the members of the 32 nations on board had created a remarkable commonality of humanity which many remember as the best days of their lives. With that as inspiration they are not going to abandon their struggle against abuses of human rights.
– Richard Lightbown contributed this article to PalestineChronicle.com.