ANALYSIS: Why Turkey deal sort of ends ‘Marmara’ at ICC

T. Belman. After reading this article on the legal exposure, I am convinced that the settlement had no validity. Nor do I think there was any reason to give anything on Hamas or Gaza. My belief it was driven by the need for a gas deal. Without such a deal, Israel could not justify to enormous investment to transport the gas to Europe.

JE Dyer wrote that the deal was done at the urging of Russia. I posted her comment at bottom of this article.

By Jonah Jeremy Bob, JPOST

That is right. As with many things legal, the deal is not entirely clear-cut and the flotilla is not entirely over.

The asterisk involves the controversial sea battle on May 31, 2010 between members of the Turkish NGO known as the IHH Humanitarian Relief Foundation and IDF commandos.

In that encounter off the coast of Gaza, the naval commandos killed nine IHH activists who attacked them when they boarded the MV Mavi Marmara to stop the ship from running Israel’s blockade of the Gaza Strip.

For six years, Turkey and supporters of the IHH group have tried to bring Israeli officials up on war crimes in Turkey, foreign courts and the International Criminal Court in The Hague.

But Turkey cannot technically close the war crimes file at the ICC because it did not submit it to the court directly, but rather via the relatively unknown Indian Ocean island state called the Union of the Comoros.

Comoros was used by IHH supporters as a vehicle for filing the war crimes complaints to the ICC, because there were ships in the flotilla with connections to it, giving the former French colony the right to have a voice.

However, once a war crimes complaint is filed, the filer loses control of it and the ICC prosecution may now decide on its own what to do regardless of who filed the complaints.

That is the bad news. The good news is that ICC chief prosecutor Fatou Bensouda is vehemently against this case.

She has already tried to close the file without a full criminal investigation, saying 10 casualties is simply not a large enough incident to get the ICC involved, regardless of whether what Israel did was illegal.

When an ICC pretrial chamber in a split 2-1 vote ordered her to rethink her decision, she was so against the case that she appealed to the ICC’s top Appeals Chamber to help her quash the proceedings.

In November 2015, the chamber in another split vote of 3-2 sent mixed signals about whether it agreed with Bensouda to close the file or the ICC lower court, to dig deeper into it.

On one hand it analyzed some esoteric legal procedural issues, declaring that Bensouda could not ignore the lower ICC court. On the other hand, the ICC Appeals Chamber told her that even as she has to dig a bit deeper into the file, she still has the ultimate discretion over whether to close the file.

Bensouda had argued that the lower court’s ruling was so harsh on her and in its description of Israel’s actions that she needed the ICC Appeals Chamber to jump in and save her from its negative ruling and abrasive tone.

The Appeals Chamber essentially said: Ignore the harsh language and tone, you can still do whatever you want and once you have given the issue more thought. If you stick to your guns, the pro-flotilla side, the Union of Comoros, cannot ask any ICC courts to second-guess you again.

Even before the Turkey-Israel deal, it was most likely that Bensouda would close the file once and for all, particularly since the votes by both courts were split, showing she has supporters among the judges.

With the deal sealed, her doubling down to close the case becomes a virtual certainty and just a question of time.

Comment by J.E. Dyer who is is a retired US Naval intelligence officer who served around the world, afloat and ashore, from 1983 to 2004.

I’m more concerned about the regular contacts Turkey will be having with Hamas. I realize that Turkish “aid” will be going through Ashdod and be inspected there before it’s allowed into Gaza, but the prospect of state-sponsored Turks prowling Gaza – inevitably consorting with Hamas, as that’s the reality there – doesn’t have “good idea” written on it in any language. Nothing I can do about it, however, so I have to hope Bibi knows what he’s doing.

If I were sniffing for un-usual suspect(s) out behind the barn on this one, I’d be looking for Russians. Benevolently helping Turkey and Israel reconcile – both of them inclined to prefer the old Syrian status quo over some Obama-brokered jackassery with random Sunni insurgents – is exactly the kind of deep game Putin’s Russia would be playing. (When evaluating Russia’s likely role, always, ALWAYS look at a map. Notice anything pincer-like about Turkey and Israel vis-à-vis Syria?)

It’s quite telling that Erdogan’s “regrets” to Russia over the aircraft shootdown seemed to be connected with this rapprochement, and that the Turks went out of their way to mention their thanks to Obama, regarding the warming relations with Israel, even though there’s basically been zero evidence of any genuinely notable involvement by the US. Honestly, that uninformative, out-of-the-blue allusion comes off like something Turkey was put up to. A sort of oblique signal that the US isn’t going to object to any of this (and apparently takes no interest in any of its implications).

What priority items would Turkey be getting out of this? Access to Gaza, and a guarantee of some kind about reining in the Kurds on the Syrian side, and Turkish involvement in the long-term disposition of Syria. The latter two are the top priorities for Ankara.

What would Israel be getting? Besides official supervision of Turkey’s access to Gaza, my guess is the number one operational priority – freedom of military action on the Syrian side of the Golan – and assurances about a friendly posture from Russia and Cyprus regarding gas development in EastMed (along with other general policy concerns in that area). Russia is in a unique position to guarantee that Israel can exercise a veto over a security buffer of some description in Syria. And Russia can vouch for Cyprus on gas development policies – and is increasingly in the best position of any major power to “help” Israel in the area with Syria, Egypt, Turkey, and even Lebanon.

It’s a brave new post-American world out there. The differences are starting to show.

I replied:

Jennifer, I have trouble accepting your analysis.

Why is it in Russia’s interest to have Israeli gas going to Turkey and then to Europe.To date they have been Russian markets.

It is true that in the last little while, Erdogan has apologized to Russian and Russia has been supportive of Israel doing this deal with Turkey.

At the same time Russia is supportive of Kurdish independence. Why would Russia abandon the Kurds? Does Russia really need the Turks to support Assad. It seems that Saudi Arabia has come around on this and is now supporting Assad.

June 28, 2016 | Comments »

Subscribe to Israpundit Daily Digest

Leave a Reply