Justice for victims of Gaza flotilla raid?

Last month - nearly six and a half years after Israeli commandos stormed a flotilla taking aid to Gaza - the governments of Israel and Turkey struck a deal: diplomatic relations withdrawn over the attack have been restored; Israel has donated $20m (£16m) to relatives of ten passengers killed in the raid; and it is reported the two countries will partner in a plan to exploit gas fields off the coast of Israel to mutual economic benefit.

The case of the ‘Gaza freedom flotilla’ - from Turkey’s and Israel’s perspective - would appear concluded.

Yet for victims these diplomatic manoeuvres - far from representing settlement - directly threaten their right to receive justice. Israel’s donation comes ex gratia - with no admission of liability - no apology and only an expression of ‘regret’. It is intended solely for the families of those who died in the attack while survivors, including individuals who were seriously injured and abused, are to receive nothing.

And it comes with a requirement that no legal action will be taken against Israel or its citizens by any victims or the families of those killed.

Over the last six years more than 700 individuals representing nationals of 37 countries have been pursuing a series of lawsuits around the world to bring the state of Israel and its representatives to account.

Proceedings are under way to open a case before the International Criminal Court in The Hague, as three ships in the six-boat flotilla were registered to countries that are ICC signatories; a second case is currently before the federal court in Washington DC on behalf of American and other victims; a third is in progress in Los Angeles, California against Ehud Barak, former Israeli prime minister - and defence minister at the time of the attack - on behalf of a 19-year-old US student killed at point-blank range by bullets to the head.

But arguably the most significant case, representing all the victims collectively, is a criminal action against four Israeli generals currently before the High Criminal Court in Istanbul, the place from where the flotilla set sail. Here British, Canadian and American victims have joined their Turkish compatriots and many others in providing written accounts and taking the stand to give oral testimony.

Before this court Israel’s violent attack on their peaceful attempt to deliver humanitarian aid to Gaza is being intricately documented.

To date the Turkish government has been publicly supportive of this multinational legal action, and though the majority of victims are Turkish, has rightly called for universal reparations.

But the Israeli deal is no such just compensation. No victims or their families were consulted or involved in any way in this supposed ‘settlement’. The validity and enforceability of this agreement under international, European and Turkish law is highly questionable.  

Regardless, the plaintiffs now fear the deal may see the High Criminal Court in Istanbul pressured to terminate their case when it reconvenes on 19 October. This would make them victims of not just one but two wrongs: first the attack on the flotilla, and second a legal injustice delivered by the very court they sought as a place of redress.

Given everything that has occurred in the Middle East since the flotilla attack in 2010 it could perhaps be argued that victims should just take what is on offer and move on. The rise and fall of the Arab spring, the toppling of an elected government in Egypt, the horrors of Syria and Libya, the rise of Islamic State and a war in Yemen – all may seem of far greater significance.

In 2016 it is clear the stable nations of the Middle East – as Turkey and Israel must be seen to be – must work together if there is to be lasting peace once these multiple conflicts come to an end. But that is precisely why the terms on which older differences and conflicts that pre-date the region’s more recent crises are reconciled are so important.

They should be a benchmark by which current events might be resolved in future, contribute to the Israel-Palestine peace process and act as a deterrent to further acts of violence in that long-running conflict.

The Israel-Turkey agreement does none of these things. It leaves all victims of the Gaza flotilla attack sidelined in the interests of politics and a gas deal. If geopolitical considerations do indeed prevent them from obtaining justice, what hope is there for upholding the rule of law in the Israel-Palestine conflict? What hope can there be for those who have suffered in Syria or Iraq from ever obtaining any semblance of justice for crimes committed against them?

That the government of Turkey would seek to mend relations with Israel, build economic ties, and plan for cooperation in the Middle East is clearly understandable. So is the fact that diplomacy always involves compromise.

But justice does not: it is about what is legally right and wrong. Israel’s attack on the Gaza flotilla was unlawful, without justification, and a crime against hundreds. Justice will never be served unless all of its victims receive closure, recognition of Israel’s accountability and a genuine remedy.

And this will never be possible through closed-door political machinations: it will only come through the transparent and public proceedings and findings of an independent court.

Rodney Dixon QC practises international law and human rights at Temple Garden Chambers in London and represents victims of the Gaza flotilla before multiple courts across the world