As Dr. Ahmet Doğan drove from his home town of Kayseri to the Istanbul airport on 3 June 2010 – three days after Israel attacked the Mavi Marmara and killed nine unarmed activists taking humanitarian aid to the occupied Gaza Strip – he was still firmly confident his son Furkan was returning home to him. When the recent high school graduate was not among the crowd who disembarked from three planes bringing back Turkish flotilla passengers who had been detained in Israel, Doğan still did not lose hope.
And when he’d heard reports that Israeli commandos threw overboard some passengers of the Mavi Marmara – the ship Furkan had been on – he sat down, buried his head in his hands and “felt that boiling water was poured over me,” he said. But even that momentary panic passed when the president of the human rights organization IHH, which sponsored some of the flotilla’s vessels, said three Turkish residents were still being detained at the airport in Israel. There was also the possibility Furkan had been injured and diverted to Ankara with others. Or because he carried American – but not Turkish – citizenship, perhaps he’d been sent to the United States.
Such were the racing thoughts of a loving father desperately trying to learn the whereabouts of his youngest child, three days after the Israeli navy commandeered the Freedom Flotilla’s six vessels in international waters, in contravention of international maritime law. After calling relatives in Ankara and Chicago to no avail, Doğan began to consider the unfathomable: perhaps Furkan was one of the three unidentified bodies lying in the morgue at the forensics department in Istanbul.
So he left the airport and went the short distance to the forensics building. He found his 19-year-old son lying among the unidentified victims, his young body riddled with bullets that, according to a UN report, were fired execution style at “point-blank” range. The report was published and submitted to the UN General Assembly on 27 September 2010.
The report, the result of an independent investigation conducted by the Office of the United Nations High Commissioner for Human Rights (OHCHR), found Israel responsible for “grave breaches of the Fourth Geneva Convention,” and guilty of “willful killing, torture or inhumane treatment, and willfully causing great suffering or serious injury.” Furthermore, the killings of at least six of the passengers were in a manner “consistent with arbitrary and summary execution” (“Report of the international fact-finding mission …” [PDF]).
While recently recounting his story at a Chicago-area hotel, the mild-mannered but stoic accounting professor suddenly fell silent and looked off into the distance, his words spent. What had started out that June day as a confident journey portending reunion had turned unexpectedly into mindless tragedy.
And now this week, Doğan and his lawyers Ramazan Aritürk and Uğuur Sevgili, of the Istanbul-based Elmadag Law Office, are in Washington DC, “considering all their options,” which may include filing a civil case against Israeli authorities. The trio is holding meetings with officials from the US State Department, the Department of Justice and the Senate Appropriations Committee through Friday. They want to ask the United States to initiate its own investigation into Furkan’s death. Doğan also wants to know why American authorities have shown such little interest in the execution of his son.
Since the flotilla attack on 31 May 2010, Doğan has received scant information or help from US officials. Out of four letters requesting meetings sent to the US consulate in Istanbul and the US embassy in Ankara, Doğan received one response – a form letter stating his letter had been received, Sevgili said.
A letter sent last fall to Secretary of State Hillary Clinton remains unanswered.
“We’re disappointed with the approach of the US,” Doğan said in Turkish on Sunday. Sevgili acted as an interpreter during the interview for this article. “The fact is, the United States does not protect its citizens.”
On 31 May, US President Barack Obama issued a statement on the flotilla incident, saying the loss of life was “regrettable,” which was similar to the statement put out by the State Department. On 3 June, US Secretary of State Hillary Clinton confirmed Furkan was among the dead and said “We are in constant contact with the Israeli government, attempting to obtain more information about our citizens.”
A report published by the independent Congressional Research Service on 23 June 2010 indicated the US response to the attack was predicated upon politics rather than condemnation of Israel’s violations of international law.
“The United States is caught between two long-time allies – Israel and Turkey – and the Obama administration is interested in finding a path between them that will not antagonize either party. … The administration’s first reaction was circumspect, if not muted,” the report stated.
The reasons are not justifiable to Doğan or his lawyers. To them, US policies and actions are biased and discriminatory.
“According to US policy, all the action taken by Israel is legitimate and legal before the US. Such a double standard has never existed within the history of law,” Aritürk said.
“I am disappointed, but let us see what we can get from legal actions in the US,” Doğan added.
According to Noura Erakat, an adjunct professor of international human rights law in the Middle East at Georgetown University, if Doğan does file suit, it will get thrown out before making it to trial because of the political question doctrine that stipulates the “judiciary should defer to the executive branch” in cases that could impact US foreign policy or the relationship with an ally, she said.
The political questions doctrine originated as a way to define the boundaries between the judicial and the executive and legislative branches of government, and is applied when court cases touch areas such as foreign policy or the ratification of constitutional amendments. However, the rule is vague and is open to broad interpretation. In cases in which Palestinians are plaintiffs against the State of Israel or Israeli authorities, its use is “so extreme as to demonstrate bias,” Erakat said. “It is not just the merits of the case” that determine whether it will proceed through the court system, but its impact on foreign policy or on the relationship between the US and an ally, she said.
“While US federal courts have, through the [Alien Tort Claims Act], become formally available for redressing violations of international human rights, Palestinians have found no judicial recourse in these courts almost without exception. As defendants, Palestinians have no defenses available to them; as claimants, their claims do not withstand judicial scrutiny,” Erakat wrote in an article titled “Litigating the Arab-Israeli Conflict: The Politicization of US Federal Courtrooms,” published in Vol. 2 of the 2009 Berkeley Journal of Middle Eastern and Islamic Law.
This time, however, if Doğan decides to file the lawsuit, the plaintiff would be the estate of an American citizen. But the fact the defendant would be Israeli authorities already precludes a successful outcome, Erakat said.
“The fact the United States does not accept the UN Fact Finding Mission but condemns it, and the fact the executive branch says everything [regarding Israel and the Palestinians] should be decided by direct negotiations leaves no room for the United Nations. It leaves no room for the courts to decide,” Erakat said. “You would need a really creative judge to find an outcome that doesn’t contradict US foreign policy and that’s impossible.”
So, in effect, legal cases involving Israel are politicized because of the judiciary’s deference to the executive branch, among other things.
Whether the Turkish trio decides to pursue legal action in the United States remains unclear and may not be decided until after they finish with all their meetings in Washington this week. Likewise, State Department spokesman John Sullivan deferred commenting on the issue until after the meetings take place, he said in an email.
Putting legal wrangling aside, Doğan boiled down the predicament to one thing: “What I understand from US policy is if Israel is the issue, they can ignore [Furkan’s] citizenship.” Doğan added, “Israel has priorities in its continuing relationship with the US.”
In October, Aritürk and Sevgili were among a delegation of lawyers representing approximately 300 victims of the flotilla raid who filed a complaint at the International Criminal Court at The Hague, Sevgili said. The claim, filed under Article 15 of the Rome Statute, charges Israel with committing war crimes and asks the ICC prosecutor to conduct his own investigation.
“Furkan was generous and helpful,” Doğan said. “You die as you live, and you’re resurrected as you die. Furkan is an example of this. He became a symbol for young people.”
Kristin Szremski is an independent journalist and currently the director of media and communications for the American Muslims for Palestine. Doğan recently was given the Al Quds Award by the American Muslims for Palestine at its annual dinner in February.