Analysis: Show me the money

A look at the legal context of the Israel-Turkey compensation negotiations.

Turkish flotilla anniversary rally 370 (photo credit: REUTERS)
Turkish flotilla anniversary rally 370
(photo credit: REUTERS)
The real negotiations between Israel and Turkey to put the 2010 Mavi Marmara flotilla incident behind them have only just begun.
With three years of arguing over whether there would be “regret” or an “apology,” the real fight comes down to the money, with reports indicating Turkey wants $9 million, or $1m. per dead Turkish citizen and that Israel’s initial offer was $900,000, or $100,000 per victim.
The legal context of the negotiations is the wild and virtually unbounded world of ex gratia payments.
Ex gratia payments – meaning voluntary compensation above and beyond the law’s requirements – have been paid frequently when a foreign airliner, ship or other group of civilians or innocents were killed by an alleged mistake or error.
Sometimes ex gratia payments are a way of showing compassion, short of admitting fault. Many times the payments are paid to promote national interests, such as to preserve the safety of future international travelers of that state from retaliation, or to maintain relations or mitigate the damage to relations with a friendly or important foreign nation.
In other cases, nations have made ex gratia payments to help the process of retrieving hostages or to remove diplomatic obstacles to leaving isolation and rejoining the international community.
The amounts paid per victim have varied as widely as the reasons the payments were made.
In 1968, Israel paid $3,323,500 to the families of the 34 dead crewman of the USS Liberty naval vessel, following a 1967 incident in which Israeli aircraft and motor torpedo boats attacked the ship in error.
The breakdown comes out to $97,750 per person. That is not far from the current Israeli offer to Turkey, but it is logical that increased salaries, costs and inflation should make the number higher today.
In 1988, the US paid Iran $61.8m. to the families of 290 dead passengers on Iran Air Flight 365, a civilian airliner, after the USS Vincennes shot down the airliner in error under suspicion that it was a military aircraft.
The breakdown then came to around $213,000 per person – far above the Israel offer and still 25 years ago.
Starting in 2002, Libya paid at least $2.16 billion to the families of 270 dead passengers on Pan Am flight 103, known as the Lockerbie bombing, after the airplane was blown up in midair, allegedly by Libyan agents in 1988. Here the breakdown is tricky, because large portions of the compensation went to high-powered law and lobbying firms who were working on the case for the families for almost 15 years.
Because there were so many professional fees to pay, so much time had passed and Libya was paying the funds as part of a much greater general rapproachment to allow it to be free of sanctions, the “terrorism” label and to generally rejoin the international community, the amount per person was much greater.
Still, even after all of that is taken into account, the amount per person was certainly more than the $1m. being sought by Turkey.
In both the Lockerbie case and in a separate case in which Iraq was supposed to pay $27m. to the US over a 1987 incident, intervening new incidents in the middle ended up causing a halt to the payments, which had no legal enforceability.
There are countless other examples of the US compensating families in Iraq, Afghanistan and other places, while Israel has compensated the Palestinians and the UN, and non-democratic countries like China have compensated rivals like England.
In the end, the most important factors for determining compensation are arguably the reasons the country has decided to make the ex gratia payments.
Sympathy may be a weaker and cheaper reason that a raw national interest.
Israel wants Turkish cooperation on a number of fronts and wants the Turkish case against its top military commanders during the Marmara incident to disappear.
Despite the families of the dead from the Marmara opposing any deal for money, Turkey’s government brought the case, as state’s bring basically all criminal cases, and, at least legally, can make it go away whenever it wants to.
Maybe Israel will pay more for greater normalization, or Turkey will take less so it can maintain some diplomatic tension while the two states still dispute the Gaza blockade.
Since there is no legally enforceable deal, the two countries will likely meet in a place that reflects who has a more pressing, and stronger need for reconciliation.