The case against Mehmet Hakan Atilla increasingly appears to be politically charged when you consider that several similar cases in the US have ended in fines, not criminal proceedings.
Mehmet Hakan Atilla, Turkey's Halkbank executive, is being charged with violating US sanctions on Iran. The high profile case involves Reza Zarrab, the Turkish-Iranian businessman who struck a plea bargain and is now the prosecution's star witness. Halkbank is a state run bank. But who is really on trial here?
US sanctions are imposed on Iran through the Office of Foreign Assests Control (OFAC), which administers and enforces economic trade sanctions based on US foreign policy.
OFAC gains its enforcement authority solely from declarations made by the US President to regulate commerce in times of emergency as set forth in the International Emergency Economic Powers Act. OFAC usually imposes substantial financial penalties directly on the violating party without recourse to the criminal courts like in the Zarrab case. One of the largest fines by OFAC issued was against BNP Paribas in 2014 for $963 million.
Since the Joint Comprehensive Plan Action in January 2016, the US has lifted most sanctions on Iran and suspended most secondary sanctions pertaining to the activities of non-US companies and non-US persons engaging in business involving Iran.
However, as this is all US domestic law and policy, for any such declarations by the US president on international commerce regulation to have effect beyond it own borders, in any other country, it would need to have some grounding in an international instrument – which this does not have.
Turkey is a member of the United Nations and it is only bound by sanctions imposed by the UN.
The Security Council of the UN can take action and implement sanctions measures to maintain or restore international peace and security under Article 41, of Chapter VII of the United Nations Charter. However, for a sanction to apply internationally the sanction resolution must pass the Security Council with a majority vote and without a veto from any of the five permanent members.
So, any US sanctions would need to be drafted into a UN resolution for it to be applicable to Turkey. Otherwise, such unilateral sanctions as implemented by the US can be considered a violation of not only the sovereignty of Turkey but also a violation of international law.
Turkey has not acted in violation of any of the UN resolutions and there is currently no bilateral binding agreement between Turkey and the US whereby Turkey must enforce US sanctions imposed on Iran. On the contrary, Turkey has bilateral relations with Iran that are in accordance with UN resolutions.
Therefore, it doesn’t matter how much evidence the US court has that the deputy manager of a bank in Turkey was aware of the sanctions—most people are generally aware of the sanctions imposed on Iran—what matters is that the bank in Turkey and its manager are not actually bound by US sanctions or any such regulations in the US.
If there were any such falsified documentation in Turkey carried out by any bank as is alleged by the prosecution, the only law it would be subject to would be Turkish Criminal Law under Article 204 on Counterfeiting Official Documents. This does not fall under US regulations as the alleged act of forgery was not carried out on US soil.
Furthermore, under Article 90 of the Turkish Constitution the implementation of international agreements in Turkey is subject to the ‘adoption by the Grand National Assembly of Turkey by a law approving the ratification’.
Inevitably, the sanctions imposed in the US have no legal standing in Turkey whatsoever unless they are ratified by Turkey. So, under these circumstances it should actually be the bank managers of any US banks or financial institutions on trial, not the deputy bank manager of a bank in Turkey – where all the transactions took place within Turkey and that do not have any connection with the US financial system.
However, now that it has been established Zarrab is not being tried in the case, it is becoming more and more evident he was only used as bait so that they could fine a Turkish state bank - which the Office of Foreign Assets Control has done to other banks before, but without initiating criminal proceedings.
Which begs the question: have we been wrong all along, that this was not about Zarrab and his illegal transactions, money laundering, sanction evasion and use of the US financial system? Was this all about bullying Turkey into abiding by US sanctions?
Any such process would have dire implications for the sovereignty of any nation and considering the fact that the sanctions have since been eased, unfortunately gives rise to the controversy that the case must be politically charged.
So were these conspiracy theorists correct? I still had doubts about these theories until the chief US prosecutor and judge took the most uncommon course of action for a man of the court and responded to criticisms of the trial by Turkish officials. It is extraordinarily uncommon for prosecutors or judges to provide any sort of statement on pending cases which makes one think that they must be feeling guilty about something if they felt the need to stand up and explain themselves.
Unfortunately, we can all foresee the outcome, a hefty fine will have to be paid off by Turkey as the bank in question is a state bank. This speaks volumes about the principle of 'innocent until proven guilty’ when we can all find the what the verdict might be, on Twitter and other places from day one.
What’s most important here is that since the start of the Trump administration the principle of the rule of law in the US has been under scrutiny.
This trial will prove if the US is governed by a system of law with an impartial judiciary, as the principle sets forth, or if it is the individual decisions and pressure of officials that have influence and authority over US courts.
Disclaimer: The viewpoints expressed by the authors do not necessarily reflect the opinions, viewpoints and editorial policies of TRT World.
We welcome all pitches and submissions to TRT World Opinion – please send them via email, to firstname.lastname@example.org