The Turkel Committee, which investigated the 2010 Israel Defense Forces sea raid on the Mavi Marmara as it tried to break the Gaza blockade, recommends dramatic changes in the way decisions are made about opening investigations of possible war crimes by IDF soldiers against Palestinians.
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The committee, made up of Israeli and foreign dignitaries, states that the decision whether to open a criminal investigation should not be in any way dependent on the results of operational investigations conducted by the army, contrary to the IDF’s position on the matter.
In January 2011, the panel submitted the first part of its report, which dealt with the failures that occurred during the seizure of the Mavi Marmara in May 2010. Since the release of the first section, the committee has been working on the second part, which deals with Israel’s methods of investigating claims that its security forces violated the rules of war or international law.
This section of the report, some 1,000 pages long, was submitted today to Prime Minister Benjamin Netanyahu.
The committee interviewed a long list of government officials, representatives of human rights groups and experts in international law. It also reviewed dozens of files from IDF investigations to examine procedures and the process of deciding whether to open an investigation. The committee also compared Israel’s procedures to military investigation procedures in the United States, Canada, Australia, Great Britain, Germany and the Netherlands.
The committee determined that Israel’s oversight and investigation procedures “in general meet the requirements set by international law.” However, the panel suggested numerous changes, some of them far-reaching, which various officials in the defense establishment and the intelligence community are already opposing.
The panel suggests using legislation to establish new and obligatory norms regarding the responsibility of the diplomatic echelons and the senior army brass for alleged violations of international law committed by their subordinates in the West Bank and Gaza.
“The law should impose direct criminal responsibility on commanders and their civilian superiors for violations committed by their subordinates, if they do not take all reasonable measures to prevent these violations or do not bring those responsible to justice when they find out about violations after the fact,” the report states.
Part of the report deals with the interrogations conducted by the Shin Bet security service. The committee recommends significantly increasing the external oversight of Shin Bet investigations, adding that complaints by those interrogated should be transferred to the Justice Ministry department for the investigation of police officers.
The panel also states that contrary to current procedure, all Shin Bet interrogations should be videotaped, under guidelines to be determined by the attorney general in coordination with the head of the Shin Bet.
Committee members did not hesitate to attack one of the IDF’s sacred cows, the operational investigations of troublesome incidents that the units conduct themselves. The panel invalidates the current policy, under which the conclusions of these operational investigations have a decisive influence on the military advocate-general's decision on whether to open a criminal investigation against soldiers or their commander.
“An operational investigation is not meant to decide whether to launch [a criminal] investigation,” the report states. “There should be a mechanism established for conducting a factual assessment, on the basis of which the military advocate-general will decide whether an investigation should be opened."
The committee advised setting up a special team of combat officers, jurists and Military Police investigators, who will deliver information to the military advocate-general that is independent of the IDF’s operational investigations. Furthermore, the team will collect information from complainants and witnesses who aren’t soldiers. This way, the panel posits, the military advocate-general will have better tools for deciding whether to open a criminal probe.
The committee stated that although the IDF chief of staff had years ago required that any incident in the territories involving Palestinian casualties be reported, this order was not being implemented. The panel recommended anchoring this requirement in the IDF’s Senior Command Guidelines and to impose it as well on police or Border Police forces operating in the territories under the auspices of the IDF.
“The reporting requirement must be assimilated and sanctions imposed on commanders who do not fulfill this requirement,” the panel wrote.
The committee noted that many times investigations are not launched, or are closed without an indictment, due to lack of evidence. The panel recommended that the scene of every incident be documented and that every possible piece of evidence saved, in case an investigation is opened. The committee also recommended a “timeframe of a few weeks” from the time a suspected violation is reported until a decision on whether to launch a probe is reached.
The panel also called for setting up a special Military Police department to deal with claims of alleged war crimes, which should include Arabic-speaking investigators so that proper testimony can be taken from Palestinian complainants.
The Turkel Committee also recommended boosting the authority and the independence of the military advocate-general. “The authority of the military advocate-general to order an investigation should not be conditioned on consulting with the general responsible for the unit involved in the incident,” the report states.
The panel also calls for legislation that would make the military advocate-general professionally subordinate to the attorney general, and not to military commanders.
The military advocate-general should be appointed by the defense minister and not by the chief of general staff, and the nomination should be based on the recommendations of a professional search committee chaired by the attorney general, the panel writes. The military advocate-general should have a set term of six years with no extensions permitted, and his rank should be fixed, so that he is not dependent on the chief of staff for a promotion.
In addition to increasing the military advocate-general’s independence within the army, the panel suggests that the military advocate-general’s work be overseen by the attorney general. The panel also suggested that the Justice Ministry open a special department to deal with military law.
In addition to former Supreme Court Justice Jacob Turkel, who chaired the committee, members included Maj. Gen. (res.) Amos Horev, former Foreign Ministry director-general Reuven Merhav, and law Prof. Miguel Deutch of Tel Aviv University. The panel also included two foreign observers: former First Minister of Northern Ireland David Trimble, and former head of the Canadian military's judiciary, Judge Advocate General Ken Watkin.
In the course of the committee’s work, Watkin was replaced by Prof. Timothy McCormick of Australia, who serves as a special adviser on International Humanitarian Law to Prosecutor Luis Moreno-Ocampo at the International Criminal Court in The Hague. The panel received assistance in writing the report from a network of international law experts from all over the world, whose work was coordinated by the committee’s secretary, attorney Hoshea Gottlieb.