What is the entity that can and should investigate the conduct of the Israel Defense Forces, to see to it that standards set by international law have not been violated, and in particular that the IDF has not committed war crimes?
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That is the issue that the Turkel Committee addressed in the second portion of its report. The first portion was publicized in January 2011, but the second part, dealing with these issues, was presented to Prime Minister Benjamin Netanyahu on Wednesday.
Headed by retired Supreme Court Justice Jacob Turkel, the public panel of Israelis and members from abroad and observers from abroad was convened to investigate the confrontation in May 2010 between the Israel Navy and a Turkish flotilla seeking to break the Israeli blockade of the Hamas-controlled Gaza Strip. Nine passengers aboard the Turkish ship the Mavi Marmara were killed in the confrontation.
The Turkel committee made 18 recommendations in an effort to improve the mechanisms through which investigations of IDF conduct are carried out. In principle, the committee noted, existing procedure complies with the requirements of international law, although there are certain areas in which there is room for improvement, including actual change in policy.
The recommendations are designed to improve investigation procedures in the future, the committee said, and should not be construed as suggesting that the manner in which investigations have been carried out up to now, including the IDF's investigation of the flotilla incident, was flawed.
On the positive side, among the newly released recommendations were those relating to the need to explicitly integrate into Israeli law the rules regarding war crimes and to pass a law that imposes responsibility on IDF commanders and their civilian superiors for violations committed by those who report to them. That responsibility arises when the commanders or their superiors do not take reasonable steps to prevent those violations or do not act to bring those who committed such acts to justice. Those two recommendations are consistent with what international law requires.
When it comes to those who would carry out such investigations, the Turkel Committee also has a number of recommendations designed to ensure the requirements of independence, effectiveness, thoroughness, speed, transparency and a lack of bias. The panel recommends that a unit of the Justice Ministry be established that would specialize in the laws of war, thereby enabling better oversight by the attorney general of the chief military advocate general and the chief military prosecutor. It would also create a mechanism through which the independence of the military advocate general could be enhanced.
With regard to the issue of failure to report harm to Palestinian civilians, the panel recommended that further effort be made to ensure reporting and suggested that a special department of the military police investigations department be established to investigate such incidents. The panel's recommendations regarding documentation of investigations, including those involving the Shin Bet security service, are also important. If implemented, they are likely to help address serious flaws which organizations that testified before the panel cited regarding claims of harm to Palestinians.
It appears the panel was convinced there is substance to the argument that the current practice is insufficient and that a large number of changes are necessary. It can be hoped that the panel's suggestions will in fact be put into practice rather than simply buried, as was the case with the recommendations of prior investigative panels.
Nonetheless, when it comes to everything related to civilian oversight of investigations carried out by the IDF, there is a difference of opinion between the conclusions of the Turkel Committee and some international law experts that have investigated the subject and who presented their positions to the Turkel panel. While the panel endorsed the propriety of the IDF's investigative system, subject to its recommendations, two experts, Yuval Shani and Amichai Cohen, expressed the view that the existing mechanisms are flawed and inadequate, requiring substantial alternation if they are to comply with the requirements of international law. The current system, they claim, does not meet the minimum investigative standards that international law requires for an effective and honest process. It fails to meet the requirement of a prompt investigation, they say, and it is also not transparent or properly overseen by civilian authorities.
They cite the practice of conducting operational debriefings as a substitute for a criminal investigation and the broad discretion given to the military advocate general as just two examples of problems. Another expert, Eyal Benvenisti, took the position that problems existed in the way the conduct of troops in incidents was being investigated. He cited an alleged lack of independence, particularly in light of the role of the military advocate general not only as legal adviser to the army but also as the party that is to investigate wrongdoing in the IDF. "Would a commander in the military advocate general's office who permitted the use of particular armaments be able to impartially look into a complaint over their illegality after the destructive result of their use is revealed?" he asked.
The Turkel Committee did in fact agree with the experts who argued that it was not possible to rely on operational debriefings as an investigative tool. But the experts took the position that a civilian entity with oversight authority was required to ensure the real independence of the investigation. Shani and Cohen suggested setting up a standing independent committee headed by a retired judge who would be joined by government representatives as well as representatives from the public and academia. Such a panel, the two experts said, would have investigative authority and could provide a formal opinion on the legality of particular actions and refer cases to the military advocate general. The changes that the Turkel Committee is proposing, important as they may be, apparently do not meet the demands spelled out by these experts to ensure truly independent investigations.
The Turkel Committee found that investigation of senior figures from the civilian and political echelons by official investigative committees and commissions of inquiry as Israel has carried out are consistent with the duty under international law to investigate suspicions of serious violations of the laws of war. In practice, however, it appears that the investigative panels are generally not an adequate solution because they are usually convened by the government, the very party whose conduct is being investigated and may never actually be convened at all. For that reason, Shani and Cohen proposed that the standing civilian investigative panel that they suggested also deal with this aspect of the issue.
If that is the case, it appears that despite the lengths to which the committee went, at the end of the day it found the current investigative mechanisms adequate, even if they needed some adjustment. And that runs counter to the stance of experts who cited the need for an outside effective independent system that would not allow the continued situation in which the IDF investigates itself.
It should be remembered that independent investigation in Israel of suspicions of war crimes also has implications for the pursuit of criminal proceedings against Israelis abroad. The Rome Statute of the International Criminal Court in the Hague, upholds the principle of Complementarity and has no authority over cases that have already been investigated genuinely by the relevant country. If the Palestinians recognize the International Criminal Court in a manner that could give rise to investigations against Israelis, an examination of the genuine nature of the investigation that was carried out in Israel on these cases would play a central role in whether the Court in the Haguewould decide to take on a case or conclude that Israel already investigated it thoroughly. The quality of Israel's investigation of suspected violations of international law could also affect the conduct of countries that claim universal jurisdiction to try suspects even if the alleged crimes did not occur within their borders.
It should also be remembered that whatever investigative mechanism is in place, it should not only be independent, effective, thorough, transparent and prompt. It should also be endowed with a quality that law alone cannot impart, and that is courage. The investigative system and those who work within it must be sufficiently courageous to ask the tough questions about the manner in which the IDF employed force.
Writing in Haaretz last month about the IDF's rules of engagement, Avner Gvariyahu, an activist with the organization Breaking the Silence, described how in practice, despite the official rules, there are also "flexible" rules in the IDF that allow soldiers to open fire on unarmed Palestinians and that there is a sense in the army that every Palestinian is considered a target. This, Gvariyahu said, makes soldiers light on the trigger. Dealing with such a deep-seated issue in Israel today requires an investigative system that is independent not only from an institutional standpoint but also from an intellectual one.