International law professor Aeyal Gross has written in Haaretz that, in its Part 2 report which was presented to Israel’s Prime Minister Benyamin Netanyahu on Wednesday, “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”.
That was an understatement. But, it was just the beginning. Aeyal Gross added that “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”. This is published here.
Yossi Gurvitz, blogging for Yesh Din [his post was picked up and republished by +972 Magazine], wrote: “the Committee’s recommendations, which are in fact a silent yet piercing indictment of the way the military judicial system has been operated so far, are in direct contradiction of its claim that ‘the apparatus of investigation of complaints and claims about violations of the laws of warfare existing in Israel are, as a rule, in accordance with the obligations of the government of Israel according to the rules of international law’. Excuse me? You’ve just turned the whole system upside down, the whole way the investigation system has been going on for decades. You’ve separated the operational briefing and the criminal investigation; you’ve fortified the position of the CMA [Chief Military Advocate or Military Advocate-General], drawn a moat around it and populated it with crocodiles; you’ve broken the insistent demand of the Shin Bet – which it made for many years – to avoid recording its interrogations, and more. Why did you go to all this trouble? If the apparatus, is ‘as a rule, in accordance with the obligations of the government of Israel according to the rules of international law’, why was this earthquake necessary? Everything’s fine, no?” This is posted here.
Amos Harel reported in Haaretz that “A senior retired Israel Defense Forces officer, who filled several senior command positions in the territories going back to the first intifada, once said that he would make it a point to rush to the scene of every incident that raised suspicions of soldiers killing a Palestinian even though their lives were not endangered. ‘If you got there a quarter of an hour late, forget it’, he said. ‘By then the commanders and their soldiers had coordinated their versions [of the incident] and chances were you’d never find out what really happened’. These observations have 45 years’ worth of confirmation, and it wouldn’t be surprising to learn that they are relevant to a series of recent incidents in the West Bank in which soldiers killed four unarmed Palestinians, including a young woman and two teenagers. The Turkel Committee says pretty similar things, albeit in legal language and a more restrained tone. The panel notes that several western countries to which Israel was compared had in recent years made structural changes to increase the independence of the investigatory bodies and improve the external oversight of the security forces’ examination procedures. The report observes drily that while Israeli mechanisms for investigating incidents in the territories fulfill the demands of international law, policy changes are advised ‘to establish practices’ more clearly. In its polite way, the committee expresses a lack of confidence in the way legal procedures are conducted. To improve the processes of examination and control, it recommends imposing personal responsibility on commanders who do not prevent their soldiers from committing serious crimes or who do not investigate them properly after the fact. The committee notes that the procedure fixed by the IDF chief of staff in 2005 regarding reporting Palestinian casualties is not being implemented … Former military advocate-general Avichai Mandelblit saw how things were developing, and in April 2011 he changed IDF policy and ordered a Military Police investigation of every incident of soldiers killing a Palestinian in the territories. Such investigations had been markedly reduced during the years of the second intifada, on grounds that most Palestinians were being killed during military confrontations. But data released today by the B’tselem organization show that of the 12 investigations opened since the orders were changed, not one has been completed. Turkel’s proposals aim to expedite these investigations”… Harel’s analysis is posted here.
Aeyal Gross consulted several Israeli experts on international law for his take on the Turkel recommendations: “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 … 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”.
Gross also wrote that “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 … 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”.
Gross said that the experts “cited the need for an outside effective independent system that would not allow the continued situation in which the IDF investigates itself”.