Israeli lawyer Michael Sfard tells Turkel Commission that Israel must establish extra-military mechanism to investigate observance of international law

Israeli lawyer Michael Sfard (Yesh Din) told the Turkel Commission at a hearing in Jerusalem today that “conducting an investigation is not tantamount to punishment”.

The Turkel Commission is investigating the “maritime incident” of 31 May 2010, when Israeli Naval commandos intercepted Freedom Flotilla heading to the Gaza Strip and boarded the largest ship in the flotilla, the Mavi Marmara, killing eight men (one a 19-year-old Turkish-American high school student) in the process.

Sfard, who is among other things the legal adviser for Yesh Din, advised the Turkel Commission that Israel must establish an extra-military mechanism to verify if the IDF + its advisers follow international law.

It was the second time, in months of intermittant hearings, that Israeli human rights organizations have addressed the panel.

The Turkel Commission was expected to conclude its work in November 2010, but it only issued the first part of its report on 23 January, which can be read online here.

Arguments made in Sfard’s testimony to the Turkel Commission, according to an English-language summary, state that:
“Since the Al-Aqsa Intifada, a Military Police Criminal Investigation Division (MPCID) investigation is not opened in every case in which a Palestinian civilian is injured during military operations in the occupied territories, but rather is permitted to conduct a ‘command inquiry’ after which a decision will be made regarding whether to open an investigation.

Yesh Din’s Position is that:
1. A command inquiry, as the name suggests, is intended to draw operational lessons and is not a tool designed to collect evidence or to establish personal responsibility. Those who conduct the inquiry are not investigators but rather commanders and they do not possess appropriate training; what is said in the course of the inquiry is not admissible in court; the inquiry is confidential; and
for the most part accounts by those other than soldiers and officers are not heard.

2. The inquiry presents a significant and grave obstacle to the ability to conduct effective criminal investigations of shooting incidents in which Palestinian civilians have been injured. This is a violation of the obligation to investigate”.

“According to Yesh Din’s position the command inquiry does not meet the standards of the obligation to investigate: It is not independent, it is not conducted by investigators, and it typically prevents the opening of a criminal investigation (until a decision otherwise is made). Such a situation thwarts the effectiveness of the MPCID investigation when eventually opened, as in the meantime there is an opportunity for soldiers to coordinate their testimonies, the inquiry is a sort of ‘dress rehearsal’ for the actual investigation, and the time that passes until an investigation is opened is likely to harm the evidence at the scene of the crime and the sharpness of witnesses’ memories. The inquiry is not public. It and its conclusions are confidential – which cancels any possibility of appeal. Typically, it does not include the voices of the victims of the incident and civilian eye-witnesses, which renders it biased and not impartial. Finally, the inquiry bears no time limit”.

The Yesh Din brief noted that “the public must be able to follow the results of the investigation, such that it may be subject to public criticism, and such that the victims, their relatives, and their lawyers may examine the quality and reasonableness of its results”.

The Yesh Din statement added that from the start of the second Intifada (28 September 2000) until January 2011, “investigations” were opened in only 37 percent of Palestinian complaints against the Israeli military, and there were indictments in only 6 percent of the cases treated by the Military Police (MPCID) — that is, in only 108 out of 1806 cases.

According to the brief, “The IDF does not gather statistics regarding the cause for the closing of cases, and thus no figures are available regarding the percentage of cases closed based on a conclusion that there the incident was conducted properly (closure
based on lack of culpability), versus the percent of cases closed based on a failure of the investigators to locate suspects or evidence (closure based on a lack of evidence, or suspect unknown)”.

And, it said, “Since the start of the Second Intifada and until now soldiers were convicted of crimes related to the deaths of only four civilians: three Palestinians and one British citizen. In a few additional cases soldiers were convicted of non-death related crimes, while the court-martial emphasized that the prosecution had not successfully proven the link between the acts of the defendants and the
death of the victim”.

The Yesh Din brief noted that the Turkel Commission hearings offered “a great opportunity. The Commission has been authorized to examine an important issue – whether Israel’s response to complaints of war crimes by combatants, commanders and state officials
meets standards of international law. To the best of our knowledge, a comprehensive examination of the issue has yet to be conducted by any official Israeli authority, and thus in our view the Commission presents an opportunity to bring about imperative

By coincidence, the Mondoweiss blog has today another installment of Dr. Hatem Kanaaneh’s account of the proceedings in the trial of the lawsuit brought by Rachel Corrie’s parents against the IDF for her death, crushed by an IDF D-9 bulldozer in Gaza on 61 March, 2003…

Dr. Kanaaneh reported that “As I rejoined the courtroom proceedings, the soldier was speaking from behind his curtain and seemed quite convinced of his own gravitas, or so the casual observer may surmise from the quality of his voice. To me he sounded like he could benefit from an adenoidectomy. He indicated that on that specific day he sat in his command post some five kilometers from the site of the ‘incident.’ He kept track of what happened all along the fifty-kilometer length of the Philadelphi Axis through the watchful eyes and ears of a series of women soldiers, each in charge of tracking electronically what happened along a certain length of the axis. He admitted to having observed from the safety of his lair the forced evacuation of the same pesky foreign crowd of ten to fifteen activists from the roof of what his soldiers came to refer to as ‘the yellow house’ before they proceeded to ‘level the ground’ on which it stood … Yet the deputy commander had not seen the ‘incident’ of Rachel’s death. When he was informed of it, he reported, he quickly conducted four different investigations among the troops and came to the conclusion that a concrete slab had fallen on the woman and killed her. What irked me most was the diminutive term, betonada, sounding like a romantic term of endearment, that the witness used for the imagined concrete block. I say ‘imagined’ for I understand that no one ever saw such a block being scooped by the D-9 or falling from its blade at that moment. Rather it was the only conclusion that made sense to the investigators. The said commander asked, imagined and came to his conclusion. He and all the other investigators that were to come later never visited the site of the presumed accident. The official military police investigators, as I understand it, didn’t even speak directly to the D-9 drivers … The next soldier witness apparently was not college material. No use wasting time and precious resources on one whose retentive ability is that limited. In the eight years since he witnessed the event he had forgotten all its details. About the only relevant memory that Abu-Husain could extract from the poor man was that he judged the foreign activists to be American by the lightness of their skin color. He couldn’t even remember if they were men or women, where they stood or anything else about them other than their skin color. I identified him in my mind as Mr. Forgot, another sad case of early onset of Alzheimer Syndrome. There is more to come in another couple of months. Still, as we left the court, my friend, Mohammad Zidan, Director General of the Arab Human Rights Association in Nazareth, who has followed the proceedings, declared to me: ‘This all is not in vain. At least now when I read in the papers that the IDF has conducted an investigation I know what that means’.” This was posted on the Mondoweiss blog here, and on Dr. Kanaaneh’s own blog, here.

UPDATE: The IDF’s Operation Cast Lead in Gaza (27 December 2008 to 18 January 2009) — which preceeded the “maritime incident” involving the Freedom Flotilla and the Mavi Marmara — was a major turning point in international perception of Israeli military policies. There has been a confusing turn-around recently by South Africa’s Judge Richard Goldstone, who headed the UN investigation into the possible commission of war crimes and crimes against humanity in Operation Cast Lead — both by the Israeli military’s policy of reducing to the absolute minimum its own casualties, regardless of the consequences, and by Hamas which is viewed as responsible in Gaza for the indiscriminate firing of mortars, rockets and missiles onto Israeli communities in Gaza’s periphery. Goldstone wrote, in an opinion piece published in the Washington Post, that “If I had known then what I know now, the Goldstone Report would have been a different document”. He was referring to the latest UN report about the implementation of both Israel and Hamas of his, and the UN’s, recommendation that both parties must carry out a real investigation.

However, as Akiva Eldar wrote in an article published in Haaretz on 12 April, “The president of Israel has asked the United Nations to shelve it, the prime minister has thrown it in the trash bin of history and the Im Tirtzu movement has turned it into an indictment against the New Israel Fund. All of them are celebrating Judge Richard Goldstone’s ‘repentant’ op-ed in The Washington Post … [But] The findings of the committee headed by New York Judge Mary McGowan Davis, which tracked the implementation of the recommendations in the Goldstone report, were published last month. According to Goldstone, the McGowan Davis report findings indicate that Israel did not have an explicit policy of causing intentional harm to civilians. This is the ‘retraction’ everyone is rejoicing over. However, reading the final UN report reveals that the committee didn’t come anywhere near that conclusion. On the contrary. The committee states repeatedly that according to the information presented to it, ‘Israel does not appear to have conducted a general review of doctrine regarding military targets’ … Both UN reports [Goldstone’s, and McGowan Davis’ review] state that despite 36 Israel Defense Forces investigations of the grave incidents mentioned in the Goldstone report, only one indictment has been filed. Moreover, both reports reach the conclusion that ‘given the seriousness of the allegations, the military investigations thus far appear to have produced very little’ … The committee of experts also notes it has no information indicating Israel has undertaken any investigations in the wake of the Goldstone conclusions concerning serious incidents in the West Bank (which is also discussed in the initial report ). Therefore, Israel has not fulfilled its obligation under the UN Convention Against Torture to investigate those complaints … In the report from this March, which Goldstone has chosen to rely on for some reason, the committee declares the investigations of the policy makers must be carried out by an independent investigation commission and not by Military Advocate General Avichai Mendelblit. The report states that according to Mendelblit’s testimony, his dual role as both chief prosecutor and legal advisor to the army makes it impossible for him to investigate those who shaped, planned, commanded and supervised Operation Cast Lead”.
This Akiva Eldar article in Haaretz can be read in full here.

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