In a new position paper, B’Tselem outlines the potential of the Turkel Commission recommendations and their limitations
In early February 2013, the Turkel Commission – appointed following the Israeli military takeover of a flotilla to Gaza in May 2010 – submitted its second report (PDF), which dealt with Israel’s policy for investigating suspected violations of the laws of war (international humanitarian law, or IHL). Now, more than six months later, the time has come to examine the implementation of the commission’s recommendations. This week, B’Tselem Executive Director Jessica Montell sent a letter to the heads of Israel’s civilian and military judicial systems in which she noted that, since the report was published, broad agreement has been voiced over the importance the commission’s recommendations to the effective investigation of suspected violations of IHL. In her letter, Montell added that “polite phrasing notwithstanding, the Turkel Commission expressly said that the system is not working, as regards the investigation of suspected violations of IHL. What is called for is not mere cosmetic corrections, but fundamental change – and the opportunity to do so now must be seized. It is in Israel’s best interest to show that justice can be served at home. As a specialist organization with longstanding experience in working with the authorities responsible for investigations and enforcement, B’Tselem will gladly contribute to promoting the implementation of the commissions’ recommendations.”
In addition to its written appeal, today (9 August 2013) B’Tselem published a position paper (PDF) analysing the commission’s conclusions and its recommendations for action.
In the report, the commission emphasized its view that Israel fulfils the legal duty, binding all states, to investigate suspected violations of IHL, although it also held that “in several of the areas examined there are grounds for amending the examination and investigation mechanisms and that in several areas there are grounds for changing the accepted policy.” Despite the cautious wording of this statement, the commission made far-reaching recommendations that, if implemented, could effect a dramatic qualitative change in investigations as well as in the entire law enforcement system in Israel.
Given the flaws in Israel's current system of accountability for harm done to Palestinians, such change is vital. It is B’Tselem’s experience, based on its work with the military, that the system for investigating Palestinians’ complaints regarding violation of their rights is barely functional. On the face of it, the system seems to operate – complaints are filed, investigations are opened and decisions are made – but in reality, the process is inefficient and drags on for many years. The commission addressed these problems, proposing changes to the MAG Corps’ mode of operation, such as setting obligatory time limits for each stage of the process. If the commission’s suggestions are implemented, the existing system will be dramatically improved: the MAG will decide whether to open an investigation shortly after the incident; a speedy investigation will be carried out by more professional and experienced officials; and the decision about the further handling of the case will be made in a timely manner that will enable, if necessary, bringing charges against the offenders. Furthermore, reasons will be provided for all decisions made by law enforcement officials, and victims will be able to appeal them effectively and receive an answer within a reasonable amount of time. Such a system will improve the odds of enforcing the law and bringing of offenders to justice, which could deter future offenders.
B’Tselem also welcomes the commission’s recommendation to forego operational inquiries in cases where suspicion of a criminal offense is unclear. In addition, implementing its recommendations regarding the investigation of complaints against ISA interrogators – transferring the responsibility for investigating such complaints to the DIP and visually documenting interrogations – is highly likely to make the handling of these complaints more effective.
The recommendations’ limitations:
Although the commission’s recommendations are welcome, and despite the fact that their implementation may effect significant change, this is in itself will not suffice to bring the investigation of suspected breaches of IHL up to par. The main problem with the commission’s recommendations is that they are primarily aimed at improving the existing system, instead of proposing systemic changes to the military’s methods of investigating alleged violations of IHL. The commission thereby ignored the fact that the military, and the military alone, is the body investigating such suspicions, rendering the independence of the investigative proceedings questionable. Two major problems with the military investigative system remain unresolved. One is the question of dealing with soldiers who obeyed commands that had been authorized by the MAG or by the political echelons, but may, in themselves, violate IHL. The MAG’s responsibility for both legal counsel regarding such commands and for making the decision whether to open an investigation into such incidents places him in a conflict of interest, making it more difficult and unlikely for him to initiate an investigation. The second problem that the commission left unresolved concerns cases in which the political echelons are involved in setting military policy or giving commands to the military. The commission recommended that, in such cases, suspicions will not be examined in a criminal investigation, but rather by a specially formed commission of inquiry.
Under IHL, investigations do not have to be criminal. As the commission noted, the only obligation is for the investigation to be “effective” – “one that is capable of identifying those responsible and committing them to justice”. To that end, the investigation must meet five basic principles derived from human rights law: independence, impartiality, effectiveness and thoroughness, promptness, and transparency. However, the actual formation of the commission depends on the goodwill of the government and on its readiness to investigate suspicions of war crimes by the political echelons who, in many instances, will include members of the government itself.
Therefore, even if all of the commission’s recommendations are implemented, suspected violations of IHL will still be investigated only within the military, with all the power concentrated in hands of the MAG: he is the one responsible for ordering an investigation to be opened, for overseeing it, and for deciding how to further handle the case. It is not within his authority to initiate investigations of civil authorities, and there is an inherent conflict of interest when he must order an investigation of orders given based on counsel provided by the MAG Corps – at times, even by the MAG himself.
One systemic change that could solve these problems is the establishment of a permanent independent committee, as suggested by Prof. Yuval Shany and Dr. Amichai Cohen. The committee will examine issues currently not being addressed, including “claims and suspicions regarding actions based on decisions and directives given by senior policymakers in the military and in the political establishment”. The Turkel Commission chose not to recommend this solution, yet offered no other option for investigating civil authorities and the senior military officers – including the MAG himself – for involvement in policies suspected of violating IHL. Consequently, incidents in which military policy and the orders given are suspected of being illegal cannot be investigated. The fact that investigations have, therefore, been left solely in the hands of the MPIU may result in full blame being placed on the soldier in the field, while those responsible for giving the orders and setting policy get off scot free.