Turkel committee: In future probes, political echelon could be held criminally responsible for alleged IDF war crimes

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. 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 IDFs 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 Israels 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 Israels procedures to military investigation procedures in the United States, Canada, Australia, Great Britain, Germany and the Netherlands. The committee determined that Israels 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 IDFs 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 advocategeneral 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 advocategeneral that is independent of the IDFs operational investigations. Furthermore, the team will collect information from complainants and witnesses who arent 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 IDFs 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-generals independence within the army, the panel suggests that the military advocate-generals 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 committees 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 committees secretary, attorney Hoshea Gottlieb.

Panel suggests using legislation to establish new norms of accountability; defense and intelligence officials are expressing their reservations.

Pro-Palestinian activists welcoming the Mavi Marmara to Istanbul yesterday with Turkish and Palestinian flags. Photo by Reuters The Israel Defense Forces should no longer be the only body to investigate its own conduct when it is charged with ostensible war crimes or various human rights violations, especially against Palestinians. That is expected to be the main conclusion of the Turkel Committee, which is likely to recommend significantly augmenting civilian review of IDF probes. The committee was formed to investigate Israel's actions in intercepting the flotilla to Gaza in May 2010. The report, the second part of the Turkel Committee's recommendations, is to be submitted to the prime minister and made public in the coming weeks. Its main recommendation is that the attorney general should more closely supervise the Military Advocate General and the Shin Bet security service regarding investigations of complaints.

The report is expected to be precedent-setting and garner major interest both in Israel and abroad. On May 31, 2010, Israeli naval commandos took over a Turkish flotilla making its way to the Gaza Strip. Nine Turkish civilians were killed by commando fire during the takeover of the Mavi Marmara. The nine were members of the IHH, the Humanitarian Relief Foundation, a Turkish Islamic NGO. Part 1 of the Turkel Committee's report, submitted on January 23, 2011, determined that Israel's takeover of the flotilla had been legal in terms of international law, but criticized the IDF's preparation in advance of the arrival of flotilla as well as the operation itself. Over the past 18 months, the committee has labored over Part 2 of its report. The dry title: "Examination of the Israeli mechanisms for examining and investigating allegations of violations of the laws of armed conflict - 'the investigation policy,'" hides scathing criticism of the conduct of the IDF, the Shin Bet, the police and the Israel Prison Service, and recommends overhauling the way in which investigations of these bodies are conducted. The committee heard testimony by Attorney General Yehuda Weinstein, the previous military advocate general Maj. Gen. Avichai Mandelblit, former Shin Bet chief Yuval Diskin, the Shin Bet's legal adviser, as well as academic legal experts such as Prof. Eyal Benvenisti, Michael Sfard of the human rights group Yesh Din and other human rights groups. The Turkel Committee is expected to recommend significantly augmenting civilian review of IDF probes with regard to Palestinian complaints. The committee discussed the establishment of a department of international law in the Justice Ministry that would answer to the attorney general and supervise both the Military Advocate General and the Military Police. The Turkel Committee is to recommend that the attorney general be granted the power to change decisions by the Military Advocate General with regard to complaints by Palestinians. One chapter of the report, compiled with the assistance of international legal experts, will summarize the way international law deals with investigations of war crimes in

order to determine in principle when criminal investigations should be launched in such cases. The report will also review how investigations are currently handled of ostensible war crimes by the IDF, the Shin Bet, the police and the Prison Service. To do so, the committee sought information on more than 60 cases in which Palestinian noncombatants were injured or killed, as well as complaints filed after the 2010 flotilla. "The security establishment is taking the report very seriously. Even while the work was underway, we saw changes in methods and procedures in the Military Advocate General and the Shin Bet," the committee's coordinator, attorney Hoshea Gottlieb, said. Another chapter scrutinizes the IDF's investigation of the 2010 flotilla. That probe, which was headed by Maj. Gen. Giora Eiland, found fault with the conduct of the navy, intelligence and the General Staff before and during the flotilla's arrival. The Turkel probe is expected to criticize Eiland's report and IDF investigations in general. Despite the harsh criticisms and recommendations of the report, which will be read with great interest by legal and human rights experts in Israel and abroad, the government and the security establishment are expected to accept it. Not to do so would mean serious damage to the credibility of enforcement agencies and to Israel in general.