IDI's Terror and Democracy Project Submits a Response to Turkel Commission [10/2/2011]

On February 10, 2011, the IDI Terror and Democracy Project submitted to the Public Commission Examining the Maritime Incident of 31 May, 2010 (the Turkel Commission) a response to the position paper presented to the Commission by the IDF Military Advocate General (MAG). This paper evaluated the investigation of allegations that Israel committed violations of international humanitarian law (IHL) during the course of this event, also known as the 'flotilla incident'. [1] Both the MAG’s position paper and the IDI response deal with the important question of institutional safeguards for ensuring respect for international law during situations of conflict, particularly in the course of counter-terrorism operations.

On June 14, 2010, the Government adopted a decision to establish the Turkel Commission. Paragraph 5 of that decision gave the Commission the authority to “address the question whether the mechanism for examining and investigating complaints and claims of violations of the laws of war, as carried out by Israel in general, and as implemented with regard to the events of May 31, 2010, in particular, complies with the obligations of the State of Israel pursuant to the rules of international law.”

After completing the first part of its agenda – the inquiry into the Gaza blockade and the IDF operation against the flotilla,  [2] the Turkel Commission began its work evaluating the manner in which Israel conducts investigations.

In December 2010, the MAG presented the Turkel Commission with a position paper regarding the rules of investigation as they are applied by the State of Israel, and their relationship to international law.  [3] According to that position paper, the IDF investigations, which are comprised of command inquiries and criminal investigations,  [4] are in accordance with the relevant IHL provisions. Moreover, to support its claim, the MAG's position paper surveyed similar military investigative mechanisms existing in Australia, Canada, the United Kingdom and United States of America.

On February 10, 2011, the IDI Terror and Democracy project submitted a response document to the Turkel Commission. (For an English translation of the full response document click here.) 

• The present standard for opening a criminal military investigation of IHL violations is too high and is unsuitable for a “mixed” situation that includes elements of armed conflict and territorial control. Counter-terrorism operations should be governed by human rights law, as well as by the laws of war, and the launching of investigations should be sensitive to human rights concerns.
  
  
• As opposed to the current situation, operational investigations should be used very sparingly for clarifying factual issues in which there are claims or suspicions of a criminal offense. In particular, use of unit-investigations causes delays and raises concerns about testimonial coordination. 
  
  
• Given the existing practice, in which the MAG functions in the dual capacity of adviser and prosecutor, decisions regarding the opening of criminal investigations pertaining to the legality of army orders and procedures that have been adopted or ratified by the MAG or by superior ranks, including the political echelon, should be removed from the MAG’s authority. 
  
  
• The external civilian supervision of the military investigative system should be reinforced. In order to achieve this, the authors recommend that a permanent, external, objective commission be established. Such a commission would deal with initial verification of certain complaints and suspicions of violations of international law, and supervise the administration of military investigations by the MAG.

1. IDI Terrorism and Democracy Project's Response Paper <English>
   IDI Terrorism and Democracy Project's Response Paper <Hebrew> 
   
   
2. The Turkel Commission Report – Part I, 23.1.2011. See a discussion of this report in Issue 25 of the IDI Terrorism and Democracy Newsletter.
   
   
3. See  http://www.mag.idf.il/sip_storage//FILES/9/949.pdf
   
   
4. For a discussion of the different types of investigations see Issue 14 of the IDI Terrorism and Democracy Newsletter.