The Turkel Commission on Wednesday published its second report concluding that
overall the IDF’s investigations of alleged war crimes violations meet
international law standards, but that there was significant room for
improvement.
The almost 400-page report, which included the work of
several foreign observers and a comparison to six other nations’ systems for
investigating war crime accusations, includes 19 recommendations for “improving
the system of reviewing and investigating, and that in certain areas there is
room to change current policies.”
While there was criticism and
significant suggestions for improvement for the IDF on specific issues, the Shin
Bet (Israel Security Agency) and the police received heavier and more
fundamental criticism.
The commission’s official name is the Public
Commission to Examine the Maritime Incident of May 31, 2010, and it was
appointed as an “outside” but Israeli body (including international observers)
on June 14, 2010.
The first part of the commission’s report, published on
January 23, 2011, found that Israel’s actions in enforcing the Gaza blockade
associated with the Mavi Marmara flotilla incident had been in accordance with
international law.
It is usually referred to simply as the Turkel Report,
named for the commission’s chairman, former Supreme Court justice Jacob
Turkel.
Maybe the two most radical of the recommendations in Turkel II
involved the Shin Bet and the police.
The report said that the Shin Bet’s
internal investigations unit was not functioning as it should, and that all
investigations of the agency should be taken over by the state attorney’s
internal investigations unit.
The report also said that the Shin Bet
should videotape every interrogation.
Although one might expect heavy
opposition from the security establishment on the videotaping issue, former Shin
Bet director Yuval Diskin told the commission that “even if not everyone always
likes it, I think it is proper.”
In a nod to the IDF and a slap in the
face to the police, the report also recommends that investigations of Border
Police (mostly dealing with complaints by West Bank Palestinians) should be
moved from the police and the state attorney to the IDF.
But while the
report affirms that the IDF’s system of selfinvestigation meets international
law standards, it also does recommend some substantial changes and improvements
for the IDF.
Addressing an issue for which the army received significant
outside criticism, the report said that the IDF’s “operational investigations
are not designed for the needs of a decision on whether to open a [criminal]
investigation.”
Rather, the report said that a new “mechanism should be
established for evaluating the factual situation” which will serve as the basis
for the military advocate-general’s decision on “if an investigation should be
opened.”
The report also recommended that the decision as to whether to
open an investigation into alleged war crimes violations should never take more
than a few weeks and that the exact maximum amount of time for deciding whether
to investigate, and for deciding whether to seek criminal or disciplinary
sanctions or to close a case should be set by law.
Many critics said that
deciding whether to investigate – and investigations themselves – dragged out
for far too long, making it harder to collect evidence and reliable
testimony.
The IDF has said that investigating alleged crimes in a combat
zone such as the Gaza Strip where IDF investigators cannot operate freely takes
time. While the commission did not set exact dates for the decision time
periods, the recommendation suggested that the IDF could and should move
faster.
The report also recommended legislation be passed to hold
civilian leaders accountable in the future for not preventing war crimes
violations or for not prosecuting those involved in war crimes
violations.
Although the report said the military advocate-general was
making legal judgments independently from the IDF chain of command and answering
only to the attorney-general as required under international law, it also said
that “legislative changes are necessary” to “ensure” and solidify this
principle.
In a notable suggested change, the report said that the
military advocate-general’s appointment should be more like the appointment of
the attorney-general.
Rather than merely being appointed by the defense
minister, the report said that the defense minister’s choice should be based on
recommendations from a public committee of top legal professionals and
officials.
The report also recommended that the military advocategeneral
be appointed to a set six-year term and be given a set rank so that there would
be no perception that he was acting to ingratiate himself with the defense
minister or the IDF chief of staff in order to get his term extended or a higher
rank.
Recent military advocate-generals have served various term lengths,
ranging from three years to more than five years, and while the last few were
eventually made major-generals, most were not guaranteed the rank in advance and
were only given the rank after already having served as military advocate general
for some time.
Next, the report suggested that the IDF needed a special
operational military investigations police unit with special training for
investigating war crime allegations, including fluency in Arabic for questioning
Palestinian witnesses.
The military advocate-general currently has a
special legal unit with specific training exactly for that purpose, and the
report said that the unit could only do its work in an optimal manner if it
could work with a parallel specialized Military Police unit, and not with the
regular Military Police as matters currently stand.
In another
recommendation, the report noted that Israel and the IDF, unlike many Western
nations, did not have a statute under which someone could be charged for “war
crime” violations.
Those accused of these violations can be prosecuted
for murder and other relevant crimes, but the commission said that Israel and
the IDF should specifically define war crimes.
In the only area where the
report suggested increasing the state attorney’s authority at the expense of the
IDF, it said that the state attorney needed to have its own in-house advisory
unit of international law experts for addressing war crimes issues instead of
relying directly on the IDF’s international law division.
Currently, the
Justice Ministry has three international law departments, but none of them deals
directly with this issue, and the report said that, as a result, the state
attorney had relied too heavily on the IDF international law division’s
expertise.
The report said the IDF should automatically investigate not
only Palestinian fatalities in the West Bank, but also cases of serious
injuries, and that the IDF had not lived up to a 2005 commitment to the Supreme
Court to streamline and standardize the system for reporting such incidents to
the Military Advocate-General’s Office expeditiously.