Panel: IDF largely fit to probe war crimes claims

Turkel Commission set up to investigate May 2010 Gaza flotilla says IDF has room for improvement in investigations.

By YONAH JEREMY BOB
Netanyahu and Turkel 370 (photo credit: GPO / Moshe Milner)
Netanyahu and Turkel 370
(photo credit: GPO / Moshe Milner)
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.