Analysis: Investigating the investigators

Turkel two passes judgment on whether Israel’s legal system, especially in checking itself, is kosher both in specific cases and in general.

By YONAH JEREMY BOB
Turkel Committee 311 (photo credit: GPO)
Turkel Committee 311
(photo credit: GPO)
Asking why there is a Part 2 to the Turkel Commission report is a fair question.
Observers may be asking themselves: Wasn’t Turkel that report that said Israel’s action regarding the May 2010 Mavi Marmara flotilla did not violate international law? If so, what else is there to say? And what does it mean and why is it necessary to “investigate the investigators?” Yet, in light of the recent Palestinian statehood declaration and the repeated Palestinian threats to bring Israeli officials before the International Criminal Court, the decision to add on to the Turkel Commission’s mandate a review of Israel’s investigation of itself during Operation Cast Lead may eventually be viewed as forward-looking.
Not that the government made that decision enthusiastically, and critics will say that “investigating the investigation” by an “outside,” or independent, Israeli commission is still a cop-out from having an international investigation of Cast Lead itself.
But back to explaining the connection between “Turkel 1” and “Turkel 2.”
“Turkel 1,” published in January 2011, was a government response hoping to have an outside, but Israeli, body that would clear the country’s name from UN and many human rights groups’ criticism and from the concern of allies like the US.
It was ultimately recognized by a large number of nations, as well as by some UN officials and reports, as independent, objective and thorough, but politically, the initial government decision to create it was a response to the criticism and concerns.
The government’s belated decision to empower the Turkel Commission to author “Turkel 2” weeks after the commission was initially created was a response to try to damper criticism over Operation Cast Lead and Israel’s investigations of itself.
Cast Lead took place in December 2008 to January 2009, the flotilla was in May 2010 and the Turkel Commission was appointed in June 2010, by which time the torrent of criticism and concern regarding Cast Lead had not remotely subsided; even though the IDF had said it was investigating allegations and presented multiple rounds of findings in July 2009, January 2010 and July 2010.
So in July 2010, the government empowered the commission to investigate the investigators.
Following the pattern of the first report and based on the exchanges during the various public hearings, the report is expected to call balls and strikes, endorsing certain aspects of self-investigations by the IDF and other Israeli bodies, while recommending some changes or improvements.
But what might be most important about the report, as far as the government is concerned, might not be written in the report at all.
Nothing in the commission’s mandate specifically states that it should provide Israel any sort of shield to claims being filed against it in the ICC.
However, the commission did get a legal opinion from a former ICC official on the issue of complementarity, or the legal principle of what standards a state must live up to in its own legal proceedings to avoid ICC intervention.
The ICC cannot get jurisdiction of a case unless, among other things, it is established that the country in which the accused persons are citizens has failed to investigate them according to international standards.
If round two of the report wins the same international support as round one, it will be much harder to claim before the ICC that it should take jurisdiction of a case against Israeli officials for war crimes for the simple reason that the report, however indirectly, will lend Israel’s legal system greater international legitimacy.
Conversely, if the report is not received as well, it may embolden those seeking to file claims against Israel in the ICC as “exhibit A” of why an “outside” court must handle Israeli war crimes cases.
In that sense, even as the legal issues it deals with may be harder for the general public to follow than reviewing the flotilla incident, Turkel two may matter much more than Turkel one in the long-term.
Turkel one impacted how Israel was viewed over a very controversial and highly reported incident, but it was one incident.
Turkel two passes judgment on whether Israel’s legal system, especially in checking itself, is kosher both in specific cases and in general.
In that sense, and post Palestinian- statehood, the stakes could not be higher.