Is gov't following Turkel's ideas on probing war crimes?

Analysis: Is the gov't implementing Turkel Report II's recommendations for improving Israel's investigations of alleged war crimes?

By
August 14, 2013 17:55
The Turkel commission at work.

Turkel commission 370. (photo credit: Courtesy - GPO)

 
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The Turkel Report II (the second report arising from a commission of inquiry led by former Supreme Court justice Jacob Turkel into the 2010 Mavi Marmara flotilla incident) has been treated as close to definitive as a legal document as well as in its exercise of political diplomacy by pro-Israel and anti-Israel groups alike.

The legal mastery lies in the depth in which the document treats an international law issue that until now was never treated in detail: What standards must a country’s system for self-investigating its alleged war crimes meet?

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The report’s comparative study of how a number of Western countries have answered this question, from the US to Britain to Australia, is also without precedent.

But what many called its larger brilliance was its political diplomacy, finding a middle ground for both affirming the current arrangements as overall meeting international law standards, while making a hard push for 18 significant changes to the system.

But approximately six months later, the B’Tselem human rights organization last week issued a report saying that Israel is ignoring much of the Turkel document, which it in any case calls too lenient in its treatment of Israel (while applauding its recommendations for change).

Questioned about which of the 18 recommendations have been pursued, the Justice Ministry cited moving investigations of the Shin Bet (Israel Security Agency) from the Shin Bet into the ministry and appointing a new department head.

It also noted intergovernmental committee work on advancing domestic legislation which would officially criminalize war crimes in Israel, going beyond merely defining them as murder.



Besides those changes, outsiders have given the IDF some credit for putting out its first report on war crimes allegations related to last November’s Pillar of Defense in Gaza only around half-a-year after the aerial operation – far faster than the IDF did after the December 2008-January 2009 Operation Cast Lead.

But other than these changes, the Justice Ministry implied that it was still in the process of forming a commission to study the report’s findings and that only after it announced the commission’s formation would serious consideration of the other 15 recommendations begin.

Hebrew University Law School Dean Yuval Shany, who testified before the Turkel Commission, discussed some of the other significant recommendations which the state may decide to avoid implementing.

Discussing Turkel II’s proposal that the Shin Bet videotape all of its interrogations, Shany said, “Turkel doesn’t obligate the government. The government must decide whether to accept the recommendations.”

However, despite the fact that the High Court of Justice, almost exactly when the report was released in February, declined to compel the state to comply with Turkel II’s recommendation, Shany added that videotaping is “essential to show visually what happened both to defend the human rights of those being interrogated and to defend the Shin Bet from what it says are many false complaints filed against it.”

In light of the state’s apparent opposition to videotaping articulated during the High Court hearings, Shany did express some doubt about whether the state would comply with the recommendations, but also said “the same logic for videotaping police [interrogators, already being done] will eventually apply to the Shin Bet, but there will need to be special safeguards against leaks.”

Regarding investigating any potential liability for political leaders for alleged war crimes associated with their direction of war policy, Turkel II suggested making it a regular policy that, whenever necessary, an ad hoc commission would be formed, while Shany recommended having a permanent commission for this purpose.

Shany admitted that investigation of civilian authorities is not regularly done in Western countries and he added that “there is no real claim that a regular problem exists with the civilian” leadership in Israel.

However, he said it was problematic that there currently is “no mechanism” whatsoever to investigate, which means that Israel has “no track record to show we check these issues independently.”

He added that his recommendation for a permanent commission was simply applying what the state has already done to investigate targeted killings of terrorists and that “Israel has an interest to insulate itself” from criticism on the issue, but that it appears that it “decided not to, which is not good in the long run.”

B’Tselem said that the danger in not having a permanent commission is that “the actual formation of the commission depends on the goodwill of the government and on its readiness to investigate suspicions of war crimes by the political echelons that, in many instances, will include members of the government itself.”

This could lead to situations where “full blame” is placed on a “soldier in the field,” while those giving the orders “get off scot free.”

B’Tselem has also challenged the idea that the IDF has improved its response time in investigating complaints.

Despite the faster response to Pillar of Defense, B’Tselem noted that a report it received from the Military Advocate-General’s Office admitted that as of May 2013, no decision has been made on whether to file an indictment or close the complaint in around 130 complaints filed before December 2012.

In 44 of those complaints, there has not even been a decision on whether to investigate, said B’Tselem.

While B’Tselem complimented the IDF on launching investigations in 15 of 16 cases in which soldiers have killed Palestinians since April 2011 (and did not criticize the one case without an investigation), by June 2013, the military advocate-general had decided to close two cases and file one indictment, but had not decided whether to take action in any of the other cases.

Possibly because of the Turkel II recommendations’ delicate political diplomacy in not putting the state too much on the defensive, after six months, the state has made some progress on them.

But the delicate stance instead of an aggressive one may also have a price, as without a declaration of clear violations or a clear implementation timeline, the state’s overall record is mixed, and since the commission for investigating the recommendations still has not been formed, it is likely that any further changes could take at least a couple more years.

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