Is the Turkel Commission the end of Goldstone?

The team charged with investigating the Gaza flotilla is a major development, overlooked at home and abroad.

By DAVID BENJAMIN
July 26, 2010 22:21
3 minute read.
retired high court judge, Jacob Turkel, will head

Turkel 311. (photo credit: Ariel Jerozolimski)

The latest government update to the UN secretary-general regarding the Israeli investigations and follow-up with respect to Operation Cast Lead draws attention to a major development that seems to have been overlooked both at home and abroad.

The update refers to the mandate of the Turkel Commission set up to investigate the Gaza flotilla incident and highlights the fact that it includes examining “the question of whether the mechanism for examining and investigating complaints and claims raised in relation to violations of the laws of armed conflict, as conducted in Israel generally, and as implemented with regard to the present incident, conform with the obligations of the State of Israel under the rules of international law.”

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This is big news. Until the establishment of the Turkel Commission, the government had refused to conduct any type of external investigation with regard to Operation Cast Lead. This was in defiance of the Goldstone Report’s assertion that the current model for such investigations fails to meet international standards.

Confident that Israel had nothing to fear from an independent investigation, various models for an external investigation were reportedly discussed by the cabinet, but were ultimately rejected. The consistent official position has been that the country’s institutions and mechanisms for investigating the conduct of its armed forces and governmental authorities are adequate and conform to internationally acceptable standards.

This writer has argued in the past that the existing apparatus and procedures for ensuring accountability of its public and military officials actually exceed international standards and that the powers of judicial review over the military are, in fact, unparalleled.

While the government no doubt continues to hold this view, it has hitched a ride on the Turkel Commission and taken the unprecedented step of inviting an independent body, external to the government and military, with international observers, to evaluate the current system of investigations. In its update to the secretary- general, the government stresses that “the mechanisms under review [by the Turkel Commission] are the same mechanisms that are implemented in the investigations relating to the Gaza operation...”

WITH RESPECT to the Goldstone Report, the implications of this development are highly significant: The report recommends that Israel be required to conduct “appropriate investigations that are independent and in conformity with international standards” into alleged crimes committed during Operation Cast Lead.

According to the report, only in the event that it fails to investigate and prosecute accordingly, should the UN Security Council refer the matter to the International Criminal Court. Also, Goldstone himself has repeated in various lectures and interviews, that all Israel need do is conduct proper investigations and proceedings that meet international standards and that would be “the end of the matter.”

The government is now effectively saying to Goldstone: We are doing what you ask. We are conducting such investigations.

To ensure that they meet international standards, we have asked not merely an independent Israeli body, but a body including highly respected international observers, namely Nobel Peace Prize laureate David Trimble and former Canadian judge advocate-general Kenneth Watkin to assess their compliance.

Meanwhile, the UN Human Rights Council has appointed a special committee to “monitor and assess... the independence, effectiveness, genuineness of these investigations and their conformity with international standards.”

It is unclear whether Israel intends to cooperate with this committee, but it now has the option of asserting that another, no less qualified (in fact, significantly better qualified) independent body is already probing these very issues, thereby rendering the UNHRC committee superfluous.

The question remains: If the Turkel Commission were to find that the Israeli system of investigations, which resembles substantially the systems applied in the US, UK, Canada and Australia, is in conformity with international standards, would that really be the end of the matter? The writer is a consultant and lecturer on International Law, Law of Armed Conflict and Counter-Terrorism and a former chief IDF legal advisor for the Gaza Strip and Director of International & Strategic Branch, IDF International Law Department.


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