Israel Reflects

The Turkel Commission Report is a unique and important legal report, 470 pages along with 500 pages of appendices, submitted in February 2013 to Israeli Prime Minister Benjamin Netanyahu. It is not bedside reading but is a comprehensive and rigorous examination of the procedures by which the state of Israel examines and investigates complaints and claims of violations by Israel of international humanitarian law. The commission examined the behavior of Israeli military and political authorities in the light of standards set by international law and the laws of armed conflict. The nature of that behavior which has legal, moral, and educational aspects is important for two reasons: Israel's self-perception; and the perception of Israel by the international community.

At the outset it is manifest that the establishment of the commission, referred to by the name of the chair, the former Supreme Court Justice Jacob Turkel, is an extraordinary tribute to the state of Israel for its willingness to engage in objective self-examination of its military actions. The two reports it has submitted consider and essentially sustain the claim that Israel does attempt to abide by the principles of international law, even though it is confronted by terrorist organizations which reject these principles.

The two objective non-Israeli observers on the commission attest to Israel's willingness to examine its own actions and their accordance with international law. Professor Timothy McCormack, special adviser to the International Criminal Court in The Hague, commented that the state of Israel should be very proud of its contribution to the study of this very important area of law. The other, Lord David Trimble of Ireland, a Nobel Peace Prize winner, concluded that "taken as a whole, Israeli law and practice will stand comparison with the best in the world."

The commission, consisting of retired Supreme Court Justice Jacob Turkel and three other Israeli respected figures and two foreign observers was set up in June 2010 to examine the maritime incident of May 31, 2010 when Israeli forces raided a flotilla of six ships in international waters, the most important of which was the Mavi Mamara, which was challenging the Israeli blockade of the Gaza Strip, imposed after Hamas took control of the area. Nine people were killed during the incident when IDF forces attempted to board the Mavi Mamara.

The commission's initial charge was to investigate the legality of the Israeli blockade and of Israeli actions during the raid. A first report, of 245 pages, was submitted by the commission on January 23, 2011. It came to two main conclusions. The first was that, considering the problem of security in light of continuing attacks against Israel, the Israeli blockade was lawful and complied with international humanitarian law. The second was that the Israeli actions on May 31, 2010 regarding the flotilla were lawful and complied with international law pertaining to armed conflict.

The commission cleared the Israeli government and military of accusations of wrongdoing. It held that it was the passengers of the ships, particularly the Mavi Marmara, who were responsible for the violence. It held that the naval blockade of Gaza was lawfully imposed, primarily for military and security reasons to prevent smuggling of weapons and terrorists, and that Israel had complied with its humanitarian obligations in the incident.

Specifically, the commission held that the interception and capture of the flotilla ships was consistent with established international naval practice. It concluded that the participants on the ships were people whose main purpose was to publicize the humanitarian situation in Gaza. However, the ships did not carry humanitarian cargo as claimed but were armed with a wide array of weapons which could cause death or serious injury and which were in fact used against the IDF soldiers. Faced by unanticipated violence, the Israeli response was professional and in conformity with international law.

Though many found the report of the commission to be thorough and objective, it did not satisfy the critics of Israel, some of whom persisted in asserting that Israel was responsible for clear violations of international law. Not unexpectedly, the UN Human Rights Council -- continuing its relentless vendetta against Israel -- was prominent in accusing Israel of violations of human rights and international humanitarian law. In response to this criticism, the mandate of the Turkel Commission was extended to allow it to examine the Israeli investigations both of the flotilla incident and those concerning Operation Cast Lead, the attempt from December 2008 to January 2009 to end missile attacks from the Gaza Strip against Israeli civilians.

Few countries in the world engage in critical self-examination. Could Israel effectively and fairly investigate itself for alleged violations of international law? The Turkel Commission, with some changes in personnel, was now charged to consider Israel's mechanisms for examining and investigating complaints about alleged violations of the laws of armed conflict. It not only scrutinized the Israeli military but also police and security organizations, government and judicial officials, and human rights organizations. It focused mainly on the rules of international law, concentrating on assessments of military and investigation procedures, primarily those of the IDF.

It also compared the mechanisms used to review violations of international humanitarian law in Israel with those of six other democratic countries. The overall purpose of the second Turkel report was to identify methods by which existing procedures in Israel could be improved.

Overall, the commission's conclusions were favorable to Israel. It found that mechanisms for investigations generally comply with Israel's obligations under the rules of international law. The commission established that Israeli investigation of senior political figures by investigating committees and inquiries was in accordance with expected international standards. All the same, it did recommend some changes in accepted practice, altogether 18 recommendations, to various branches of the Israeli government and military. These recommendations did not indicate essential flaws but rather were a blueprint for optimal improvement.

Among other issues, the commission suggested that units specializing in the laws of armed conflict should be established, and that a fact-finding assessment team should investigate the legal aspects of individual military operations.

Two other recommendations are particularly important. One called for explicitly integrating rules concerning war crimes into Israeli law. The other emphasized the need for a law that would make IDF commanders and their civilian superiors responsible for violations by those under their command. The commission also recommended that a special unit of the military police investigations department be set up to investigate reports of harm done to Palestinian civilians.

No political or legal system in the world has reached perfection. Critics of Israel will undoubtedly focus on its imperfections and on the shortcomings pointed out by the Turkel Commission Report. In contrast, any objective analyst, like the two non-Israeli observers on the commission, is likely to stress that the objective of the commission, which was to see that Israel conforms to international law which is often vague and unclear, has been admirably fulfilled and that Israel can justifiably take pride in this.

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