A Critical Discussion of the Second Turkel Report and How It Engages with the Duty to Investigate Under International Law
© T.M.C. Asser Press and the authors 2015Terry D. Gill, Robin Geiß, Robert Heinsch, Tim McCormack, Christophe Paulussen and Jessica Dorsey (eds.)Yearbook of International Humanitarian Law 2013Yearbook of International Humanitarian Law1610.1007/978-94-6265-038-1_6
6. A Critical Discussion of the Second Turkel Report and How It Engages with the Duty to Investigate Under International Law
Hebrew University of Jerusalem, Jerusalem, Israel
6.3.3 Fact-Finding Assessment
6.3.5 Concluding Comments on the Commission’s Legal Analysis of Duty to Investigate International Law Violations
The aim of this article is to reflect upon accountability under international law through the framework of a specific example. The Turkel Commission is a public commission of inquiry appointed by the Government of Israel. It issued its second and final report, which addresses Israel’s mechanisms for investigating violations of international law according to the laws of war, in February 2013. The Report primarily focuses on International Humanitarian Law (IHL) but also attends to International Human Rights Law (IHRL). The duty to investigate under international law is an evolving process because treaty law lacks detail, particularly regarding the manner of conducting an investigation. Under IHRL that duty has been enriched by the jurisprudence of regional human rights courts and soft law. Under IHL duty (which is even sparser in detail) it has been aided by state practice and the jurisprudence of international tribunals. The Turkel Report is the first major study on the duty to investigate and it informs much of the analysis of this article. The article provides a descriptive review of the Report and a critical discussion of the way this current national development offers a meaningful contribution to the development of the obligation imposed by international law to investigate alleged violations.
KeywordsTurkel commissionIsraelObligation to investigateAccountabilityWar crimesInternational lawInternational humanitarian lawInternational human rights law
Dr. Michelle Lesh is a Golda Meir Post-Doctoral Fellow at the Hebrew University of Jerusalem. She worked as a legal assistant to the Turkel Commission during its second phase. She also provided an experts’ paper on the Second Turkel Report to the UN Special Rapporteur on counterterrorism and human rights drones inquiry (A/68/389; A/HRC/25/29). The views expressed in this article are those of the author and do not reflect the views of any other institution or body. All errors remain those of the author.
The aim of this article is to reflect upon accountability under international law through the framework of a specific example. It will provide a descriptive review of the Second Report of Turkel Commission, a commission of inquiry appointed by the government of Israel to examine Israel’s mechanisms for investigating violations of international law. The article also provides a critical discussion of the way this current national development offers a meaningful contribution to the development of the obligation imposed by international law to investigate alleged violations. To help the reader to understand the nature of that obligation, the article will begin, in Sect. 6.2, by briefly explaining the mandate of the Turkel Commission and setting out the content and structure of the Second Report. Sections 6.3 and 6.4 will outline different aspects of the obligations under international law, based on the analysis of the Turkel Report, which predominantly focuses on International Humanitarian Law (IHL), but it also attends to International Human Rights Law (IHRL). This will be followed by Sect. 6.5, which will comment on the Commission’s approach to international law. Section 6.6 will set out some conclusions.
6.2 The Turkel Commission: The Second Report’s Structure and Content
In June 2010, the Turkel Commission—a public commission of inquiry—was appointed by the Government of Israel, following the maritime incident in which the Israel Defense Forces (IDF) intercepted the Mavi Marmara, a flotilla sailing from Turkey for Gaza. Supreme Court Justice (Ret.) Jacob Turkel chaired the Commission and its members were Professor Shabtai Rosenne (until his death in September 2010), IDF General (Ret.) Amos Horev, Ambassador Reuven Merhav, and Professor Miguel Deutch. In addition, international observers were appointed to the Commission: Lord David Trimble, Brigadier-General (Ret.) Kenneth Watkin (until May 2011) and Professor Tim McCormack (from June 2011). The Commission was asked to examine the legality of the blockade on Gaza and whether the actions carried out by Israel to enforce the blockade on board the Mavi Marmara were legal. These questions were addressed by the Commission in its First Report, submitted to the government in January 2011.1
The Commission’s mandate also included assessing Israel’s mechanisms for examining and investigating violations of international law according to the laws of war.2 The Commission reviewed Israeli military and civilian mechanisms for investigating behavior by the IDF, the Israel Police, the Israel Security Agency (ISA), the Israel Prison Service and the civilian echelon, and the compatibility of those accountability structures with Israel’s obligations under international law.3 This part of the mandate formed its Second Report, submitted to the Government of Israel in February 2013, and it is this Report that informs the analysis of this article. The Second Turkel Report is concerned with accountability and, therefore, with a topic of much broader scope than the First Turkel Report. The final (brief) chapter of the Second Report does in fact assess the investigation into the maritime incident; however, this investigation was not the focus of the Report, but rather a case study that was considered against the backdrop of the legal analysis and recommendations made by the Commission in the previous chapters of the Report. Although the government attached the subject of Israel’s mechanisms for investigating violations of the laws of war to the Commission’s mandate on the maritime incident, the broader political and legal context cannot be ignored, especially given the Commission’s decision to divide these two aspects of its mandate into separate reports. In recent years Israel has come under criticism internationally and domestically in its handling of investigations into military operations, most notably in the Goldstone Report.4 Therefore, in discussing the Second Turkel Report, sensitivity to the political and legal setting, far beyond the Gaza Flotilla, is important in understanding the nature of this Report and its place in the larger debate on the international law requirements to conduct investigations.
Mapping the structure and purpose of the Report is helpful in navigating through the content and relevance of its nine hundred pages. This chapter will dedicate much of its attention to the first chapter of the Report (Chapter A), which outlines the Commission’s understanding of the duty to investigate under international law. As will be discussed in detail below, it sets the context for the following chapters of the Report, which cover: a survey of state practice (Chapter B), a description of the current Israeli investigative mechanisms (Chapter C), the Commission’s recommendations (Chapter D) and, as mentioned above, a final chapter on the investigation into the Marmara incident (Chapter E). In addition to its in-depth analysis of the obligations under international law in Chapter A, one of the contributions of the Turkel Report is its comparative survey. It dedicates a chapter (as well as a hefty annex) to the practice of six countries in the field of investigations.5 Although it is beyond the scope of this article to discuss specific national investigative processes, it is worth noting that Chapter B of the Report demonstrates how references to the practice of states can help to elucidate some of the key processes involved in adhering to a vague international law obligation. The Commission’s recommendations in Chapter D refer to Chapter B. This is done by way of comparison, offering some practical details to aid in conceptualizing an obligation lacking specificity, rather than as a prescriptive way of stating that these are the processes that must be implemented in order to fulfill the international obligation.6
Significantly, in terms of the practical impact of the recommendations concerning changes to the Israeli mechanisms for conducting investigations, the final recommendation of the Report calls on the Prime Minister to appoint an implementation team to monitor the implementation of the recommendations. In January 2014, the government appointed an implementation team that has until September 2014 to submit its recommendations to the Prime Minister.7 The focus of this article will be on the way in which the duty to investigate, as outlined in Chapter A of the Report, shaped the Commission’s recommendations presented in Chapter D of the Report, which mainly relate to Israel’s military justice system. The Report is the first major study on the duty to investigate under international law and therefore in addition to its potential significance for the future face of Israel’s military justice system, it contributes to the direction of international legal debate on the scope of the international law obligation to investigate.
6.3 The Commission’s Analysis of the Obligation to Investigate under International Law
There are various normative frameworks under international law that comprise the obligation to investigate, one of which is IHL. Chapter A of the Turkel Report found IHL to be the primary body of law relevant to the question under consideration for the obvious reason that the mandate required it to assess the obligation to investigate violations deriving from that body of law.8 Treaty provisions on the duty to investigate under IHL are sparse and therefore the analysis of the Turkel Commission is a welcome contribution to understanding the contours of the duty to investigate according to IHL. Other bodies of law that are discussed in the Report insofar as they are relevant to the duty to investigate in situations of armed conflict are IHRL, international criminal law (ICL) and the law on state responsibility. The way in which the chapter structures its analysis is by dividing it into four questions: Why investigate? What to investigate? When to investigate? and How to investigate? This structure is repeated in the subsequent chapters of the Report. This section of the article will focus on the first three questions posed by the Commission: why investigate (i.e., sources of the duty to examine and investigate complaints and claims of violations of IHL); what to investigate (i.e., violations of IHL that require examination or investigations) and when to investigate (i.e., the grounds for carrying out the obligation to examine and investigate).
The Turkel Commission distinguished a ‘general duty to broadly examine all suspected violations of IHL … [from a] duty to investigate certain types of alleged violations known as “war crimes”.’9 The Commission saw no difference between the law of international armed conflict (IAC) and non-international armed conflict (NIAC) with regard to the obligation to examine and investigate, which is in keeping with the growing trend that the rules of IAC can be applied by analogy to NIAC.10
The Commission equates the duty to examine with the general obligation of ‘compliance’ in IHL.11 Examples that facilitate compliance include training, reporting duties and disciplinary measures.12 Furthermore, it connects the duty to examine to the concept of ‘suppression’, which is found in the relevant treaty law. Article 146 of the Fourth Geneva Convention (‘GCIV’) states: ‘Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article’.13 The Commission equates the notion of ‘suppress’ with ‘a general duty to prevent all violations of international humanitarian law’.14 The focus on all violations is consistent with a strict reading of this provision and the corresponding Commentary, which explains this paragraph to cover ‘breaches other than the graves breaches listed’.15 The Commission takes ‘suppress’ to mean ‘examine’ and interprets the concept to cover ‘prevent’. An examination—according to the Commission’s analysis—does not need to abide by the more strict standards for conducting an investigation. The only guidance for its format is that it ‘must be conducted in a fashion that guarantees the suppression of violations and ensures future compliance with international humanitarian law’.16 Therefore, the Commission’s conception of the obligation to examine all violations is derived from compliance and prevention, two underlying themes in IHL treaty law.
In addition to the duty to examine, the Commission views the treaty law to place an obligation to ‘search and bring to trial those allegedly responsible for certain types of violations of the Convention’.17 It defines and distinguishes this duty in its account of the concept ‘repress’. Thus, the Commission has interpreted the first two paragraphs of Article 146 of GCIV as an obligation to ‘repress’, which requires an investigation (encompassing all stages of the process from searching and bringing to trial to enacting legislation) into certain types of violations.18
The distinction made by the Commission between ‘suppress’ and ‘repress’ is further developed in its discussion of another source for the obligation to investigate and examine: the obligations imposed on military commanders and other superiors.19 The Commission interprets the obligation on commanders and other superiors, set out in Articles 86 and 87 of Additional Protocol I to the Geneva Conventions as ‘obligating superiors to prevent and punish’. The two Articles and the corresponding Commentary are not consistent in their use of the terms ‘suppress’, ‘repress’ ‘prevent’ and ‘punish’. At some points they are used interchangeably (Article 87) while at other points (Article 86) they are used differently.20 Given this vagueness, the Commission’s decision to define ‘suppress’ to mean ‘prevent’ and ‘repress’ to mean ‘punish’ and to make those definitions correspond to its distinction between ‘examine’ and ‘investigate’ is refreshing in its clarity though it may be vulnerable to criticism concerning its legal accuracy.
18.104.22.168 Threshold for Opening an Investigation
The distinction between the duty to ‘examine’ and the duty to ‘investigate’ is not limited to the nature of the violations: it also extends to the grounds for carrying out such inquires.
22.214.171.124 War Crimes
Allegations of war crimes are the types of violations under IHL that require investigation. The Commission takes the concept of a war crime to be broader in scope than the grave breaches enumerated in the treaty law and sees it to encompass ‘serious violations’.21 This approach is supported by the jurisprudence of the international tribunals.22 In setting out the threshold for an investigation the Commission found that an investigation is triggered when ‘a credible accusation is made or a reasonable suspicion arises that a war crime has been committed’.23
The first recommendation made by the Commission in Chapter D of the Report concerns the type of violations that require investigation. Israel does not have comprehensive legislation addressing war crimes.24 The Commission found it satisfactory to ‘translate’ the behavior amounting to war crimes into an existing offense into domestic law (for example, murder) as long as such offenses reflect the severity of war crimes, and where there are gaps between the regular penal offenses and the international prohibitions, they must be filled.25 Nonetheless, the recommendation emphasized the normative value in adopting international norms relating to war crimes into Israeli domestic legislation.26 It is noteworthy, particularly in the context of its recommendation about the ISA,27 that the example the Commission provides for the kind of international prohibitions requiring translation into domestic legislation is that of torture and inhuman and degrading treatment.28 Political willingness to adopt all war crimes into domestic legislation will be predictably weak, particularly in the context of Israel’s settlement policy.29
126.96.36.199 The Right to Life
The Report is not concerned only with situations of active combat, but also situations of internal disturbances, thus making the duty to investigate relevant under IHRL. Until this point, the discussion in this article has focused on the duty to investigate according to IHL. The Commission does, however, also address the duty to investigate under IHRL. The most significant difference between the duties under the different frameworks is the grounds for triggering an investigation. As stated above, under IHL, a reasonable suspicion of a war crime requires an investigation to be opened. Under IHRL, the range of activities requiring an investigation is much wider, thus making the threshold lower than under IHL. The obligation to investigate violations of IHRL derives from the general obligation ‘to uphold and guarantee’ human rights and from the right for ‘effective remedy’ by a competent authority.30 Various human rights sources have interpreted the substantive rights and the general obligation to ensure the realization of human rights to include the obligation to investigate human rights violations. In particular, the right to life has been interpreted to require an investigation immediately following the use of lethal force in a law enforcement context. This is based on the assumption that in law enforcement situations, non-lethal measures, such as arrest, are available to the relevant authorities due to their level of control over the situation and, as such, it is rare that the nature of the threat is so imminent that lethal force is considered necessary and proportionate.31
188.8.131.52 Understanding the Commission’s Approach to Thresholds
The Commission develops the threshold for opening an investigation by explaining that the obligation to investigate the death of an individual will depend on the legal regime governing the specific activity, for example IHL or IHRL. This is because the context dictates the criminality.32 For example, in the context of armed conflict, the death of an uninvolved civilian during hostilities does not of itself give rise to an immediate duty to investigate, primarily because the principle of proportionality may permit collateral damage (and therefore there may be no reasonable suspicion of a war crime). However, a situation of law enforcement the killing (or serious injury) of an individual by security forces automatically requires an immediate duty to investigate because of the suspicion of criminality inherent in such a situation.33 Attention is also drawn to the trickier context of law enforcement activity that occurs during armed conflict. When force is used against civilians in operations that are not of a combat nature, the death or serious injury to an individual ‘during operations of this kind may, prima facie, give rise to greater suspicion of criminality than collateral damage during a combat action and, in certain circumstances, will also require the immediate commencement of an investigation’.34 Therefore, the grounds for triggering an investigation depend very much on the applicable normative framework.
The significance of the Commission’s approach to the question of when an investigation is required is demonstrated by the breadth of situations the Commission saw relevant to its analysis. The Report is not only concerned with situations of active combat (akin to Operation Cast Lead or Pillar of Defense in Gaza35) but also to situations of internal disturbances during a situation of law enforcement (for example, during a protest in Bil’in in the West Bank36). It highlights the importance of understanding and applying this duty not only to situations of ‘war’ but also to a situation of relative calm. The Commission’s well-considered approach should be applauded because it reflects an attempt to assess the legal duty in a way that is sensitive to the realities on the ground. This deliberately expansive approach of the Report must be kept in mind when critics (particularly those familiar with the operational realities) question the practical relevance of the Commission’s recommendations in the light of the constraints that occur during active combat. The approach is also pertinent for other reasons, which relate to criticisms raised since the publication of the Turkel Report that note the IDF’s ongoing failure to investigate incidents involving the use of lethal force during civilian protests in the West Bank.37 Time will reveal whether the Report’s efforts to be sensitive to the realities on the ground in fact alter current practice.
6.3.3 Fact-Finding Assessment
In the context of its discussion of the grounds for opening an examination and an investigation, the Commission introduces the concept ‘fact-finding assessment’. This lives in the world of examination, where the threshold of reasonable suspicion of war crime has not been met in order to trigger an investigation. However, what distinguishes a fact-finding assessment from an examination is that the former relates to those incidents where further information is required in order to determine if there has been a credible allegation of a violation that may subsequently trigger an investigation if the assessment reveals a reasonable suspicion of a war crime.38
One of the motivations behind the fact-finding assessment is to ensure that potential violations that do not quite meet the threshold of reasonable suspicion are still looked into. According to the Commission, a fact-finding assessment is needed when an ‘exceptional’ incident has occurred that points to facts or circumstances that might subsequently reveal the need for an investigation. The example the Commission provides of such an incident is ‘civilian casualties that were not anticipated when the attack was planned’.39
The Commission relies on the fact-finding assessment in its recommendation about the operational debriefing, the current mechanism used by the IDF for deciding whether to open an investigation. An operational debriefing is a key ‘organizational learning tool’ of the IDF, which is aimed at improving the function of the military units.40 Generally, a person in the chain of command of the unit involved in the operation conducts the debriefing. It is classified and the standard rules of evidence do not apply.41 The Commission found that in its current form, the debriefing fails to adhere to international law and suggests the fact-finding assessment as the alternative mechanism to be established in its place. The Commission recommends that where more information is required to establish whether there is a reasonable suspicion of criminal activity, the Military Advocate General (MAG) can decide to order a special ‘fact-finding assessment team’ to examine the circumstances of the incident within a specified time frame.42
6.3.4 Relevant Normative Frameworks
In outlining the sources for the duty to examine and investigate, the violations that require examination or investigations, and the grounds for carrying out the obligation to examine and investigate, the Commission primarily focused on aspects of the duty to investigate according the IHL. Other bodies of law are also relevant to the task of making the content of the obligation more visible, the most notable of which is IHRL. This is reflected in the relevant thresholds for opening an investigation and the significance of IHRL to the Commission’s interpretation of the duty to investigate will be further explored in Sect. 6.4. In identifying ICL as a relevant source, the Commission discusses the principle of complementarity, which emphasizes the primacy of investigations by the national justice system over international courts, through the application of the ‘unwilling and unable’ test.43 The discussion highlights the close relationship between IHL and ICL, the latter viewed as the natural extension of the former. This is reflected most obviously in the overlap in the content of the crimes; for our purposes, the prosecution of war crimes. Though it is cursory, the discussion on the law of state responsibility adds to the discussion in terms of comprehensiveness in order to illustrate that individual acts can be attributed to the relevant state, making it responsible for dealing with violations of the law.44 The Report’s methodical approach of systematically laying out the relevant normative frameworks contributes to the thoroughness of its analysis, which demonstrates that the meaning of the obligation varies under the different bodies of law and that there is not one ‘single’ obligation according to international law.
6.3.5 Concluding Comments on the Commission’s Legal Analysis of Duty to Investigate International Law Violations
Section 6.3 has outlined the kinds of inquiries and the types of violations that require investigation according to the Turkel Commission’s analysis. In summary, the Report interprets the obligation to investigate to entail a duty to examine all IHL violations and a duty to investigate reasonable suspicions of serious violations under IHL and violations under IHRL. Furthermore, the Report explains the distinct thresholds for opening an investigation through the example of a death of an individual in various contexts. In addition to an examination and an investigation, the Turkel Commission also introduces a fact-finding assessment, which is a type of examination relevant for exceptional incidents where information is only partial and which may lead to an investigation if further evidence determines there is a reasonable suspicion that a war crime has been committed. The detail the Report provides on the kind of inquiries relevant and the potential normative regimes applicable contributes to a rich account of the duty to investigate which is further elaborated in its analysis on the manner of conducting such inquiries, discussed below.
6.4 How to Investigate: Principles for an ‘Effective Investigation’
Section 6.4 will address the last question addressed by the Commission in its legal analysis: how to investigate (i.e., the method of conducting an examination and an investigation). This goes to the core of the duty to investigate because it provides guidance on how to conduct such inquires. Regrettably, IHL has very little lex scripta on the processes for fulfilling the duty to investigate. Fortunately, IHRL jurisprudence, on the other hand, provides detail on the manner of conducting an investigation. The Commission perceives the purpose of this aspect of the obligation as being ‘capable of identifying those responsible and committing them to justice’.45 This is encompassed under the framework ‘effective investigation’.46 The general principles that comprise an ‘effective investigation’ are independence, impartiality, thoroughness and effectiveness and promptness. These principles have been recognized and accepted in UN documents as well as by scholars.47 The Commission also identifies a fifth—transparency. Fundamental to understanding the Commission’s interpretation of the duty to investigate is that with regard to the four principles the Commission sees ‘no fundamental difference’ between the principles for conducting an effective investigation in a law enforcement context and an armed conflict context except that the ‘precise content’ of the principles may differ in their application due to sensitivity to the surrounding context and circumstances.48 The remainder of Chapter A of the Report is arguably the most important because it is devoted to explaining each of the general principles (based on IHL, ICL and IHRL, and more importantly, the jurisprudence of the European Court of Human Rights jurisprudence) and then how the principles translate to a situation of armed conflict. The Commission’s careful approach of applying IHRL principles to armed conflict is demonstrated by the specific modifications of the principles in the context of hostilities. This is one of the real contributions of the Turkel Report.
In order to understand what the Commission envisioned by requiring an ‘effective investigation,’ each principle, and how it is modified in a situation of armed conflict, will be explained in brief, in addition to the way the Commission drew on this legal analysis in many of its recommendations in Chapter D. In setting out Israel’s international law obligations to investigate, the Commission provides recommendations on how the current system can better meet those obligations.
The requirement of independence is one of the most fundamental and obvious tenants of a credible investigation. On this matter it is generally believed to be a truism that investigators cannot investigate themselves.49 The principle broadly relates to the requirement that the investigation be both institutionally and practically independent from the event under investigation.50 Importantly, the Commission found that a military justice system can be sufficiently independent to undertake an investigation.51 The way the Commission modified the application of the principle in the context of an armed conflict is by explaining that independence (and impartiality) is reflected in the investigation being outside the chain of command, while at the same time ensuring that the investigator has adequate operational knowledge in order to perform an effective investigation.52
The Commission attempted to protect independence within the military justice system by addressing safeguards for the MAG’s position, the head of this system.53 Other relevant recommendations include replacing the function of the operational debriefing with a fact-finding assessment, in part to ensure that the initial information about an alleged violation is gathered by a special team outside the chain of command rather than by the commander of the unit whose activity is under consideration.54 The internal nature of the debriefing renders it inconsistent with the principle of independence, even in times of armed conflict.55 It is unclear whether the government will implement the proposal to limit the debriefing—one of the most significant recommendations made by the Commission; however, publicly available information suggests that the operational debriefing was not relied on by the MAG Corps to make the decision whether to open investigations into incidents that occurred in Operation Pillar of Defense. Rather, some kind of ‘preliminary examination’ was carried out by ‘a Special General Staff Commission’. This seems to resemble to concept of the ‘fact-finding assessment’ and ‘fact-finding assessment team’ articulated by the Commission.56 This is a welcomed development if in fact it achieves the purpose of strengthening accountability. The extremely low number of preliminary investigations that resulted in the opening of investigations into incidents that occurred during Pillar of Defense (i.e., the decision that the threshold of reasonable suspicion of criminality had not been met) has provoked skeptical response in the MAG Corps approach, notably from the UN Secretary-General.57