Australia/Israel & Jewish Affairs Council

Turkel Report II - Israel earns praise from Australian expert for inquiry into international law obligations

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Around two weeks after the May 31, 2010 flotilla incident aboard the Mavi Marmara, when Israel's enforcement of its naval blockade on the coast of the Gaza Strip led to the deaths of nine Turkish activists, Israel established an independent public commission of inquiry to examine whether it complied with its obligations under international law. This was known as the Turkel Commission, after Jacob Turkel, the retired judge who served as its Chairman.

The First Report of the Turkel Commission received by Israel on 23 January 2011 examined the legality of Israel's naval blockade imposed on the Gaza Strip and the legality of the actions carried out by Israel's Defence Forces in order to enforce the naval blockade in accordance with the rules of international law.

A summary of the report concluded that "that the imposition of the naval blockade on the Gaza Strip was lawful and complied with the rules of international law, in view of the security circumstances and Israel's efforts to fulfill its humanitarian obligations." It is worth noting that the UN's Palmer report in 2011 similarly concluded that Israel's blockade of the Gaza Strip is legal under international law and that Israel has the right to enforce that blockade - including in international waters (see previous article).

The First Report also examined and repudiated the oft-heard claim that Israel is imposing "collective punishment" on Gaza, stating in its summary report:

"The Commission's conclusion is that the imposition and enforcement of the naval blockade on the Gaza Strip - even when they are considered together with the land crossings policy - do not constitute ‘collective punishment' of the population in the Gaza Strip. There is nothing in the evidence, including the material contained in the many humanitarian reports and human rights reports that were before the Commission, that indicates that Israel deliberately imposed restrictions on bringing goods into the Gaza Strip with the sole or main purpose of denying them to the civilian population of the Gaza Strip. Rather, the restrictions were put in place to limit the Hamas' abilities - including its economic ability - to carry out attacks against Israel."

On Feb. 6, Israel received the Second Report of the Turkel Commission evaluating the manner in which Israel examines and investigates allegations that it has violated the laws of armed conflict. This report is also intended to be proactive - looking at ways to improve Israel's future ability to handle allegations about violations of the laws of war.

As the Report's preface states:

"Unlike the Commission's First Report, where the examination was carried out retrospectively, this Report is prospective and its purpose is to identify principles and methods to improve the mechanisms functioning in Israel, to ensure that they conform to the rules of international law and to the currently prevailing trends in other countries."

Moreover unlike, the First Report, this Second Report was compiled with the assistance of an Australian expert invited to participate as an observer - Prof. Tim McCormack of Melbourne University, whose area of expertise is international humanitarian law.

Commenting on the findings of the Second Report, Commission Chairman Turkel said:

"The Committee determined that the examination and investigation mechanisms for complaints and allegations of violations regarding the existing laws of armed conflict in Israel are, generally, in keeping with the obligations of the State of Israel and are in accordance with the rules of international law. However, the Commission believes that in certain areas there is room for improvement vis-à-vis the examination and investigation mechanisms. In some areas, there is room for changes in the accepted policy. The view of the Commission is that the implementation of the recommendations will contribute to improved efficiency in the examination and investigation mechanisms as per the norms of enlightened nations."

Prof. Tim McCormack was highly complimentary following the release of the Report:

"I know that no other study is [as] comprehensive as this on the international legal obligations relating to investigation on accountability for alleged violation of international humanitarian law. I've learned a great deal myself from being involved in the process of the commission and the preparation of the report and I think the State of Israel should be very proud of this contribution to the study of a very important area of the law."

Prof. McCormack also wrote in the Second Report itself that he thought the inquiry could serve as a role model to other countries:

"I considered the focus of Phase II of the Commission's Inquiry - Israel's Mechanisms for Examination and Investigation of Alleged Violations of the Law of Armed Conflict - both intriguing and laudable. I was impressed that the Government of Israel was prepared to undertake this broad- ranging inquiry into its structures and procedures for investigating alleged violations of the Law of Armed Conflict and that they would do so by involving international observers throughout every stage of the inquiry process and ensuing deliberations. Other States would do well to follow Israel's example by including international observers in commissions of inquiry and, in my view, Israel itself would benefit from consistently following its own lead in the proceedings of all its other commissions of inquiry....
At the time of my appointment to the Commission, my own nation of Australia was engaged in an ongoing process of reform of our military justice system. I was particularly interested in the comparative study of selected national military justice systems by the Commission and was extended the privilege of preparing the Australian national report for this study."

Fellow Commission observer Lord David Trimble of the UK also praised Israel's legal system:

"When taken as a whole, looking at the Israeli legal system, it will pass muster with the best in the world. Not to say that there are things that can't be improved, that's the case in all systems. But I think you'll be very pleased with this report and I think the people of Israel should also."

Israeli Prime Minister Benjamin Netanyahu welcomed the Second Report of the Turkel Commission, and noted that Israel's decision to establish the Commission reflects its willingness to review it processes and continue to comply with international law:

"I welcome the Commission's determination that, in general, the investigation mechanisms in Israel operate in accordance with the standards set in international law. We will consider the areas in which the Commission has made recommendations regarding changes and improvements. The establishment of the Commission and the mandate that it received underscore how determined we are to continue operating according to international standards. This is despite the fact that we must deal, in various spheres, with terrorist organizations that rudely trample on the principles of international law. Some of our enemies perpetrate two-fold war crimes, when they fire at civilian populations from inside civilian populations. Israel is fighting for its life but will do so - as much as possible - in accordance with the international rules."

The Turkel Commission is comprised of the following legal experts:

Supreme Court Justice (ret.) Jacob Turkel, chairman; General (ret.) Amos Horev; Ambassador Reuven Merhav; and Prof. Miguel Deutch. In addition, the following foreign experts were appointed to act as observers: Lord David Trimble of Ireland, a Nobel Peace Prize winner and formerly First Minister of Northern Ireland, and Brigadier-General (ret.) Kenneth Watkin, former Judge Advocate General of the Canadian Forces. Brigadier-General Watkin resigned as a foreign observer on the Commission in April 2011 because of a previous undertaking. Timothy McCormavk, a Professor of Law at Melbourne University Law School, and the Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court in The Hague, was appointed in his place. Other world-renowned legal experts also assisted in the writing of the report.

Clink on the link to view the Second Report and Summary Report's recommendations and findings.

Sharyn Mittelman

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