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Yearbook of International Humanitarian Law 2013 pp 119–145Cite as

A Critical Discussion of the Second Turkel Report and How It Engages with the Duty to Investigate Under International Law

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Part of the book series: Yearbook of International Humanitarian Law ((YIHL,volume 16))

Abstract

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.

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.

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Notes

  1. 1.

    Turkel Commission Report Part One 2011a, b.

  2. 2.

    Resolution No. 1796 of the 32nd Government, Appointment of an Independent Public Commission, Chaired by Supreme Court Justice (ret.) Jacob Turkel, to Examine the Maritime Incident of 31 May 2010 (6 June 2010), para 5.

  3. 3.

    Turkel Commission Second Report 2013, pp. 432–463.

  4. 4.

    Goldstone Report 2009. See also, Tomuschat Report 2010; McGowan Davis Report 2011; B’Tselem 2010.

  5. 5.

    The Commission examined the military justice system of six countries and outlined the various mechanisms within those systems. Other reports on accountability have focused on different kinds of state practice. For example, the Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka interprets relevant state practice to be transitional justice mechanisms in a post-conflict society. See Darusman Report 2011, paras 269, 327, 396.

  6. 6.

    For example, Chapter B highlights the importance of comprehensive reporting systems. In addition, the Commission further clarifies what it means by a ‘fact-finding assessment’ (discussed in Sect. 6.3.3 of this chapter) by drawing a comparison to preliminary stages of investigations that exist in some of the countries surveyed. Turkel Commission Second Report 2013, pp. 253–254, para 76; p. 257, para 78; p. 259, para 79; p. 261, para 81; p. 263, para 81.

  7. 7.

    Turkel Commission Second Report 2013, p. 422, para 101; Decision number 1143 of the government, 5 January 2014, available at: http://www.pmo.gov.il/SECRETARY/GOVDECISIONS/pages/default.aspx?PN=1 (Hebrew).

  8. 8.

    Turkel Commission Second Report 2013, pp. 55–59, paras 4–5.

  9. 9.

    Ibid, pp. 73–74, para 22.

  10. 10.

    Ibid, pp. 79–81, para 27. The same approach was taken in the Darusman Report 2011, para 268. See, more generally, ICTY, Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber (IT-94-I-AR72), 2 October 1995, paras 109–127; Henckaerts and Doswald-Beck 2005, p. xxxv.

  11. 11.

    Turkel Commission Second Report 2013, p. 74, para 23. The primary treaty provision referred to by the Commission is Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (hereinafter: API), Article 87; Sandoz et al. 1987, paras 1017–1023.

  12. 12.

    Turkel Commission Second Report 2013, p. 74, para 23.

  13. 13.

    Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (hereinafter: GCIV), Article 146(3).

  14. 14.

    Turkel Commission Second Report 2013, p. 74, para 23.

  15. 15.

    Pictet 1956, p. 594.

  16. 16.

    Turkel Commission Second Report 2013, p. 112, para 61.

  17. 17.

    Ibid, p. 75, para 24; Article 146 GCIV.

  18. 18.

    Ibid, pp. 75–76, para 24; Article 146 GCIV and Article 85 API.

  19. 19.

    Ibid, pp. 77–79, para 26; Articles 86–87 API. The Commission emphasizes that tribunals, statutes and commentators have recognized this obligation: See, e.g., Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/RES/827 (1993), 25 May 1993 (hereinafter: ICTY Statute), Article 7(3); Statute for the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955 (1994), 8 November 1994, (hereinafter: ICTR Statute), Article 6(3); Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2178 UNTS 3 (entered into force 1 July 2002) (hereinafter: Rome Statute), Article 38(a); ICTY, Prosecutor v. Blaškić, Judgment Appeals Chamber (IT-95-14-A), 29 July 2004, para 69; ICTY, Prosecutor v. Halilović, Judgment Trial Chamber (IT-01-48-T), 16 November 2005, para 39; ICC, Prosecutor v. Jean Pierre Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Pre-Trial Chamber II (ICC-01/05-01/08-424), 15 June 2009, paras 402–443; Henckaerts and Doswald-Beck 2005, rule 152.

  20. 20.

    See Articles 86–87 API; Sandoz et al. 1987, paras 1007, 1010–1011, 1015, 1019, 1022–1023.

  21. 21.

    Turkel Commission Second Report 2013, pp. 94–99, paras 39–45.

  22. 22.

    Ibid, pp. 96–97, paras 41–42; Article 1 ICTY Statute; Tadić, supra n 10; Article 8 Rome Statute.

  23. 23.

    Turkel Commission Second Report 2013, p. 100, para 46. For an insightful explanation of what makes an allegation credible see Darusman Report 2011, para 52.

  24. 24.

    See Turkel Commission Second Report 2013, pp. 273–274, para 9; p. 363, para 7.

  25. 25.

    Ibid, pp. 364–365, paras 8–10.

  26. 26.

    Ibid, pp. 362–366, paras 5–12.

  27. 27.

    One of the harshest recommendations of the Report is a response to the criticism of the ISA. Based on the material submitted to the Commission it found that over 700 complaints by individuals interrogated by the ISA were submitted the Interrogatee Complaints Comptroller (Mavtan) who is a senior ISA employee. The Mavtan’s supervisor never initiated a criminal investigation on the basis of the complaints. The Commission recommended moving the Mavtan to the Ministry of Justice. The Commission recommended moving the Interrogatee Complaints Comptroller (Mavtan) who is a senior ISA employee the Ministry of Justice. In June 2013 it was reported in the press that this recommendation was implemented. Ibid, pp. 413–416, paras 86–90. See, also, the recommendation that ISA interrogations must be videotaped. Ibid, p. 417, para 97; Ravid 2013.

  28. 28.

    Ibid, p. 365, para 10.

  29. 29.

    Article 49(6) GCIV. See also Henckaerts and Doswald-Beck 2005, rule 130; Human Rights Council Report 2013, para 104.

  30. 30.

    Turkel Commission Second Report 2013, pp. 82–84, paras 29–31. See, e.g., International Covenant on Civil and Political Rights, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (hereinafter: ICCPR), Article 2; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), Articles 6–8; Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, paras 15, 18; ECtHR, McCann v. The United Kingdom, Judgment (Appl. No. 18984/91), 27 September 1995, para 42; Articles 6, 11(f), 22–23 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, GA Res. 45/166 (18 December 1999); Articles 9–11 of the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, Recommended by ECOSOC Res. 1989/65 (24 May 1989), UN Doc. E/1989/89.

  31. 31.

    Basic Principles, supra n. 30; Principles on the Effective Prevention, supra n 30, Article 1; McCann, supra n 30, paras 203–214.

  32. 32.

    Turkel Commission Second Report 2013, pp. 100–101, para 46.

  33. 33.

    Ibid, pp. 101, 103, paras 47, 51.

  34. 34.

    Ibid, pp. 105–106, para 53. The example the Commission provides of such a situation is forcefully clearing a residence because it is usually an act of traditional law enforcement.

  35. 35.

    ‘Operation Cast Lead’ occurred between December 2008 and January 2009. The IDF launched the 22-day operation and it is estimated that over 1,300 Palestinians were killed and over 5,320 were wounded. Three Israeli civilians and one soldier were killed and more than 84 injured by rockets fired into Israel. Nine Israeli soldiers were killed in combat within the Gaza Strip (four by IDF fire) and 113 were wounded. ‘Pillar of Defense’ was an operation launched on 14 November 2012 by the IDF and it lasted 8  days, until a ceasefire was reached between Israel and Hamas. Five Israeli civilians were killed from rocket fire, 167 Palestinians were killed, including at least 87 that did not take part in hostilities, 32 of whom were minors.

  36. 36.

    See Abu Rahma case, which dealt with the investigative file into a death that occurred during a protest in Bi’lin. HCJ 6547/11, Abu Rahma et al. v. the MAG, available at: http://elyon1.court.gov.il/files/13/470/016/t13/13016470.t13.pdf. See also http://elyon1.court.gov.il/files/11/470/065/c14/11065470.c14.htm. http://www.btselem.org/download/20130903_abu_rahmeh_file_closure_statement.pdf (Hebrew); Turkel Commission Second Report 2013, p. 31.

  37. 37.

    See Amnesty International 2014, which focuses on the right to protest and claims that Israeli forces frequently respond to stone-throwing protests using excessive force, including the use of live fire against protesters, causing unlawful deaths and injuries. The report further claims there are deficiencies in the Israeli system for investigating alleged violations by the IDF. The report dedicated particular attention to the case of Samir Awad, a 16-year-old Palestinian who was shot and killed by an Israeli soldier in January 2013 when he was protesting against the construction of a section of separation barrier that cuts across the village of Bodrus, where he lived. Awad’s father, together with B’Tselem, petitioned to the High Court of Justice over the delay concerning the investigation into Awad’s death and the MAG’s failure to decide whether to prosecute those responsible. See http://www.btselem.org/press_releases/20140327_samir_awad_investigation_petition.

  38. 38.

    Turkel Commission Second Report 2013, pp. 102–103, para 49; p. 106, para 54; p. 378, para 30.

  39. 39.

    Ibid, p. 103, para 49. See, also, Margalit 2012 for an insightful analysis on the circumstances that give rise to a duty to investigate civilian casualties caused by a suspected failure to take precautions in attack, and more generally on the circumstances that give rise to a duty to investigate civilian casualties, which indicate an IHL violation that does not trigger individual criminal responsibility.

  40. 40.

    Position Paper of the Military Advocate General 2011, pp. 15–16.

  41. 41.

    Military Justice Law 5715 (1955), Article 539A (Hebrew).

  42. 42.

    Turkel Commission Second Report 2013, p. 383, para 35. For further discussion of this recommendation see pp. 15–16.

  43. 43.

    Ibid, pp. 85–92, paras 32–36; Article 17 Rome Statute.

  44. 44.

    Ibid, p. 92, para 37; Articles and Commentaries on Responsibility of States for Internationally Wrongful Acts, Annex GA Res. 56/83 (21 December 2001). For a discussion of the relationship between state responsibility and accountability see Darusman Report 2011, para 191.

  45. 45.

    Turkel Commission Second Report 2013, p. 114, para 62.

  46. 46.

    Ibid, pp. 112–118, paras 62–66; Halilović, supra n 19, paras 97–98.

  47. 47.

    See, e.g., The Basic Principles and Guidelines on the Right to Remedy and Reparations for Victims of Violations of International Human Rights and Serious Violations of International Humanitarian Law, adopted by GA Res. 60/147 (16 December 2005), UN Doc. A/RES/60/147, 21 March 2006; Goldstone Report 2009, para 1814; Tomuschat Report 2010, para 30; Darusman Report 2011, paras 262–264; Schmitt 2011, p. 83; Cohen and Shany 2011, p. 60.

  48. 48.

    Turkel Commission Second Report 2013, p. 115, para 63.

  49. 49.

    See, e.g., Benvenisti 2009; B’Tselem 2010.

  50. 50.

    Turkel Commission Second Report 2013, pp. 118–125, paras 67–74.

  51. 51.

    Ibid, pp. 123–125, para 73.

  52. 52.

    Ibid, pp. 140–141, paras 98–100.

  53. 53.

    It recommended: (i) the MAG’s professional subordination to the Attorney General should be institutionalized through legislation and organizational arrangements; (ii) the MAG should be appointed by the Minister of Defense based on the recommendation of a professional committee to which the Attorney-General is a member or chair; (iii) the MAG’s tenure and rank should be fixed. See ibid, pp. 391–392, paras 50–52.

  54. 54.

    Ibid, pp. 382–383, paras 34–35. Other relevant recommendations include recommendation 6 (the decision to open an investigation), which suggests that the MAG provide reasoning for every decision not to open an investigation p. 386, para 41. See also p. 421, para 99: recommendation 17 (commissions of inquiry) where the Commission emphasized the importance of safeguards in the commission’s mandate to ensure its independence.

  55. 55.

    For criticism of the debriefing see Cohen and Shany 2011, pp. 70–71; Yesh Din 2011, p. 9; FIDH 2011, p. 9. For a defense of the debriefing see Position Paper of the Military Advocate General 2011, p. 16.

  56. 56.

    Israel Defense Forces 2013.

  57. 57.

    Ibid. In April 2013, the MAG publicly issued an update on the investigative process. The document stated that in relation to the 87 incidents that were cited as having occurred during Operation Pillar of Defense, it found no basis to open criminal investigations into approximately 65 incidents. Moreover, with respect to 15 incidents, additional information was required in order to make a decision whether to open an investigation. See also Report of the Secretary General 2013, para 31.

  58. 58.

    Turkel Commission Second Report 2013, pp. 184–185, para 23; p. 191, para 25; pp. 192–193, para 27; p. 260, para 80.

  59. 59.

    Ibid, p. 401, para 71; pp. 402–403, para 74; p. 408, para 79.

  60. 60.

    It should be noted that the role of the Attorney General is different in Israel than in common law countries such as the United Kingdom or Australia, where the individual is an elected member of the Cabinet. In Israel the Attorney General is appointed independently by the government. The Attorney General provides the main legal advice to the Government and also represents the government and state authorities before the courts.

  61. 61.

    Turkel Commission Second Report 2013, p. 125, para 75.

  62. 62.

    Ibid, p. 393, para 54.

  63. 63.

    Ibid, pp. 392–396, paras 53–58.

  64. 64.

    For criticism that the MAG’s joint prosecutorial and advisory responsibilities have created the perception of partiality see Tomuschat Report 2010, para 91. For a response to this criticism see Position Paper of the Military Advocate General 2011, Annex I.

  65. 65.

    Turkel Commission Second Report 2013, pp. 127–131, paras 80–84; pp. 141–143, paras 101–102.

  66. 66.

    Ibid, pp. 374–375, para 23; pp. 372–373, para 21.

  67. 67.

    Ibid, pp. 374–375, paras 22–24.

  68. 68.

    Ibid, p. 397, para 62. The importance with the Commission saw the need for training in relevant areas of international law in order to achieve effectiveness and thoroughness is also reflected in its recommendation for the Prison Service and the National Unit for International Investigations that investigates complaints against wardens: pp. 417–418, paras 93–95 and in the recommendation to create an International Law Department in the Ministry of Justice: pp. 402–403, para 74.

  69. 69.

    Turkel Commission Second Report 2013, pp. 132–134, paras 85–89.

  70. 70.

    Ibid, pp. 143–144, paras 103–105.

  71. 71.

    Ibid, p. 385, para 39; p. 386, para 40; p. 399, para 66.

  72. 72.

    Ibid, pp. 134–137, paras 90–94.

  73. 73.

    Ibid, p. 145, para 106.

  74. 74.

    Ibid, p. 400, para 70.

  75. 75.

    Ibid, p. 399, para 68; p. 400, para 69. This recommendation also applies to recommendation 14. See pp. 408–413, paras 81–85.

  76. 76.

    Emmerson 2013, paras 44–45; Heyns 2013, para 97.

  77. 77.

    Also worth noting in this context is that the previous Special Rapporteur on extrajudicial killings, Philip Alston, has (in his academic writing) emphasised the importance of transparency to the concept of accountability and has lamented the lack of it in the context of the US practice of targeted killing conducted by the CIA. See Alston 2011, p. 314. See also Bovens 2007, p. 453 for an interesting discussion on the relationship between transparency and accountability. He argues that transparency is an instrumental dimension of accountability but it is not constitutive of accountability because transparency does not necessarily involve scrutiny by a specific forum.

  78. 78.

    Heyns 2013, para 100.

  79. 79.

    Turkel Commission Second Report 2013, pp. 147–148, paras 109–112.

  80. 80.

    Emmerson 2013, para 45.

  81. 81.

    Report of the Secretary General 2013, para 31.

  82. 82.

    Cf. Amnesty International 2014, supra n 37, p. 64.

  83. 83.

    Alston 2011, p. 446.

  84. 84.

    Report of the Secretary General 2004, executive summary.

  85. 85.

    Turkel Commission Second Report 2013, p. 49, para 29.

  86. 86.

    Ibid.

  87. 87.

    Ibid, p. 377, para 28.

  88. 88.

    Ibid, p. 49, para 29; p. 153, para 2; p. 361, para 3.

  89. 89.

    Ibid, pp. 64–65, paras 10–11.

  90. 90.

    For example, Israel takes the position that its obligations under the ICCPR do not extend to the Occupied Palestinian Territories (OPT). See, e.g., Consideration of reports submitted by States parties under Article 40 of the Covenant: Addendum to the second periodic report, UN Doc. CCPR/C/ISR/2001/2 (4 December 2001). See also Implementation of the International Covenant on Economic, Social and Cultural Rights: Addendum to the second periodic reports submitted by States parties under Articles 16 and 17 of the Covenant, Israel, UN Doc. E/1990/6/Add.32 (3 August 2001), para 3. For criticism of this position see, e.g., Consideration of reports submitted by States parties under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights, Israel, UN Doc. E/C.12/1/Add.69 (31 August 2001), para12; General Comment No 18: Non-Discrimination, 10 November 1989, para 2.

  91. 91.

    Turkel Commission Second Report 2013, p. 65, para 11.

  92. 92.

    Ibid, pp. 138–139, paras 96–97; p. 146, para 108.

  93. 93.

    Ibid, p. 67, para 13.

  94. 94.

    Ibid, p. 109, para 58.

  95. 95.

    ICJ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) ICJ Rep 226, para 25.

  96. 96.

    It should be noted that the ICJ has progressed beyond the lex specialis framework in its discussion of the interplay between IHL and IHRL. See ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (2004) ICJ Rep 136, para 178; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, (2005) ICJ Rep 168, paras 243–244.

  97. 97.

    Some of the seminal works on this topic take diverging approaches on the interaction between IHL and IHRL. For example, according to Schmitt 2011, p. 84:

  98. 98.

    The nuances of the debate over the interaction of IHL and IHRL and the relevance of the lex specialis doctrine to that debate are beyond the scope of this article. See more generally Milanovic 2011; Lubell 2010.

  99. 99.

    Turkel Commission Second Report 2013, p 69, para 14.

  100. 100.

    Ibid.

  101. 101.

    Droege 2008, pp. 541–542.

  102. 102.

    Goldstone Report 2009; Schmitt 2011; Cohen and Shany 2011.

  103. 103.

    See more generally Bovens 2007, pp. 447–453; Mulgan 2003.

  104. 104.

    See, e.g., Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity 2005, UN Doc. E/CN.4/2005/102/Add.1 (8 February 2005).

  105. 105.

    See more generally Grant and Keohane 2005, p 29.

  106. 106.

    Darusman Report 2005, para 425.

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  1. Hebrew University of Jerusalem, Jerusalem, Israel

    Michelle Lesh

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  1. Michelle Lesh
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  1. Criminal Law, Section Military Law, University of Amsterdam, Amsterdam, The Netherlands

    Terry D. Gill

  2. School of Law, University of Glasgow, Glasgow, United Kingdom

    Robin Geiß

  3. Faculteit Rechtsgeleerdheid, Instituut voor Publiekrecht, Internationaal Publiekrecht, Universiteit Leiden, Leiden, The Netherlands

    Robert Heinsch

  4. Carlton, Victoria, Australia

    Tim McCormack

  5. The Hague, The Netherlands

    Christophe Paulussen

  6. The Hague, The Netherlands

    Jessica Dorsey

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© 2015 T.M.C. Asser Press and the authors

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Lesh, M. (2015). A Critical Discussion of the Second Turkel Report and How It Engages with the Duty to Investigate Under International Law. In: Gill, T., Geiß, R., Heinsch, R., McCormack, T., Paulussen, C., Dorsey, J. (eds) Yearbook of International Humanitarian Law 2013. Yearbook of International Humanitarian Law, vol 16. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-038-1_6

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