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Legal panel: IDF doesn't follow own procedures regarding Palestinian civilian casualties

The Turkel Committee, appointed following the deadly raid on the Mavi Marmara, determined that the IDF didn’t follow its own procedures in cases of Palestinian civilian casualties. However, the committee also believes that the IDF should continue to be the one probing its own actions.

The Turkel Committee, which was appointed to examine the events surrounding the deadly IDF raid on the Mavi Marmara in 2010 has submitted the second part of its report yesterday. The committee declared that the IDF is capable of investigating alleged crimes perpetrated by soldiers (and policemen under army supervision), but had some major recommendations regarding the army’s procedures.

The bottom line shouldn’t surprise anyone. The Turkel Committee, consisting of conservative Israeli scholars and international observers approved by Israel for their pro-Israeli positions, was an U.S.-Israeli initiative designed to provide a pretext for Israel’s refusal to cooperate with international bodies seeking to probe the raid that left eight Turkish citizens and one American citizen dead. As Roi Maor pointed out after the first part of the report was published, the committee was appointed to establish that fact that the Israeli siege on Gaza and the Maramara raid (an attack on an unarmed vessel in international water) were both indeed legal. And surprise! The report it filed did support this claim (See more here, here, here, here, here).

The second part of the report, submitted yesterday, barely made the news, despite including some interesting articles. With the Marmara affair all but forgotten, it seems that the committee felt free to voice a bit more criticism towards the army’s internal investigation procedures.

Among other things, the committee:

– States that the army’s procedures regarding reports in the case of civilian Palestinian casualties – which the army promised the Supreme Court to follow in 2005 – are simply not implemented. The committee therefore recommends sanctions against commanders who fail to report on civilian casualties.

– Recommends legislation that will deal with war crimes which are not mentioned in the Israeli legal system.

– Recommends that such legislation would establish criminal responsibility on civilian position holders as well, and not just the army’s chain of command.

– Recommends that the military prosecutor will have a set period of time, consisting of several weeks, to determine whether to open criminal investigation regarding the conduct of IDF soldiers and policemen operating under the military’s command (such decision currently take months and years, rendering the entire process meaningless).

– Recommends that internal security interrogations will be taped, documented and supervised.

These are extremely severe recommendations, and in my opinion they support the mounting evidence regarding lack of accountability or even proper investigation regarding crimes against civilians perpetrated by IDF soldiers (see also Amos Harel’s article in Haaretz, “The Turkel committee: A no-confidence vote in the IDF’s internal investigations”). However, the committee’s recommendation have no legal binding status, and their fulfillment depends on the good will of the political system, and later on, Israeli bureaucracy. During a time when Israel finds it harder and harder to justify and defend the military control over millions of Palestinians, it is very unlikely that it will conduct vigorous procedures that would expose criminal acts which are conducted as part of this control.

More important, the Turkel report, and the entire legal debate in Israel for that matter, is operating under an unspoken paradox – one which sees the occupation both as an internal and an external issue. Internal, in the sense that these are matters which occur under Israeli sovereignty, so that the international community should have no say in them; and “external”, in the sense that it views the Palestinians as Israel’s enemy in an armed conflict, and therefore not deserving the full protections of the law. Theoretically, the army is the same body which is fighting the Palestinians but is also assigned to protect them and ensure their well-being, as the sovereign in the occupied territories. In practice, the army internalizes the former function and ignores the latter, leaving the Palestinians with no authority over their daily protection (hence the justification for legal intervention on their behalf – if such was ever to take place).

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    1. It seems as though the report concludes that the implicit constitution of Israel, which has elevated the IDF into a coequal branch in outcomes, is wanting as a matter of justice. That “the army’s procedures regarding reports in the case of civilian Palestinian casualties – which the army promised the Supreme Court to follow in 2005 – are simply not implemented” shows once again that the IDF has effectively asserted immunity from other branches of the constitution on matters it deems “essential security.” One does not promise the highest court in the land that one will do something; one does it. Until the Court asserts and acheives judicial supremacy, there is no reason to believe new legislation will change action on the ground. At present, civilian Palestinian deaths are less important than the (over) protection of young IDF soldiers. This zero sum dichotomy is false; but security has been linked to the well being of patriotic draftees in such a way that violations of command and control directives are overlooked as island cases. This ultimately harms Israel at home and abroad, weakening the rule of law and allowing the killing and maiming of civilians without consequence.

      Reply to Comment
      • Elisabeth

        That’s right. You keep coming accross cases where decisions of the high court are simply ignored by the army (regarding targeted assasinations, rerouting the fence, vacating protest villages and so on). You would expect those responsible in the IDF to be jailed, fired, whatever, but nothing ever happens. It seems the Israeli high court is regarded as a joke by the army and large parts of society. Its main function may be to give the impression to the outside world that Israel follows the rule of law.

        Reply to Comment
        • I think it is worse than that, Elisabeth. I see a (implicit) constitutional shift away from the rule of law with the High Court effectively abrogating judicial review. The occupation has accelerated this, but there are cases within Israel proper where the government has ignored High Court directives. The Court seems unwilling or unable to enforce its decisions in some areas, especially the occupation and Arab Israeli citizen cases. It may have even lead to the close vote in the Citizenship Law case (decided by one vote) which effectively prevents Arab Israelis from bringing West Bank spouces into their homes. Israeli law is, in my view, in great danger.

          Reply to Comment