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Home Articles posted by Alon Margalit

Some Observations on the Turkel Report and the Investigation of Wrongdoing by the Armed Forces

Published on March 13, 2013        Author: 

Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, SOAS, University of London.

The long awaited Turkel report which examines Israel’s practice of investigating allegations of wrongdoing during armed conflict by its security personnel was published in early February 2013.  The report (see original in Hebrew and an English translation) was issued by an expert Commission established by the Israeli government in June 2010 and headed by Jacob Turkel, a former judge of the Israeli Supreme Court.  The Turkel Commission produced an earlier report in January 2011 which dealt with legal aspects of the Israeli blockade of the Gaza Strip and the interception of the Gaza-bound flotilla in May 2010 (this report was discussed here).  The second and final report of the Commission considers whether the mechanisms employed by Israel to investigate complaints regarding violations of the Laws of Armed Conflict (LOAC) attributed to members of its armed forces conform with the state’s obligations under international law.

To a large extent, the Turkel report is a response to the report of the UN Human Rights Council Fact-Finding Mission (the Goldstone Report) that was published in September 2009 and looked into alleged violations of international humanitarian law and human rights law during the December 2008-January 2009 Gaza Conflict (codenamed by Israel as ‘Operation Cast Lead’).  The Goldstone Report, which was later endorsed by the UN General Assembly, found “major structural flaws” in the Israeli military justice system responsible for handling complaints of serious wrongdoing by Israeli soldiers, and further concluded that Israel’s investigation policies do not meet the required international standards.  The main concerns were the use of internal military investigations by the chain of command to examine complaints, as well as the dual role of the Israeli Military Advocate General (MAG).  The Fact-finding Mission was troubled that the MAG’s responsibility to provide legal advice to the military authorities creates a potential conflict of interest with the parallel responsibility to order the investigation and prosecution of unlawful actions which at times might be based on the MAG’S own legal advice.

Those issues were addressed by the Turkel Commission.  Four Israeli members and two non-Israeli observers prepared the report for two years.  They examined evidence provided by Israeli officials, academics and human rights NGOs, and further consulted several international law experts.  The comprehensive report which analyses the duty to investigate under LOAC and the relevant Israeli practice includes a significant comparative element.  To use the Commission’s own words, the report stands out in the sense that “is the result of considerable efforts to derive the main principles of international law from sources that are often vague and unclear”.  It is therefore a valuable document which might have a meaningful impact beyond the concrete Israeli context. Read the rest of this entry…

 

The Bin Laden Killing: Clarifying the Normative Framework(s) Governing the ‘War on Terror’?

Published on October 12, 2011        Author: 

Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies (SOAS), University of London. The author wishes to thank the editors of EJIL:Talk! for their helpful comments on an earlier draft.

It has been almost six months since Osama Bin Laden was killed in Pakistan by a US commando team.  It is now worth reviewing some of the legal questions arising from the incident as the heat of the moment has passed.  The May 2011 killing of Bin Laden marked an operational apex in the US ‘War on Terror’ and was favourably received by the overwhelming majority of States.  Shortly after the raid on a residential compound in Abbottabad was concluded, and before its exact details were disclosed, a statement by the President of the Security Council welcomed “the news on 1 May 2011 that Osama Bin Laden will never again be able to perpetrate such acts of terrorism” and urged all States to intensify their fight against terrorism in compliance with international law.  UN Secretary-General Ban Ki-moon declared that “justice has been done to such a mastermind of international terrorism”.

Similar statements were made by the EU which described the American operation as “a major achievement”.  Afghan President Karzai said Bin Laden “had paid for his actions”, and Saudi Arabia, the national State of Bin Laden, expressed the hope that his killing “would be a step toward supporting international efforts aimed at fighting terrorism“.  In Pakistan, where the operation took place presumably without its consent, President Zardari chose to stress the “satisfaction that the source of the greatest evil of the new millennium has been silenced, and his victims given justice.”

If the question of where this operation stood in terms of international law were to be answered according to States’ responses, the killing of Bin Laden apparently did not raise any legal concerns.  States hailed the American operation, did not question its legality, and thus signalled that they saw no violation of international law.  Within this almost universal favourable discourse, two independent experts of the UN Human Rights Council, the Special Rapporteurs on summary executions and on human rights and counter-terrorism, issued an exceptional statement.  They urged the US to disclose the facts supporting the use of deadly force against Bin Laden in order “to allow an assessment in terms of international human rights law standards”.  They emphasised that “the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment”.

This statement reflected – contrary to what seemed to be the consensus shared by States – the ‘legal buzz’ among international lawyers, triggered by the American operation and concerned with its legality: was the US allowed to plan and execute a shoot-to-kill operation, or were its troops obliged to try and capture Bin Laden and give him an opportunity to surrender before turning to lethal force?  A significant discussion on this question emerged immediately after the incident, debating the applicable law and whether the operation had adhered to the required standards.  Different, at times opposite, views were expressed including on EJIL:Talk!, here and here.

Read the rest of this entry…