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

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.

In accordance with its terms of reference, the report concludes that the Israeli practice of investigating alleged wrongdoing during armed conflict generally complies with the requirements of international law.  It however recommends to introduce a number of changes in the Israeli system, namely, institutional ones.  For example, in order to strengthen the independence of the Israeli MAG who decides in what circumstances a criminal investigation shall be opened and a prosecution is to be held, the report suggested several amendments to the MAG’s appointment procedures.  It was further proposed to strengthen the status and independence of the Chief Military Prosecutor vis-à-vis the MAG to mitigate any appearance of partiality due to the MAG’s dual role as the legal advisor to the military authorities and the head of the military prosecution system.  The report also advised to set a time-frame for a decision to be made regarding the opening of an investigation and the initiation of disciplinary or criminal proceedings against suspected soldiers.  The civilian oversight of military investigations was also considered.  The Commission highlighted the need to formalise a procedure that will enable complainants to challenge decisions taken by the MAG in front of the Israeli Attorney General, as well as to establish a new a unit in the Ministry of Justice that will specialise in LOAC.

The Turkel report dealt with the investigation of LOAC violations as a whole, however the focus was the investigation of fatalities that have occurred during armed conflict.  The main difficulty encountered by the Commission was the need to determine in what circumstances a duty to investigate arises.  Clearly, under LOAC, not every death during armed conflict indicates a legal breach as deaths of combatants and civilians who take a direct part in hostilities, as well as civilian deaths which fall within proportionate collateral damage, are lawful.  Civilian casualties that are the result of erroneous attacks normally do not trigger criminal responsibility as well.  The report clarified that the duty to open a criminal investigation arises when there is a reasonable suspicion or a credible accusation that a war crime, including a grave breach of the Geneva Conventions, has been committed.  Such an investigation is subject to the principles of independence, impartiality, effectiveness, thoroughness and promptness.  It can be carried out by a military body according to these principles and as long as it is separate from the chain of command.  Although there is no requirement for a transparent investigation under LOAC, as it may involve sensitive matters of national security, the Commission found that complying with this principle is ‘desirable’ and it seemed to focus on victims’ right to receive information on criminal proceedings when they are held against soldiers, and on the accurate and full documentation of investigative actions and decisions taken in a specific case.  More generally, the Commission stated that the scope of these principles and the manner they will be implemented are determined according to the circumstances of an armed conflict, and thus it probably referred to the practical constraints that hostilities entail and may adversely affect the quality of an investigation once opened.

Other LOAC violations – those which do not reach the threshold of a war crime – need only to be ‘examined’; in other words, there is no requirement for a criminal investigation.  This is also the case when a complaint is not sufficiently credible, or that the information received is only partial or circumstantial.  In these cases, a fact-finding assessment should be conducted in order to clarify whether there is a need to investigate.  The Commission added that this type of assessment also applies to exceptional or unexpected events, such as civilian casualties that were not anticipated when the attack was planned, and which do not give rise to a reasonable suspicion of a war crime.

In light of the Commission’s analysis, it is noteworthy that the lack of foresight of civilian loss in a certain attack indeed negates the mental element which is an integral part of criminal responsibility, and thus a criminal investigation is not required in those incidents under international law.  Similarly, there is no duty to criminally investigate an erroneous attack where, for instance, civilians were hurt after they were mistakenly identified as combatants.  It is also important to notice that in certain attacks that were directed at a military objective, the collateral damage may be expected in advance, pass the proportionality test given the anticipated military advantage, and could not have been avoided despite all feasible precautions taken.  In these instances, even a retroactive factual assessment – which does not amount to a criminal investigation – is not a legal obligation.

Two additional recommendations in the Turkel report with respect to command investigations and to classification issues deserve close attention.  Perhaps the most far-reaching recommendation concerns the Israeli practice of using command investigations as an initial fact-finding procedure which helps to determine whether a specific incident justifies the opening of a criminal investigation.  The Commission concluded that the fact-finding assessment mentioned earlier cannot be carried out by commanders due to the risk of harming a future criminal investigation.  It further advised that this initial procedure will be conducted promptly by a special team which “shall be comprised of experts in the theatre of military operations, international law, and investigations”.  Yet, it is unclear how this arrangement differs, on a substantive level, from sending professional investigators of the military police or its equivalent to do the job notwithstanding there is no prima facie criminal wrongdoing.

Further, this recommendation seems to have a questionable ground in light of the comparative survey in the report that examined the investigation practice and mechanisms in a number of western democratic states.  The Commission in fact found that in the absence of suspected criminality, the common practice is that such an initial fact-finding procedure is carried out by the chain of command.

It is in evidence that in subjecting the Israeli system to a higher standard, the Commission gave weight to the fact that Israel is an occupying power in the occupied Palestinian territory (oPt) and to the special context of active hostilities which are taking place in occupied territory.  Similar to the approach taken by the Israeli Supreme Court in the Targeted Killings case discussing Israel’s  operations in the oPt, and by the European Court of Human Rights in Al-Skeini discussing the UK operations in occupied South East Iraq, the Commission took into account that the belligerent state, while bound by LOAC rules when involved in hostilities, also bears obligations vis-à-vis the local population under the law of occupation and human rights law.  This may not only affect the rules regulating the use of force but also those norms which are relevant to investigations, thus demanding a higher standard of professionalism and independence when looking into deaths of protected persons caused by the Occupant’s security forces.

In contrast, it seems that in the absence of effective control during an international armed conflict, there is a more restricted duty to investigate casualties caused by non-criminal behaviour (under LOAC) given the quite limited scope of human rights law-based obligations of a belligerent state vis-à-vis enemy nationals.  Similarly, one might wonder whether sending a special team of experts to perform an initial factual assessment in various incidents is practicable when hostilities in occupied territory reach a high-intensity threshold, namely when the number of fatalities had risen and when the responsible state does not able to maintain a stable effective control in the territory.  It seems that the recommendation of a fact-finding procedure by an expert team in each and every case would be impossible to meet, and that in these circumstances, the prompt report and initial fact-finding will remain the responsibility of on-site commanders.  Finally – and significantly – this recommendation appears to be inconsistent with the Israeli Supreme Court ruling in the B’tselem case (2011) where the Court upheld the existing investigation policy and stated that in the absence of suspicion of criminal wrongdoing, command investigations are the appropriate mechanism to examine civilian casualties during armed conflict.  It would be interesting to see whether the Israeli government will adopt this recommendation, and in case it will, to what extent it will be followed in practice during operations.

Another recommendation that merits critical comment relates to classification, meaning the determination of the applicable normative framework and its implication on the duty to investigate.  The Turkel Commission noted, correctly, that on many occasions “the question of the criminality of an act depends upon the legal regime that governs the specific activity during armed conflict, and especially whether an operation is governed by the law regulating the conduct of hostilities (e.g., combat operations), or law-enforcement norms (e.g., policing operations)”.  It further clarified that when a serious injury or death is caused to an individual in the context of law-enforcement activities, there is a duty to investigate (usually through a criminal investigation), and that in occupied territory, and especially in a prolonged occupation, “the default position is that the norms regulating the use of force are those of law-enforcement”.  In accordance with these important statements, the Commission recommended that initial reports on fatalities should be classified according to the legal framework of each incident, namely whether the incident occurred during combat operations or whether it is subject to a law-enforcement regime.

Nonetheless, whilst in relation to Israel’s use of command investigations the Commission made a bold statement, the discussion of classification issues is lacking as important information that was presented to the Commission on this matter was not properly dealt with in the final report.  During the hearings, the Israeli MAG testified that since 2010 the main activity of the security forces in the West Bank is law-enforcement-related, while the classification in relation to the Gaza Strip remains as one of an armed conflict.  Israel’s official position with respect to investigations is that between September 2000, when violence broke out in the oPt, and April 2011, when this position was updated, the entire oPt was under an armed conflict paradigm and Israeli operations – as well as its investigation policies – were governed by LOAC.  This broad classification was effectively affirmed in 2011 by the Israeli Court in the B’tselem case.

It is not contested that high-intensity hostilities were taking place in the oPt in some stages during this long period and were indeed governed by LOAC.  However during other stages it is doubtful whether the level of violence reached the intensity threshold to justify the application of LOAC norms.  In fact, this question already arose at the early stage of the Second Intifada when a Fact-finding Committee which was established by Israelis and Palestinians to examine the events and how to prevent their recurrence noted that the classification of the confrontations as an armed conflict is too broad and “does not adequately describe the variety of incidents reported since late September 2000”.  The Committee was concerned that this classification had enabled Israel to refrain from investigating complaints regarding deaths that have occurred in what seemed as law-enforcement situations.

In a similar manner, a substantial effort was made, especially by human rights NGOs, to persuade the Turkel Commission that the level of violence in the West Bank had decreased dramatically in recent years, that LOAC was no longer applicable there, and that the fatalities caused by Israeli personnel must have led to the opening of criminal investigations.  Unfortunately, these relevant and serious arguments – about how the law is being implemented in practice – were not addressed in the Turkel report.