2013 | Turkel Committee (second) report into Israel's Investigative procedures.
This report by the Turkel Committee analyses Israel’s mechanisms for examining and investigating alleged violations of humanitarian and human rights law when committed by Israeli military, police or security personnel. It is a document of great significance in which account is given of Israel's own understanding of it's legal obligation to investigate alleged human rights or humanitarian law violations in the occupied Palestinian territories. The report is referred to in numerous subsequent studies of Israel's military justice practices since publication and particularly in the wake of the conflict in Gaza in the summer of 2014 - "Operation Protective Edge."
The 464 page report undertakes a detailed study of humanitarian, human rights and criminal law provisions in order to determine when, how and by whom such an investigation must be made, in order to comply with international legal principles governing investigations. Investigations are integral to reparations in that they are an indispensable preliminary step to establishing the existence of and responsibility for any violations committed. For a victim whose case is not considered to warrant an investigation, other reparatory measures that should follow from establishing a violation, namely recognition, satisfaction or compensation, are unlikely to ensue. Many claims brought by Palestinian civilians to the Israeli military authorities have been frustrated by a decision of the military authorities not to investigate. (See our cases page in this section).
The Turkel Committee concludes that Israel's extensive use of its military justice system (rather than its civil court system) to carry out investigations into alleged violations of the rights of Palestinians in the occupied territories is not contrary to international law. The Committee noted that the Geneva Conventions did not preclude the possibility that military commanders would carry out investigations into military misconduct in situations of occupation and indeed even envisaged this scenario.
The authors maintain a distinction between 'law enforcement activities' on the one hand and 'the context of the conduct of hostilities' on the other, and conclude that the obligation to investigate the death or injury of a civilian is not the same in the two situations: “Unlike the law enforcement context, the death or injury of a civilian during the conduct of hostilities does not automatically give rise to a duty to investigate. However, a fact–finding assessment is required wherever there is a need to clarify the circumstances in order to establish whether there is a reasonable suspicion of an unlawful act (such as an attack resulting in significant unintended civilian casualties). This assessment may lead to a subsequent investigation. Conversely, where force causes any serious injury or death of an individual in the context of law enforcement activities there is an automatic duty to investigate. (See p.106 at para. 54).
The same distinction applies, according to the Committee, in the context of an occupation:
“The Commission’s approach is that when hostilities break out during an occupation, the laws regulating the conduct of hostilities set forth in international humanitarian law apply [in other words there is no automatic duty to investigate]. However, even during an armed conflict, human rights norms apply to actions that can be broadly characterized as law enforcement activities.” The difficulty of course – as the authors go on to point out – is that “separating the law enforcement role from the conduct of hostilities aspect of an insurgency is neither factually nor legally simple.” The power to decide which context applies generally lies in the hand of the occupying military force itself. Indeed Israel has strongly resisted the intervention of external committees of enquiry into its conduct inside the occupied Palestinian territories. (See the 2014 report of the UN's special rapporteur and the 2015 reports by the Human Rights Committee and the ICC's prosecutor on its preliminary examination in Palestine in this section). A decision that the alleged violation took place in a conflict zone or during hostilities removes the obligation to carry out a full investigation. (See the 2013 commentary by PCHR reporting on the response of the Military prosecutor to the 490 complaints submitted to it
The Turkel Report concludes that Israel is by and large complying with its international law obligations. However, it is very clear from the 18 recommendations made at the end of the report that neither Israel's legislative provisions nor its practices are fully adequate to addressing allegations of criminal conduct by Israel's military, police or other security agents in the occupied territories. In particular, the recommendations reveal that there is a consistent pattern of inadequate distance and independence between investigative bodies and those units identified as possible perpetrators of violations. The Committee's conclusions and recommendations are summarized on pages 424-430.
Click here for a critical analysis of the report by Adadah attourney Fatmeh El-Ajou. See also in this section the 2014 report by B'Tselem and the UN Human Rights Committee's 2015 report, bith if which refer to the Turkel Committee's findings.