Israel’s Idea of an “Independent” Inquiry into the Attack on the Flotilla

Israel’s Idea of an “Independent” Inquiry into the Attack on the Flotilla

Someone should tell Mr. Netanyahu that he is supposed to wait until after the inquiry to announce its predetermined findings:

Prime Minister Benjamin Netanyahu said at the start of Monday’s cabinet meeting that the main goal of the Gaza flotilla probe is to prove to the world that the Israel Navy operation on the Gaza-bound aid ship was appropriate and met international standards.

“The government decision will make it clear to the world that Israel is acting legally, responsibly, and with complete transparency,” said Netanyahu.

Kind of puts Israel’s desperate hand-wringing about the Goldstone Report into perspective, doesn’t it?

Topics
International Criminal Law, International Human Rights Law, Middle East
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Ali
Ali

I agree with you Kevin.

Ellis Telford
Ellis Telford

Sort of like AG Holder’s guarantee that KSM will be found guilty.  This is what comes of trying to satisfy those parts of the populace that demand the form of a judicial-style proceeding in order to believe that “the rule of law” is still being respected.

dov jacobs

I’m the first to argue that an independent inquiry is possible in Israel, but this is just stupid…
On a related note, let’s hope it doesn’t take as long as the inquiry into Bloody Sunday, David Cameron having publicly said sorry today (here’s the BBC story), 38 years after the facts!

humblelawstudent
humblelawstudent

Seriously?  Omit the editorializing by Haaretz in the first paragraph and let Netanyahu’s quote stand on its own. 

What is he supposed to say?  “I’m appointing a commission because we f-ed up”?  Is Netanyahu not allowed to say that he thinks Israel acted lawfully and therefore an independent commission will reach that same conclusion?

When you find an op-ed signed by a member of the commission where he or she states that Israel acted lawfully (before seeing the relevant evidence), a la Christine Chinkin, then you may have a point. 

Benjamin Davis
Benjamin Davis

Good point humblelawstudent.  It give him cover for appointing the commission.  Still think the ICJ SS Lotus Redux approach after the commission would be a wise thing for Turkey and Israel to do.  I know the shaping of the question is going to be tough, but I think it can be done in a way that focuses the ICJ in the joint submission.  No doubt people think I am too much of an optimist.  But, there you go.  Professor Itzchak Kornfeld of Hebrew University has an oped over at Jurist on this also (full disclosure Itzchack accepted to be part of my team for the ASIL Executive Council meeting in 2006 on the ASIL Centennial Resolution on the Laws of War and Detainee Treatment for which I will forever be indebted to him) .
Best,
Ben

IR Student
IR Student

Have to agree with HLS. Netanyahu is a politician trying to score political points about the commission. Unless he’s found to be involved with the actual investigation there’s no harm here. Obama administration officials made similar remarks about KSM; Bush made similar remakrs about Saddam. I’m sure if you look through history of these sorts of investigations, you’ll find plenty of quotes of high-level government officials taking a side on what the outcome an investigation will yield.

I sort of hold these political stunts in the same vein about how Arab politicians make anti-Israel (and in some cases anti-semetic) statements but don’t change their actual policies (aka, just Israel-bashing to shore up popular support). These are the sort of statements you could go without hearing, but are ultimately harmless.

Or to frame the issue another way, should we interpret your flippant post to mean you have predetermined the legitimacy of the investigation before it has taken off?

Elliott
Elliott

Isn’t it a bigger story that the UN itself (a supposedly independent and unbiased entity) condemned Israel’s actions in the flotilla incident, and THEN called for an investigation into what happened?  Condemn, then get the facts? Seriously, Netanyahu is supposed to believe Israel acted properly and by all accounts he has a ton of facts at his disposal that very few people have access to. But the UN? Where is the blog condemning the UN for its inane logic here? Furthermore, since when is Israel incapable of investigating itself? The Israeli government has investigateds and prosecuteds members of its armed forces and members of its government many times. (Olmert, Shalom, Lieberman, various soldiers accused of crimes or violations of the rules, etc…)  But suddenly it can’t put together an independent commission with international components?  And when was the last time another country (besides Israel) was not trusted to investigate itself? Only Israel must submit to ‘international independent inquiries’? The double standards involved in this incident, as well as nearly any incident involving Israel, is simply shocking. Wake up people. Either hold the rest of the world to the same standards that you hold Israel to, or let Israel adhere to the ones… Read more »

Elliott
Elliott

From bloomberg.com:

“The panel will be headed by former Israeli supreme court judge Jacob Turkel. The two foreign observers are Nobel Peace Prize winner and Northern Ireland politician David Trimble, and Ken Watkin, former Judge Advocate General of Canada’s armed forces. ”

Seems to be a good mix of people. But I’ll bet the detractors will surely reply that the fix is already in.

http://www.bloomberg.com/apps/news?pid=20601087&sid=aYhR6OAwD6fY&pos=8

Elizabeth
Elizabeth

Just to point out, the Presidential Statement from the UN Security Council did not call for an “independent” investigation (the US managed to change the language to allow an internal Israeli investigation).

Here is the language in the Presidential Statement:

“The Security Council takes note of the statement of the UN Secretary- General on the need to have a full investigation into the matter and it calls for a prompt, impartial, credible and transparent investigation conforming to international standards.”

Elliott
Elliott

Well, it was the UN Human Rights Council that called for “an independent international fact-finding mission to investigate violations of international law, including international humanitarian aid and human rights law”.

Anonsters
Anonsters

If you need an example of how to run a thorough investigation that is recognized as creditable and thorough, see the Saville Inquiry report on Bloody Sunday that was released today. Also see David Cameron’s statement before the House of Commons about the report. How many of those remarks about examining the past apply to us, too?

Elliott
Elliott

Sorry Kevin, but I have to call you out for the contents of your blog post. You criticize Netanyahu for allegedly commenting on ‘predetermined findings’ of this commission, and quoting him as saying: “’The government decision will make it clear to the world that Israel is acting legally, responsibly, and with complete transparency,’ said Netanyahu.” But clearly, Netanyahu is only referring to the government decision to conduct the inquiry into the flotilla raid. He is NOT commenting on any decision that the committee may or may not arrive at once the task is completed.  In other words, you’ve attributed to Netanyahu a quote about some ‘predetermined findings’, when in fact he was not commenting on any findings at all, but merely commenting on the government’s decision to try and get at the facts of the raid. And of that decision to do so, he said it would make clear to the world that Israel is acting “legally, responsibly, and with complete transparency.”  (This correct interpretation of his quote is even more obvious when you consider that Netanyahu wouldn’t attribute ‘transparency’ to the acts of the Navy commandos or the rest of the raid’s details. Transparency quite naturally refers to the… Read more »

Ali
Ali

The debate, when it comes to Israel, often times, i noticed, is all about Israel, and from its perspective, not the actions of Israel. Israel killed nine people, some on here think that’s not a crime and those “thugs” deserve to die. Really, what kind of logic is this?
And that was not legitimate self defense either.
Those people on those ships were not going to Tel-Aviv nor were they armed or had any weapons. Moreover the ships were not an Armada that threatened Haifa.  (Unless you consider sticks as lethal weapons).
I see no outrage, non what so ever over the killing of an American citizen by Israel! Do we allow Israel to kill American citizens, but we oppose Obama for authorizing the CIA to kill them?
Some people in this country seem to be putting Israel over and above every consideration and certainly better than all of us mortal Americans!
 

Anonsters
Anonsters

For those interested in the Bloody Sunday Inquiry:

http://report.bloody-sunday-inquiry.org/

Kevin Jon Heller

I certainly appreciate the fervor with which everyone is trying to spin Netanyahu’s unconscionable statement, but good luck explaining why he would say the government decision will prove that Israel is acting “legally” if he was only referring to the decision to create the commission.

Kevin Jon Heller

“The first observer will be William David Trimble, a Northern Irish Nobel Peace Prize laureate.
Trimble joined the “Friends of Israel” initiative launched in Paris some two weeks ago, in which Israel’s former ambassador to the United Nations, Dore Gold, was also involved. Gold is considered a close associate of Prime Minister Benjamin Netanyahu.”

I can only imagine what Israel’s defenders would say if a Palestinian inquiry into rocket attacks appointed an international observer who had recently joined a “Friends of Palestine” group that included a close associate of the leader of Hamas!  But, of course, the beauty of being an uncritical apologist for Israel is that you never have to hold Israel to the same standards that are applied to everyone else.

(The group also includes John Bolton.  No additional commentary needed!)

Elliott
Elliott

Kevin, don’t you think if Netanyahu were speaking of the outcome of any commission, he would have said Israel “acted legally” rather than “acting legally”? It takes a very narrow and predetermined view of his statement to conclude he was talking about the results of the investigation, and not the mere creation of it. 

Further, the subject of his sentence is “the government decision”.  It is the decision to set up the commission that will show that Israel is acting (not acted…) legally, and with transparency. This is in reaction to the demands for an investigation to take place.  Netanyahu’s command of the English language is not such that it could not said things were lost in translation here. Criticize Israel’s actions in the raid if you want, but this statement of Netanyahu’s does not do what you claim it does. Not by a longshot.

Elliott
Elliott

To summarize, if he were referring to any forthcoming results he would have said something along the lines of “the results of this commission of inquiry will show that Israel acted legally in the raid on the flotilla…”, or “this commission will no doubt conclude that Israel followed international law in boarding the Mavi Marmara….”

Instead, he is clearly referring to the establishment of the commission as the ‘act’ that will prove to the world that Israel is conducting itself with transparency, responsibly, and legally.  Any other reading really is a stretch.

Adam
Adam

Israel believes they acted within the parameters of the law and those opposed to Israel believe they acted outside of what the law allows. And this is clear from statements coming from those who typically attack Israeli actions including the UN and its employees and organs. The call by the UN and others, like Turkey, for an “independent” investigation has been in a manner no different than Israel’s call. Turkey, that paragon of human rights and international law defending the Kurds and Armenians from unlawful attacks, and the UN, the paragon of virtue and lawfulness that doesn’t seem to think there’s anything wrong with corruption and peacekeepers who either abuse civilians being protected or scamper off at any sign of violations of armistice lines, both believe in the form of the particular individuals speaking on their behalves that Israel broke the law. Was Israel? Was Israel wrong? Frankly, if I was Israel, given the hypocrisy of countries like Turkey and the UN calling for an independent investigation into violations of the law and the manner in which this country typically is treated, I wouldn’t care one whit. Really, if the world thinks countries like Libya, Syria or Iran belong on… Read more »

Kevin Jon Heller

Elliot,

Hmm, last I checked the blockade is still in force.  As the Haaretz story notes, the commission’s brief includes assessing the legality of the blockade.  Hence the present tense. 

Kevin Jon Heller

As for Adam’s point, there is, of course, no such thing as the UN Human Rights Commission.  There is a Human Rights Committee and a Human Rights Council.

Oh, and by the way, Libya, Syria, and Iran are members of neither.

Elliott
Elliott

Wow Kevin. With every spin on Netanyahu’s statement your post loses more and more credibility. Believe what you must, but any fair reading of his statement would conclude that he was referring to the setting up of the commission (which was the government decision) as the act that would show the int’l community that Israel would follow their demands for a legal inquiry, as well as provide transparency.  It takes a very twisted reading of his words to conclude that he was predicting the outcome of the inquiry, and yet somehow still speaking in the present tense (“is acting legally”).  But…it’s your blog.  Misinterpret away.  I for one will be taking your further posts with a giant grain of salt, if you can’t simply acknowledge that you misread his original quote (an easy mistake by the way, given the context). I mean, all you have to do is insert the object of the government decision in order to read the sentence in full context, and it could not be any clearer:  “The government decision [to set up the commission of inquiry] will make it clear to the world that Israel is acting legally, responsibly and with complete transparency…” Feel free… Read more »

Elliott
Elliott

As for Adam’s point, if he mistook those countries as members, a quick reading of the current crop of human rights stalwarts that sit on those bodies will reaffirm his point nonetheless.

Kevin Jon Heller

Elliott,

Obviously my exegetical skills pale in comparison to yours, but by all means show me where the international community has called for Israel to set up a “legal” inquiry.  I have no idea what that would even — but again, I’m just a simple law professor who is incapable of parsing ordinary English.

Adam
Adam

With apologies, Kevin, what I should have stated in the last paragraph of my post is that when members of the Human Rights Council, along with the UN Secretary General and UNHCR called for a “probe” of events related to the Israeli Navy stopping the flotilla, along with countries like Syria that is reported by the HRC as having said “it was important that a fact-finding mission be deployed to investigate the unnecessary use of Israeli force against peaceful humanitarian activists”. Furthermore, Ms. Pillay is also reported as having stated that this committee she’s appointed to examine/monitor legal actions by Israeli and Palestinian authorities in connection with the conflict in Gaza will “benefit” the region, allowing countries in the area to “draw lessons from the suffering of the Palestinian people.” The most laughable part of all this is where the HRC release continues “This should improve democracy in the region.” Yes, I was wrong by referring to the Human Rights Council as the Human Rights Commission. The problem I have is that some of these countries, like Egypt, the current HRC VP, are insufficently respectful of women and religious minorities such as Jews and Christians, that their own call for… Read more »

Adam
Adam

Kevin… I am disappointed in you. I thought this site was a little less biased than other sites and really aimed to get at truth and facts. Instead, you are playing with semantics and word play to make a point that can not really be debated with any facts in any way and just incites people to become angry and makes assertions based on text taken out of context and w/o trying to find out more information.  I mean as someone mentioned, the man is not american and his words can get lost in translation. Here is my question: Why in the world, would any leader give any hint to the fact that they have knowledge of a predetermined decision by such an inquiry? Would that make any sense? Think about that. You can have your conspiracy theories, but would you mind presenting us with information that is actually worth reading rather than non-sense that one might find on the yahoo message boards, posted by some angry ranging dimwit. Seriously man, make a point that is worth discussing. This is so obviously taken out of context. If this is the way you teach your students to interpret words, it is… Read more »

Fels
Fels

Since we have a Clinton-esque debate over the use of “is” it’s worth pointing out that different news sources translate his words differently, some using “acts”, “operates”, etc., changing the possible meaning. If you speak Hebrew have a go at it:”החלטת הממשלה תבהיר לעולם שמדינת ישראל פועלת כחוק, באחריות ובשקיפות מלאה”, אמר נתניהו היום

What is clear is Netanyahu’s statement from that same conference that “I am convinced that the Commission’s uncovering of the facts will prove that the goals and actions of the State of Israel and the IDF were appropriate defensive actions in accordance with the highest international standards. “ He’s probably right as the committee:
-cannot interview soldiers
-has neutral observers with no votes
-can block neutral observers and public from seeing anything ruled sensitive intelligence or harmful to foreign relations
– must rely on pre-made internal military investigations
-cannot have its results used in any legal proceeding (per the Israeli AG)
Consider me skeptical and unappeased.

David Schraub

I am mildly surprised so much of this “debate” focuses on whether Bibi was talking about the decision to create the panel, or the forthcoming decision of the panel itself. Even if it is the latter, it is still rather standard boilerplate — folks under investigation often make statements like “we are confident that a full airing of the issues will demonstrate no wrongdoing/vindicate our position, and look forward to the panel’s conclusion to that effect, blah blah blah.”

That’s what one says when one genuinely believes that the facts and law are on one’s side. It’s also what one says even if one doesn’t believe that — it’s kind of just what everybody (or their lawyer) says prior to the start of an investigation. I suppose one would also say it knowing the fix is in, but it’s hardly probative evidence to that effect, and I’m a bit surprised at KJH’s attempt at playing stretch armstrong here.

Fels
Fels

True, it is the boilerplate denial of guilt and would have been completely expected immediately following the raid when information was confused and scarce, a leader reaffirming his faith in his forces. But after the carefully orchestrated media blitz, the IDF’s hysterical accusations of terror links and other since retracted statements, the quickly shifting official narrative, it’s easy to cynically interpret Netanyahu’s words as a prediction (or at least make a snarky joke about it). The water is far murkier with the emergence of Iara Lee’s footage and the all important Turkish autopsies: if the Prime Minister, after learning of 5 foreign nationals shot in the back of the head at point blank range, can keep his faith that these resulted from the IDF’s “appropriate defensive actions” (quote from the same conference) I will be fascinated to hear his perspective.

Aeyal Gross

Israeli law has a procedure for independence committees of inquiry, who are appointed by the president of the supreme court, not the government (so as to prevent the government to appoint people whom it finds convenient), and which has plenary investigative powers. This law was not utilized here (unlike in the Kahn commissoin on Sabara and Shatila) etc. Had the government really wanted an independent poweful inquiry it would have asked the president of the Sup. Ct. to appoint such a commission according to the law in question. It didn’t.

Aeyal Gross

ps the humble law student should be so humble as to realize in the same letter Chinkin also said Hamas acted unlawfully, and this was said even more forcefully in a way – people seem to forget that, so there was no bias involved (even if other problems) – as I addrssed in detail here:
http://coteret.com/2009/12/14/killing-the-messenger-prof-aeyal-gross-on-the-assault-on-israeli-human-rights-groups/

JohnnieWalkerBlue
JohnnieWalkerBlue

Kevin, you deleted my post, again.  This just shows your lack of objectivity and intellectual dishonesty.

For the third time,
“The flotilla hooligans wanted to run a lawful blockade.  They got what they deserved.”

Yes, Kevin, no doubt you will delete this post at your earliest viewing.  And justice for all.

Fels
Fels

Dr. Gross brings up an excellent point that I had not been aware of. Israel aready has a process for creating powerful investigative commissions that passed into law back in the 60’s, the Commissions of Inquiry Law, authorizing and detailing the creation of committees to investigate controversial events. The proposed panel lacks the impartiality and investigative depth of the one outlined by the law. It’s most peculiar not to use the ready-made format that’s been employed in numerous political/military crises.
Thanks for your article link, Dr. G, very good.

Michael Hunziker
Michael Hunziker

There are genuine legal issues concerning the independence and suitability of the proposed inquiry.  It’s too bad that the discussion was framed as it was, and therefore took the unfortunate course that it did. But I think Dr. Gross’ and Fels’ point about the Commissions of Inquiry Law has the potential to get this discussion back on a more legal footing. Professor Heller’s implication that the findings of the inquiry are/were “predetermined” by the government is, I am sure, hyperbole intended to suggest that the inquiry as constituted is unequal to the task of fairly investigating the incident in question. It seems to me that there are any number of ways to make this point. One might argue that the panel’s composition raises a reasonable apprehension of bias.  Someone making this point will surely have to point to some substantive real or apparent conflict of interest of the kind that normally would disqualify a tribunal member in municipal law.  Obviously, the fact that they are Israelis does not raise a reasonable apprehension of bias anymore than, say, an inquiry conducted by a retired Supreme Court of Canada Judge investigating the failure of that country’s police and intelligence services to prevent… Read more »

Kevin Jon Heller

Ah, yes, there is nothing more intellectually honest than rationalizing the killing of civilians under an alcohol-based pseudonym…

Michael Hunziker
Michael Hunziker

Professor Heller:

To whom are you referring as having an “alcohol-based pseudonym”?  Because I can assure you that I am very real and raised some valid points.  I remain hopeful that someone will address them.

Fels
Fels

Mr. Hunziker, I’m always pleased to elaborate on my sometimes ignorant opinions, how kind of you to ask! The commission’s purpose (hopefully) is to uncover the truth, regardless of its political expedience. The committees outlined in the Commissions of Inquiry Law have been the investigative tool of choice for events of similar gravity, from the assassination of the Prime Minister (Shagmar Commission) to massacres (Kahan). The proposed panel is similar in many respects but lacks three critical components: a) unlimited investigative power, including search warrants and punishments for contempt b) members selected by the President of the Supreme Court, independent of the executive branch and the attending political agenda c) a body of rules governing all the petty details, ensuring smooth operation and minimizing confusion (it answers your above questions on mechanics) The most damning feature of Netanyahu’s hand picked panel is its investigative powers: it cannot speak to individual soldiers but must rely on internal IDF investigations (section 6.C). All of the relevant and crucial information will be provided by the organization whose conduct is under scrutiny and has denied any wrong doing*. The Prime Minister’s commission reserves the right to not publish information that “could cause substantial harm… Read more »

Brian
Brian

Whether the Israeli investigation follows the Commissions of Inquiry Law or not is largely an Israeli internal issue.  It raises the question of what triggers that law to be invoked, and you can be sure if it is called for by Israeli law, someone will make a submission to the Supreme Court to rule on that.  Anyone familiar with the Israeli Supreme Court will know that it is not shy to intervene against the wishes of the government where it sees fit.  That’s what happens in a democracy with an independent judiciary. It is largely a red herring though, as even if Fels and Professor Gross would accept an investigation under that law, it wouldn’t appease Turkey – or for that matter KJH who has made it clear that he doesn’t think any State should investigate itself. In Friday’s “The Australian” newspaper, there was a piece entitled “Where are the protests?” which went through a number of incidents of much greater magnitude than the flotilla incident, and asks the question about where the protesters were for them.  I would add to that question and ask “where are the requests for international inquiries?” In addition to those, and the Canadian incident that Michael… Read more »

Brian
Brian

BTW, anyone calling for an international inquiry into Turkey’s killing of a 15 year old Kurdish girl and injuring her mother and 2 year old brother today?   How about protests about the Kurds being denied their own State?

Fels
Fels

Brian,
As far as I can tell the Commissions of Inquiry Law is invoked at the Prime Minister’s discretion. Picking the investigation’s format certainly is an internal Israeli concern but let’s remember that the inquiry is largely a spectacle to appease the international community: the Israeli government and the IDF have voiced no doubts about what occurred. The structuring of the investigation supports the idea that this isn’t intended to be the “independent and credible” (DM Barak’s words) we are told to expect as the members are all executive appointees and the inquiry cannot speak to the commandos but must rely on the internal reports of a military that has already pronounced them innocent.
And yes, international concern is rarely logical or proportional but that’s not grounds for excusing or ignoring events that do catch its wandering gaze. If we both commit murders and I am prosecuted while you walk free justice has not been fully served, but that does not make either of us innocent.
If anything, I hope that investigations by international organizations will grow in magnitude, becoming the norm for suspected human rights violations and international disputes.

Brian
Brian

Where most cases aren’t investigated, a reasonable picture of “normal” action in conflict can’t be made on which to judge the cases that are investigated.  It’s not just about guilt or innocence, it’s about establishing relevant opinio juris on which to make the judgments.

Fels
Fels

War crimes and human rights violations are inherently not normal: states cannot be legally obligated to engage in collective punishment or genocide. If the contested action has a defensible legal theory then it’s the inquiry’s job to find out. Re-hashings of “we don’t prosecute/investigate all war crimes so we can’t fairly investigate this one” are just line-drawing fallacies in various guises.