Yesh Din submitted a legal position paper to the Turkel Commission, according to which international human rights law principles directly apply to the duty to investigate complaints of war crimes, especially in the context of operations performed by combatants in occupied territory. The Public Commission to Examine the Maritime Incident of May 31, 2010 (the Turkel Commission) was established in June 2010 and its was also granted the mandate to examine whether Israel’s response to complaints of war crimes by combatants, commanders and state officials meets standards of international law.
Yesh Din was invited to testify before the Turkel Commission due to its experience providing legal assistance and monitoring of investigations into offenses allegedly committed by security forces against Palestinians and their property. From 2007 and until its appearance before the Commission, Yesh Din assisted 200 Palestinian victims of offenses in 200 Military Police Criminal Investigations Division (MPCID) investigation files.
Yesh Din’s position paper, the Duty to Investigate, is a response to the Military Advocate General Corps (MAGC)’s second position paper submitted to the Turkel Commission, which addresses the compliance of the IDF’s examination mechanisms with Israel’s duties under international law.
As opposed to the MAGC’s position, Yesh Din holds that human rights laws are not suspended as a result of the state of warfare and thus the standards regarding the duty to investigate determined by international human rights law are not voluntary but rather binding. From Yesh Din’s experience, the State of Israel’s investigation mechanisms do not meet the standards established in international law, which requires an investigation be effective and impartial.
Yesh Din’s Legal Advisor, Attorney Michael Sfard, who appeared before the Commission, said that “When a Palestinian civilian is killed, we must open an immediate investigation out of respect for his life. Conducting an investigation is not tantamount to punishment; it should not harm the forces involved. Rather, the command inquiries which lead to acquittal cause extensive damage.”
The position paper also argued that the State of Israel should establish an independent apparatus capable of examining and investigating claims of violations of international law regarding actions and policies that the MAGC was part of. “We must seek the inner strength that will allow us to establish an extra-military apparatus that will ensure that the IDF and its advisors adhere to the rules of International Law.”
The position paper clearly reflects the fact that the IDF’s investigation and examination mechanisms do not comply with standards of international law. Yesh Din also presented several demands that the MAGC did not address or which Yesh Din believes it wrongly interpreted. These include:
- Remove investigations regarding military policies or practices from the hands of the Military Police and the Military Prosecution
- Ensure the existence of a professional, effective, swift and public investigation
- Separate between an operational debriefing and a criminal investigation
In February 2013, the Turkel Commission submitted its report, which recommended applying many changes to the manner in which the decision is made to open criminal investigations against IDF soldiers. Among other things, the Commission adopted Yesh Din’s position that the decision to open an investigation cannot depend on the outcomes of the operational debriefings.
The Commission also recommended to add “commander responsibility” to the existing legislation that applies to the political ranks and senior military command regarding offenses allegedly committed by their subordinates, assuming they didn’t take reasonable action to prevent the offenses from taking place or did not act to bring those responsible to justice after the fact.
The Commission report also reflects Yesh Din’s position on the need for defined and brief timeframes for deciding whether to open an investigation.