Israeli Inquiry Promises to be Pointless
Israel finally announced its internal inquiry into the flotilla affair. But don't hold your breath for any surprising results. 10:1 it supports the Israeli governments contention that all was legal and that the flotilla members where the aggressors - possibly trained terrorists.
This commission is not being established under Israel's Law of State Commissions of Inquiry - the format used by the Kahan commission or the Winograd commission, whose reports did have far reaching consequences. Had it been, such a format would have made the commission independent of the government, and with full powers of subpoena.
Instead this is an "Independent (sic) Public Commission", reporting to the government and with no power to subpoena anyone. Its report will be delivered to the government, the government will decide what to publish, and - if it desires - the government can disband or change the terms of reference of the inquiry at any time. (Though obviously that would be politically embarrassing, it gives the government a hammer should it feel it needs it.) The commission has been instructed to hold no public hearings or publish any material that "could jeopardize state security or foreign relations, or if it feels there is any other reason for not doing so."
The inquiry has no power of subpoena. It may only request that people appear. The government has made it clear in the terms of reference that it may not request that any members of the Israeli military, other than Chief of Staff Ashkenazi, to testify. It has also volunteered that Prime Minister Netanyahu and Defense Minister Barak will make themselves available if asked to appear. The commission may request military documents, but the military, at its sole discretion, will decide what to hand over. So much for ever definitively learning the truth about what happened on the boats to precipitate the killings.
The terms of reference limit the inquiry scope to two questions: Was the Israeli action legal under international law? And what was the motivation and behavior of the flotilla passengers? The first question is almost entirely one of legal theory, with very few disputed facts other than what precipitated the shooting on board the Mavi Marmama. Since Israeli soldiers will not be testifying and flotilla passengers are unlikely to appear at an Israeli internal inquiry, how will the panel ever learn the truth about that issue. As for the second question, again since they will not be getting evidence from anyone who was on the boats, how are they going to come to credible conclusions? From Israeli Mossad reports?
And the members of the panel, as well as the foreign observers, hardly inspire confidence or foretell any conclusion that might challenge the government or the military.
- The head of the inquiry is Jacob Turkel, 75 years old - former Israeli Supreme Court justice, born in Tel Aviv in 1935, an expert in civil law retired from the bench in 2005. Described by Israeli pundits as a conservative jurist, who also say he has little experience in inquiry commissions. He still sits on a military court appeals panel.
- Member, Shabtai Rosen, 93 years old - British-born professor of international law at Bar Ilan University near Tel Aviv. A former diplomat who served as Israel's deputy head of mission to the United Nations between 1967-71 and ambassador to the UN in Geneva 1971-74. An Israel Prize laureate for jurisprudence (1960), he won the Hague Prize for International Law in 2004.
- Member, Amos Horev, 86 years old - A retired major-general in the Israeli army and former president of the Haifa Technion, Israel Institute of Technology. Also formerly chief scientist of Israel's defense establishment and a leading proponent in Israeli industry.
Thus the average age of the panel is 85. It only expert in international law - the key question the panel is asked to rule on - is 93. The chair is a known legal conservative who still serves as a military judge. Two of the three members have strong personal ties to the military.
- Observer, David Trimble, (Northern Ireland) - The first minister of Northern Ireland. A Nobel Peace Prize laureate, he was instrumental in securing the Ulster power-sharing agreement - not as the honest broker (that was George Mitchell) but as the head of the Unionist Protestant side. Trimble recently helped found the "Friends of Israel" initiative launched in Paris some two weeks ago, along with John Bolton (former uber-hawk and U.N. ambassador in the Bush White House) and Dore Gold (former Israeli U.N. Ambassador and personal friend of Netanyahu.)
- Observer, Ken Watkin (Canada) - The former head of the Canadian military's judiciary holding the rank of brigadier-general, Watkin was legal adviser to a Canadian military/civilian board of inquiry investigating the activities of the Canadian Airborne Regiment Battle Group in Somalia - where he defended the Canadian military. Later he was counsel in respect of various investigations and inquiries arising from the 1994 genocide in Rwanda. He has also served as legal adviser to the Canadian navy and to Canadian commanders in Bosnia. Most recently, Mr. Watkin refused to answer questions when called to testify in Canada's House of Commons about whether he was directed to authorize the transfers or had knowledge of Canadian diplomatic reports of torture, and claimed that solicitor-client privilege owed to the Government of Canada prevented him answering the House's questions.