The Turkel Bites!(well he just nibbles for now)

I was wrong.

Yesterday (see my previous blog entry) I predicted that nothing would come of Gush Shalom's suit before the Israeli Supreme Court demanding that the Turkel Commission into the flotilla fiasco be given an expanded mandate and powers.

The case was to be heard today. But as I was writing my prediction of nothing much happening, the State Prosecutor was asking for a 10 day delay in the hearing because of "an expected change to the mandate"

Turns out (see here and here) that Judge Turkel was threatening to quit if the mandate and powers of the committee where not expanded and Netanyahu and Co. are inclined to give in - at least a bit. According to Haaretz:

The government on Tuesday looked set to widen the scope of an inquiry into Israel's deadly raid on a Gaza-bound aid flotilla, after a judge leading the probe threatened to resign unless his powers were increased.

Earlier this week, retired Supreme Court justice Jacob Turkel approached Justice Minister Yaakov Neeman, citing legal grounds to support a demand to extend his remit. According to Turkel, paragraphs 8 and 8a of the Basic Government Law grant an independent committee of inquiry the right to conduct a full judicial investigation, including the authority to subpoena any witnesses or evidence it requires and to take testimony under oath.

By late Tuesday, there were indications that the government would bow to Turkel's demand. Prime Minister Benjamin Netanyahu is believed to have discussed the issue with Neeman, as well as with Attorney General Yehuda Weinstein and Defense Minister Ehud Barak – with all four agreeing that Netanyahu should formally consider the request.

The debate in government follows a petition handed to the Supreme Court this week by Gush Shalom, a campaign group, also demanding a broadening of the inquiry.

And according to a later article:

In addition, Turkel said he wants to expand the committee from three members to five, not including the two foreign observers.

Turkel's demand for wider powers comes amid widespread media criticism that has painted the committee as being designed mainly to retroactively justify the blockade of Gaza, the use of force to maintain it and the bloodshed on board the Mavi Marmara when naval commandos were attacked by passengers wielding knives and iron bars. The commandos, who had been ordered to seize control of the ship and divert it to Ashdod Port, opened fire in self-defense.

But it appears that what really moved Turkel to demand change was the criticism from other jurists about the panel's limited mandate, as well as a petition to the High Court of Justice by the Gush Shalom movement demanding that the committee be given broader powers. The court was to hear that petition today, but received an urgent request for a 10-day postponement from the State Prosecutor's Office yesterday on the grounds that the government is currently considering expanding the committee's mandate, which would make the petition unnecessary.

The request also noted that in light of the possible change in its mandate, the Turkel Committee will not hold its first session until July 11. Netanyahu is expected to be the first witness.

The Prime Minister's Office said in a press statement yesterday that it sees no reason why Turkel's demand for greater investigative powers cannot be met. But it stressed that these expanded powers would not include the right to question soldiers.

Was Turkel motivated by inner conviction, by being embarrassed in front of the legal community, or by the fear having change forced on him by his former colleagues the Supreme Court? Will he agree to an expanded mandate if it does not allow him to question soldiers? After all how can the committee learn the truth re disputed facts, if it cannot interview the people who where there.

So, we will have to wait and see. Does this Turkel have a bite - or only a nibble.

Government Throws Turkel a Bone

The Israeli Government has thrown the Turkel Committee a bone.

According to today's Haaretz:

The government unanimously voted Sunday to expand the authority of the Turkel Commission investigating Israel's raid of a Gaza-bound aid flotilla.

According to a statement released by the Prime Minister's Office, new powers will allow the commission, headed by Supreme Court justice Jacob Turkel, to subpoena witnesses and receive sworn testimony. The decision excludes Israel Defense Force soldiers.

Well of course that last sentence undercuts the demands made by so many - including Judge Turkel himself - to give this committee some teeth. In addition the government refused to broaden the committees mandate, to look into more than the legal issues and the behavior of the Turkish flotilla organizers. You can read why an expanded mandate and powers were needed here, as well as my previous blog entries on the issue.

This bone is just that: a bone with no meat. It shouldn't fool anyone. The committee, as is, is a joke and a smokescreen, designed to get world opinion off Netanyahu's back while confirming the Israeli government's pre-existing position: we were right, they were wrong.

The Good, The Bad and the Uncertain

The good news: Israel has decided to cooperate with a UN Committee charged with looking into the flotilla affair. Maybe the Netanayahu government learned from the Goldstone Committee that a report will be made in any case, it will receive wide coverage and credibility in any case, and it is better to cooperate and try to influence the report's findings than to stand haughtily to the side. Or maybe they decided it is too costly to burn all of Israel’s with Turkey - still a moderating voice in the Muslim world, and still the only country in the regions that Israel has normal relations with (or at least did until the it killed 9 Turkish citizen's in on the Mavi Marmara.)

The bad news: Netnayahu's decision is being furiously attacked by Israel's "moderate" opposition. Kadima head Tizpi Livni is quoted as saying: "The IDF has a chief of staff, not a secretary general. I am opposed to a UN inquiry that will involve the IDF, its soldiers and its commanders." She might have a point when she also accuses the government of giving in too late to the idea of a U.N. committee and doing so only after its own emasculated Turkel Committee had failed to convince the world that it would actually get to the truth. But to demand that, as a matter of principle, Israel not cooperate with the UN, is wrong headed. Israel needs to re-join the family of nations, not further isolate itself in a hole largely of its own making.

The uncertainty: Will Livni's prediction hold true? Will the U.N. committee really be able to question Israeli soldiers who participated in the raid, and will it be allowed to examine evidence held by Israel? If not this committee will also be viewed as a joke and only result in more scorn being heaped on Israel for a cover-up. On the otherhand if Israel fully cooperates, it may buy itself some good will, even if it is at the expense of admitting some fault. Ironically, if the UN committee is allowed to question witnesses and examine evidence, it will have been given more powers and more access than the government’s own Turkel Committee. So before we get to excited about all this one way or the other, we will have to see just what level of access the UN committee is given.

Israel's Turkey Commitee Begins Its Work

According to Haaretz:

Israel's internal committee investigating Israel's [flotilla] raid - headed by retired Supreme Court justice Jacob Turkel - held its first meeting in Jerusalem on Monday.

One of the international observers, Lord David Trimble of Northern Ireland, said at the start of the meeting that the investigation would be serious and rigorous.

We have already noted in a previous blog entry that Trimble is hardly a neutral observer, having, on the very day of the flotilla raid, announced his joining the "Friends of Israel" group whose state goal is to prove to Europeans that Israel is their first line of defence against radical Islam. Well here he is - on the very first day of the committee's work - issuing the conclusion about exactly what he is supposed to be observing. He is not a there to do the committee's work, but to observe and report on exactly how serious and rigorous that work is. But he already knows the answer.

The article continues:

Turkel expressed hope that the committee would complete its duty fast, and that the prime minister, defense minister and the Israel Defense Forces chief of staff would shortly be summoned to testify before the committee.

So, as claimed by many, the committee chair wants to issue a quick - rather than a thourough - report. The point being to close the book with as little fuss as possible.

The committee members, including Shabtai Rosenne, a professor of international law, and Maj. Gen. (Res.) Amos Horev, met to create panel guidelines and a schedule for hearing witness testimony, and determine the extent to which the observers will participate in the hearings.

What!? The observers will only be allowed to observe parts of the committee's work - presumably the parts that will not embarrass anyone, or bring the committee's conclusions into doubt. What is the point of observers then? It seems that having hand picked apriori-sympathetic observers, the Israeli government - who gave the committee its very restrictive and detailed terms of reference - still does not completely trust Trimble and Watkins to tow the line.

The committee will also examine the security-related reasons for Israel's imposition of a naval blockade on the Gaza Strip, which the flotilla was launched to protest, and the conduct of Turkey and the flotilla organizers.

How they are going to do the latter, when there are no plans to interview anyone who was actually on the ships or organized them is a mystery.

Meanwhile, tomorrow, Wednesday June 30, the Israeli Supreme Court will hear an appeal to dismantle the Tirkel Committee and replace it with a Judicial Commission ofInquiry.

The following is a press release from the Israeli peace and reconcilliation group Gush Shalom. I agree with there argumenst almost entirely, and I hold out almost zero hope that the Supreme Court will rull in their favour

Uri Avnery: "Even if the United States government was convinced to agree to a powerless, meaningless investigation, we as Israeli citizen concerned for the future of our country absolutely don't agree."

Tomorrow, Wednesday June 30, at 9am Judges Naor, Meltzer and Dantziger of the Supreme Court in Jerusalem will hear the appeal of the Gush Shalom movement to dismantle the "Tirkel Committee" and replace it with a Judicial Commission of Inquiry, independent of the government and fully empowered to investigate the circumstances of the Israeli Navy takeover of the GazaFlotilla. The appeal is signed on behalf of Gush Shalom by former Knesset Member Uri Avnery, and the movement's spokesperson Adam Keller. It is represented by lawyers Gaby Laski, Lymor Goldstein and Neri Ramati.

The main argument in the state's answer, presented to the Supreme Court, is that the government has an unlimited power to decide whether or not to investigate a certain event at all, in whose hands to place theinvestigation and what powers to give the investigators, and that in the past the Supreme Court rejected appeals seeking to impose on the government the creation of a Judicial Commission of Inquiry.

The state also described to the court at great length the negotiations conducted between the government of Israel and the government of the U.S. Initially, the U.S. tended to support an International Commission of Inquiry under auspices of the U.N., but eventually came to endorse the creation of the "Tirkel Committee" in Israel. To underscore this point the State went as far as presenting to the Supreme Court in Jerusalem as an exhibit, the statement issued by the White House spokesperson on this subject, as well as the full text of a TV interview by the American Ambassador to the U.N.

"The State's answer exposes the main purpose for which the Tirkel Commission was formed: not the wish to investigate what really happened on the boat and how nine of its passengers came to be killed, but the intention to appease, at the cheapest price, the world governments and public opinion, and especially the government of the U.S." says Uri Avnery. "The U.S. government has its own considerations, having to do with worldwide strategic interests and possibly also with internal American considerations of elections due in November.

"We, as Israeli citizens who act to improve the society and the country in which we live, have a supreme interest of our own: to have a thorough and independent investigation into the circumstances of a grave political and military fiasco, which caused preventable bloodshed, which severely hurt Israel's position in the world and whose long-term implications might be felt in many years to come. Only a thorough and truly independent investigation has the chance to prevent similar fiascos from recurring - if not worse ones. With all due respect to the U.S. government, it has no authority to forgo on behalf of the citizens of Israel an investigation which is vital to ensure proper public norms in the State of Israel.

"The respectable people who have been gathered into the Tirkel Committee cannot carry out such a thorough investigation even if they want to, because the government has not given them the needed authority. I in no way share the absolute trust which the State representatives give to the internal investigation by the armed forces of their own deeds, whose results will be given ready-made to the Tirkel Committee without its members having any way of independently checking them. The rule which the State asks the Supreme Court Judges to endorse, that the investigation of soldiers about their acts in the field should be carried out solely through the debriefing carried out by the army itself and that statements made during debriefing should not atall be passed to anyone outside the armed forces, is a dangerous erosion of the principal of civilian control over the armed forces, a cornerstone of any democratic regime.

"In Article 16 of its answer to the court the State claims that only passengers of the Mavi Marmara were hurt by the takeover of the boats by Israeli troops. This assertion is in complete contradiction to many testimonies, published all over the world, about brutal behavior of the troops also to passengers of the other boats, though luckily not coming to the point of fatalities. Moreover, the very fact of the State already presenting factual assertions on a subject in which the Committee is supposed to investigate and present conclusions testifies to the State not taking seriously the investigation which is supposed to be conducted.

"The mandate given to the Tirkel Committee by the government included among other things the task of investigating and reporting on the identity and theactivities of the Flotilla organizers and participants. In practice, the Committee is active for more than a week already, and there is no mention of any intention to contact the Flotilla organizers and participants and heartheir testimonies. The Committee has not offered to Flotilla participants the option to come and testify in Israel while having immunity from arrest by the police - and indeed the Committee has no authority to offer such immunity. Nor did the Committee announce any intention to go abroad and there hear the testimonies of the Flotilla organizers and participants - and also here the Committee was not at all given the authority to go abroad and collect testimonies outside the boundaries of Israel. All this gives rise tothe strong suspicion that the Committee intends to discuss the identity andactivity of the Flotilla activists, reach conclusions and publish a report about them - without hearing a single testimony from the people concerned themselves. Such a procedure denies in advance any credibility to a report which the Committee would eventually publish on this subject.

Contact:

Uri Avnery +972-50-5396440
Adv. Gaby Lasky +972-54-4418988
Adam Keller +972-54-2340749

We May Never Know The Truth For Sure, But Everyone Will Ask, "What Is Israel Hiding?"

As I suspected it might, Israel is refusing to allow the U.N. committee investigating the flotilla massacre - and on which Israel itself has a representative - to question Israeli soldiers involved in the affair, (see details here.) So much for winning hearts and minds, or appearing to be a good world citizen.

The only way to form an intelligent and truly informed opinion about whether or not Israel used excessive force and about who was responsible for the 9 deaths, is to question the people involved and examine physical evidence. By refusing access to its soldiers and to all the physical evidence it seized - both to the U.N. committee and to it own internal civilian investigative panel (the Turkel committee) Israel is only strengthening the claims of those who say Israel trying to hide something and therefore must be guilty.

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.

Sources:

http://www.ctv.ca/CTVNews/TopStoriesV2/20091105/afghan_prisoners_091105/?s_name=&no_ads=
http://www.forces.gc.ca/site/about-notresujet/bio/BGen-Ken-Watkin-eng.asp
http://www.reuters.com/article/idUSTRE65D1E120100614
http://www.haaretz.com/news/diplomacy-defense/who-s-who-on-israel-s-committee-on-the-gaza-flotilla-raid-1.296102
http://www.haaretz.com/news/diplomacy-defense/netanyahu-gaza-flotilla-probe-will-show-the-world-israel-acted-lawfully-1.296074