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I participated yesterday (11 December) in a discussion at the English Morning Edition of i24 news (starts at 17:50 minutes, about 10 minutes). The discussion followed the release of a second update by the Military Advocate General (MAG) on the status of investigations of claimed violations of the Laws of Armed Conflict during "protective Edge" operation last summer.

I must say the experience was not easy, even frustrating. Slogans such as "the IDF can't investigate itself" used by B'Teselem spokesperson Sarit Michaeli are very catching. I mentioned the fact that the Turkel Commission, an independent public commission headed by a retired Supreme Court judge with the participation of esteemed foreign observers probed exactly this question and found, after hearing B'Tselem and other NGO's raising the same claims, that military justice systems may be sufficiently independent to investigate allegations of war crimes, and that in fact, the Israeli system is compatible with international standards.

Yael Lavie, the interviewer, seemed very convinced saying it will not hold water in the world, making me feel that what I said was water off a duck's tail. Perhaps she is right and detailed legal and factual analysis is a waste of time in this world of images and appearances. However, here are some more details for those actually interested in archaic concepts like truth:

The Turkel commission published a detailed (474 pages) report. It analyzed the relevant sources of international law and held a comparative survey of investigative systems relevant to laws of armed conflict in six jurisdictions (US, Canada, Australia, UK, Germany and Netherlands). On this backdrop the Israeli mechanism of investigations was evaluated, not just in theory: 60 files were sampled by the commission and examined thoroughly. These were the conclusions:

"…taken as a whole, Israeli law and practice will stand comparison with the best in the world" (The Rt. Hon. David, Lord Trimble, an international observer).

This does not mean that the commission did not find some flaws and recommended improvements. However, one should remember the clear bottom line.

As to the "military investigating itself" argument, the commission stipulated:

"Before we turn to consider the other general principles, an important preliminary question must be addressed: can a military justice system, as such, be sufficiently independent to undertake an ‘effective investigation’? The Commission emphatically answers this question affirmatively. Not only are internal investigations by military actors permitted under international humanitarian law, but those precise structures are expressly envisaged. For example, Article 84 of the Third Geneva Convention refers to the military justice system of States Parties as the default system in which both the State’s own military personnel as well as prisoners of war should be brought to trial. A similar attitude has been expressed in Cooper v. the United Kingdom, where the European Court of Human Rights held that the existence of a service tribunal is not necessarily inconsistent with the principle of independence. It found that ‘there is no reason to doubt the independence of the decision–making of those bodies from chain–of–command, rank or other service influence’. As will be demonstrated in Chapter B of this Report, and in the country reports (Annex C), the four common law countries that were surveyed by the Commission have distinct systems of military justice, all supporting the proposition that the mere existence of such a system is not, ipso facto, inconsistent with the accepted rules of international law.

The Commission concludes that, consistent with the Geneva Conventions and their Commentaries, decisions by tribunals, and State practice, a military justice system is not necessarily inconsistent with the principle of independence."(para. 73, p. 123-125).

If you are still not convinced, I give up.

Another surprising criticism was on "lack of transparency". I urge you just to take a look at the MAG's second and very detailed update mentioned above (with a link). I will be grateful for information on more detailed reports made by other militaries and states such a short time after hostilities ended.

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