Israel Tries To Walk a Fine Line In Examination Of Flotilla Raid
By Nathan Guttman June 9, 2010
The deadly raid on a Gaza-bound flotilla in the Mediterranean Sea has left both Israel and Turkey searching for answers. Who fired the first shot on the Turkish-flagged Mavi Marmara, where the nine deaths occurred? What motivated some pro-Palestinian activists to attack the Israeli commandos who boarded that ship, when other commandos boarding other ships in the flotilla weren’t attacked at all?
As Israel works with the U.S. administration to finalize the outlines of an inquiry committee to investigate the deadly raid on the Gaza flotilla, it is not clear that answers to these questions, and others, will be found. Nor is it clear that the inquiry will settle conflicting accounts of the disputed event.
The path chosen by Israel for conducting this investigation reflects an attempt to balance two opposing demands. On the one hand, Israel wants to ensure that its soldiers are protected from civilian investigation and prosecution, and that the country is not unfairly tried in the court of world opinion. On the other hand, there is the Turkish demand to get a full account of the killing of its civilians by Israeli commandos. The emerging outlines of the committee lean heavily in favor of the Israeli interests.
Ever since the May 31 raid, Israel has been involved in a concerted diplomatic effort to fend off calls for an international investigation. Traumatized by the Goldstone Report — the last international attempt to look into Israeli military actions, which alleged that Israel and Hamas committed war crimes during the Gaza conflict — the Netanyahu government adopted a clear stand against handing over inquiry authority to the international community.
Israel was aided in this effort by the Obama administration’s work among United Nations Security Council members that led to an ambiguous statement calling only for a “prompt, impartial, credible and transparent investigation conforming to international standards.” An offer put forward later by U.N. Secretary General Ban Ki-moon, for an inquiry committee headed by a former New Zealand prime minister and shared by Israeli and Turkish representatives, was turned down by Jerusalem.
“There is clearly an advantage for Israel in having it conduct the investigation itself,” said Mordechai Kremnitzer, vice president at the Israel Democracy Institute. He explained that by avoiding an international investigation, Israel would maintain its national sovereignty and also could ensure that the inquiry panel has “more understanding to the Israeli interests.”
Israel did indicate, however, its willingness to compromise by accepting the U.S. demand for international presence, most likely in the form of a retired U.S. high-ranking officer serving as an observer on the inquiry panel.
Multinational investigations are rarely used in international relations and have been suggested mainly in cases in which two countries could not reach an agreement regarding facts on the ground. One such an event was the March 26 incident in which North Korea torpedoed a South Korean ship, killing 46 sailors. An international panel made up of representatives from the United States, Britain, Australia and Sweden put the blame for the attack on North Korea.
Experts say that such international inquiries do not generally come with subpoena power, and a sovereign country is free not to comply — a step that Israel chose when it decided not to comply with the Goldstone inquiry. But it remains to be seen whether an exclusively Israeli inquiry could garner enough credibility to reduce the international pressure on Israel since the attack.
By choosing the course of a government-mandated inquiry commission, Israel maintains control of its scope and breadth. According to Israeli law, it is up to the cabinet to set terms of reference for the committee. Although the panel would enjoy full independence, it could not reach beyond the parameters defined by the government.
“If the government wants to make sure that the military levels are not investigated, it can easily state in the terms of reference that the committee’s purpose is only to investigate the policy decisions surrounding the event,” said Ze’ev Segal, an associate professor of law at Tel Aviv University who has written extensively on the issue of inquiry committees in Israel.
A separate investigation into the actions of Israeli navy commandos will be carried out by an internal military committee headed by retired Maj. Gen. Giora Eiland. This, according to Israeli sources, will be the only venue in which soldiers in uniforms would be required to testify.
But building a firewall between the military and the inquiry committee and focusing the committee’s work on the political backdrop to the raid also mean that many questions will remain unanswered. The panel will not be able to investigate firsthand the events on the ship and will not be able to judge between the two contradicting narratives — the Israeli storyline that depicts an encounter between lightly armed commandos and bloodthirsty terrorists, and the Turkish one that talks of peace activists on their way to a humanitarian relief mission brutally attacked by the Israeli navy.
Furthermore, preferring an Israeli committee to an international panel means that investigators would likely have little to no access to the activists who were on board the ships.
Still, the Netanyahu government is taking a risk by launching an Israeli investigation, both due to the issues it will look into and the possible recommendations it could make.
The committee would be expected to rule on the legality of Israel’s decision to put Gaza under a land and sea blockade and on the legitimacy of intercepting ships bound to Gaza in international waters. While Israeli legal experts have expressed their confidence that international law sides with the Israeli approach, some experts question this interpretation.
Beyond the legal matter, the commission could produce conclusions that would potentially harm Prime Minister Benjamin Netanyahu or Defense Minister Ehud Barak politically. In the past, Israeli inquiry commissions proved problematic for senior politicians. The 1982 committee investigating the Sabra and Shatila massacre in Lebanon called for the resignation of Ariel Sharon, then minister of defense, and the 2006 Winograd committee investigating the second Lebanon war resulted in a critical look at the decision-making process of the Ehud Olmert government, although it refrained from making any personal recommendations.
Contact Nathan Guttman at guttman@forward.com
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