A proper investigation

The prime minister should know that only a real, skillfully conducted and credible investigation lays the groundwork for the possibility that the Americans will refrain from supporting an international investigation.

By Ze'ev Segal

If Prime Minister Benjamin Netanyahu indeed supports a serious investigation into the Gaza flotilla affair, as his associates adamantly suggest, and is not merely sufficing with an investigation for show, a golden opportunity has fallen into his lap that he will be able to promote at this morning's cabinet meeting.

Contrary to what is believed in Israel, the Americans are meticulously examining this country's constitutional state of affairs. They understand the difference between a state commission of inquiry, whose members are appointed by the Supreme Court president exercising his or her own judgment, and a government investigative committee appointed by ministers with a connection to the matter at hand.

These two types of panel are different from the informal committee headed by Jacob Turkel to look into the flotilla incident. Turkel's committee lacks a real mandate, public status and investigative powers. Forming it was cooked up by various cabinet advisers, led by Justice Minister Yaakov Neeman, to reveal little and leave much undisturbed.

The prime minister should know that only a real, skillfully conducted and credible investigation lays the groundwork for the possibility that the Americans will refrain from supporting an international investigation. At this stage, the Americans have made it clear they don't rule out support for an international inquiry.

Under the existing circumstances, the chances for the preferred option of a state commission of inquiry are slim unless other ministers demand it of the prime minister and unless Defense Minister Ehud Barak agrees. At the same time, a decision to convert the Turkel Committee, in a properly expanded format, into a government investigative committee as provided for by law, with full investigatory powers, would also be significant.

Providing the committee with investigative authority, however, would only accomplish half the job. What the committee would examine is no less important. Without a broad mandate, the committee would resemble an empty shell. If its current mandate is left in place, as the parties involved in the matter seek, the Turkel Committee would be useless, of no advantage either domestically or internationally.

Its current mandate is limited, inadequate and turns it into a forum for legal debate with authorization only to examine a few subjects: the military circumstances surrounding the naval blockade on Gaza and its conformity with international law; the conformity with international law of Israel's steps to enforce the blockade; and an examination of the flotilla organizers' actions and the quality of Israeli supervisory mechanisms in cases of violation of the international laws of war.

The Turkel Committee was not authorized to look at how preparations for the the flotilla's arrival were carried out on the political level in Israel or to examine the actions of senior military officials such as the naval commander. The emphasis in the current mandate, which with respect to the military only authorizes the committee to request information from the Israel Defense Forces chief of staff and to receive summaries of the military investigations, explicitly contradicts the broad authority needed for a serious inquiry.

The current mandate pales in comparison to the mandate given to the government committee of inquiry headed by retired judge Eliyahu Winograd that examined the Second Lebanon War. That committee's authority included the preparations for and conduct of the war on the political and military levels. It covered all relevant aspects including the conduct of the campaign from its political, military and civilian aspects. The Winograd Committee was authorized to develop findings and conclusions and submit recommendations as it saw fit.

Usually a committee convened as a state commission of inquiry via a cabinet decision or appointed by ministers on a subject within their area of responsibility sticks to its mandate. At the same time, it has happened that a commission of inquiry - the Kahan Commission that investigated the massacres in the Sabra and Chatila refugee camps in Lebanon - declared that it could not carry out its work properly if it did not "to a certain extent" exceed the authority provided by the cabinet's resolution. Exceeding authority in a limited manner is possible, but the cabinet's decision narrowing the committee's range of action could foil the investigation if the committee conducts itself "by the book," as is the accepted practice.

A serious cabinet debate either today or at a later session cannot suffice with approving full investigative powers of a government investigative committee. Without a comprehensive and broad mandate, it would not be worth the efforts of the committee's members. Judge Turkel has reportedly demanded that the committee's investigative powers be expanded, but only if it is given a real mandate will it be able do its work with the integrity expected of it.