Professor Tim McCormack thanked Nina Bassat and David Marlow for this wonderful opportunity to
speak at the Plenum and renew this connection with the Jewish community.
Professor McCormack was the Australian recipient of the Golda Meir Postdoctoral Fellowship to the
Hebrew University 24 years ago. Together with his wife, they spent 12 months in Jerusalem and
studied on the Ulpan Program. Three weeks ago he spoke to Prime Minister Netanyahu in Hebrew
whose response to his Hebrew was, “Not bad” in English.
The copy of the Report which Professor McCormack brought to the Plenum is the first copy to arrive
in Australia – Prime Minister Netanyahu received the English and Hebrew versions and his response
was that it was heavy. Quantity and quality aren’t necessarily synonymous with each other, but
fortunately, this time it is big but with good quality material in it.
Professor McCormack went on to explain how a young Tasmanian boy could end up being involved
in this work. We all know that the First Phase of The Turkel Commission Inquiry to Israel’s response
to the Mavi Marmara Incident, the interdiction of the self-declared humanitarian flotilla to Gaza in
May 2010.
In June 2010 the Israeli Government set up the Turkel Commission of Inquiry, named after the
Chairman of the Commission, Retired Justice of the Israeli Supreme Court, Yacov Turkel. There were
then 4 other members of the Commission, Ambassador Shabtai Rosenne, who joined the
Commission in his nineties and was a formidable member of it until his untimely death. From his
perspective, Professor McCormack only joined the Turkel Commission in Phase II, it was a shame
that he had missed the opportunity to work with Ambassador Rosenne. The other members of the
Commission are retired Two Star Army General Amos Horev, retired Diplomat and Arabist from the
Australian Foreign Ministry, Ambassador Reuben Merav, and Professor Miguel Deutch from Haifa
University.
In addition to those Israeli members of the Commission, the Government accepted a
recommendation from the young Executive Officer of the Commission to appoint two international
observers. You may recall there was a lot of criticism of the Mavi Marmara Incident of the IDF
interdiction of the amount of force which was used. There were calls for the establishment of the
International Commission of Inquiry. The Israeli Government decided to set up their own unilaterally
and that decision was heavily criticised. One day it was thought to counter some of that criticism by
appointing two independent international observers, Lord David Trimble, Former First Minister of
Northern Ireland, former Nobel Peace Prize Laureate for his joint resolution with Northern Ireland
Prime Minister at that time, Bertie Ahern for the conflict of Northern Ireland.
Alongside Lord Trimble was a Canadian, a very senior Army Lawyer, Brigadier Ken Watkin, who was
the Judge Advocate General in the Canadian Armed Forces before he retired and is a very well
respected scholar in International Humanitarian Law, the Law of Armed of Conflict. Brigadier Watkin
was appointed as the subject matter expert for the inquiry and he worked extremely hard on that
first phase.
The report from the First Phase was handed down in February 2011 and the report confirmed the
legality of Israel’s naval blockade of Gaza and the right to forcibly indict ships that attempted to
travel unauthorised to Gaza to ensure that they were not carrying weapons designed for distribution
to Hamas upon arriving in Gaza. There was a lot of discussion of the IDF response and the escalation
of force and also about the amount of force that was actually used against IDF soldiers as they
attempted to repel down from helicopters on board the deck of the Mavi Maramara.
That report was taken seriously in international circles and one of the international investigations
that were conducted, The Palmer Commission Of Inquiry, was laudatory in its praise of the first
Turkel Commission Report. It didn’t agree with all the findings of the Commission Report but it
certainly affirmed the legality of the naval blockade, which was some comfort to those members of
the commission who drafted and tabled that first report.
In March 2011 after the first report had been handed down, there was a decision taken to extend
the mandate of the Turkel Commission beyond the original incident of this humanitarian so called
flotilla. To broaden out the inquiry, to look not just at a single incident, but to look at how Israel
investigates alleged violations of the Law of Armed Conflict, or International Humanitarian Law. Not
in relation to a specific incident, or even a group of specific incidents, but generally speaking, are
Israel’s mechanisms for examining and investigating alleged violations of this body of law consistent
with international legal obligations or not? Let’s have an open independent inquiry into that
question and see what we come up with. The Government agreed and extended the mandate of The
Turkel Commission and so through April 2011 there were a number of extensive hearings conducted
involving interviews with and testimony from all the relevant Israeli Government agencies, the Israeli
Defence Force from its operators as well as from its lawyers from the Shin Bet, the Secret
Intelligence Service, from the Police, from the Attorney-General and then also from a number of
Israeli NGO’s.
In May 2011 after those hearings had been concluded, Brigadier Watkin had to return back to North
America. He agreed to take up a position from early June 2011 at the US Naval War College and
couldn’t delay his departure from Jerusalem any longer, so he left. The Commission needed to find a
law of armed conflict to replace him, and that’s where the invitation came to him, which he is
privileged to say.
The young Executive Officer of the Commission rang him and they had a number of conversations
about whether he would accept this position or not. He had some questions to ask about the
independence of the Commission and whether they would be able to do their work with
Government influence, and he was assured that they were, and the first phase had been reflective of
that. He had extensive conversations with Brigadier Watkin who confirmed all of that, so he said that
he was happy to talk some more. He was then asked where he would be in the week commencing
May 11 2011. He would be in Sydney as he happened to be providing some legal advice to the
defence for the court marshall proceedings against two Australian Defence Force Officers who were
charged with some criminal offences in relation to an incident in Afghanistan.
So this guy flew to Sydney and he had his interview for the job. It wasn’t sort of couched that way, it
wasn’t really constructed that way but that’s in fact what it was. They had a fairly lengthy chat and
tried to find a kosher restaurant, it wasn’t easy to do, but they managed to find one in Bondi
Junction and had a nice meal together. It was a great experience for him as he has never had anyone
fly across the other side of the world to check him out before.
In June 2011, he flew to Jerusalem on the first of five trips over the next nineteen month period, and
met with Commission members and became an official observer with Lord Trimble, replacing
Brigadier Watkin for the rest of phase II. He thought it was a bit of a disadvantage to him personally,
to miss out on hearing the testimony of the various people who spoke to the Commission, but he
had full access to the transcripts of all their testimony, and had the opportunity to bone up on what
had been said.
He commented on the structure of the report and the approach that was taken and also on some
recommendations and what he considers to be the significance of this report.
The report starts off with a very detailed study, in fact his view is that there isn’t anything equivalent
to it in the international legal literature. A very detailed study of a question, of what international
law obliges states to do by way of investigation of alleged violations of the Law of War and Armed
Conflict, using these terms interchangeably.
Professor McCormack stated that it was interesting as he had never done an extensive study himself,
he spent the last twenty four years of his academic career focused on this body of law, which has
always been on the rules and understanding of what they are, and also in enforcement in terms of
relation to violations, the process of the criminal trial proceedings, whether they are fair or not,
open or transparent, and whether they reach a proper conclusion in terms of the facts and the law
as applied to those facts or the alleged facts.
What is really fundamental in the process of course is the investigation in the first place, that leads
to a decision being made about whether to lay charges or not. This is an aspect that he had never
really considered himself. What this report does is really explore in the greatest detail that anybody
has ever done before, a comprehensive study as to what the international law would have to say
about that. This is not an academic or theoretical question because interestingly in the Rome statute
for the International Criminal Court, there is a very important provision about whether the court can
exercise jurisdiction in circumstances where a relevant state has demonstrated a lack of willingness
to take it’s national responsibility seriously to investigate and prosecute an alleged war crime, or an
alleged crime against humanity, or alleged crime of genocide, the core crimes in the jurisdiction of
the International Criminal Court. That provision specifies and provides some examples of what
constitutes a lack of willingness on the part of a state. One of them is that the relevant state has not
undertaken an impendent and partial investigation.
There is this concept in International Criminal Law in the statute of the International Criminal Court
that states have to undertake a bonafide independent and impartial investigation, and if they don’t,
they run the risk of the International Criminal Court exercising its jurisdiction. A lot of states in which
Israel is amongst them have a very significant interest in assuring that its processes for investigation
meet that standard of the independent and impartial.
A lot of the first part of the report focuses on what the International Law says constitutes an
independent and impartial investigation.
Moving on from the identification of the current state of the law, to what other states actually do.
One of the very important features of the Turkel Commission Report for Phase II, involves a
comparative study of six countries, less UK, Canada and Australia as common law countries,
Germany and the Netherlands as continental European countries with a civil law system. In each of
the cases there experts from each of the six national jurisdictions undertake a comprehensive study
about their military justice system and what processes they implement to investigate alleged war
crimes or violation of this body of law.
Professor McCormack wrote the report for the Australian Military justice System, which was a really
great experience to get down into the detail of our Military Justice System, which he was familiar
with some things but certainly not as much as he knows now.
Having undertaken these six studies they tried to do a synthesis assessing what are the
commonalities and what are the points of difference, and what we can learn about the approach of
these jurisdictions. Then having done a comparative study on international law, some selected case
studies from international experiences, we look at the Israeli system, what are the mechanisms and
the processes that currently exist, and how does that system measure up to what we understand
now, as a consequence their study here to be the International Liquor Standard.
Twenty eight recommendations are made as part as our response and our assessment and analysis
of the Israeli approach to examining and investigating alleged violations of the law. Lord Trimble had
the authority of personal experience to Northern Island to assist on certain standards being
implemented, the least that is recommended to the Israeli Government, that certain standards have
to be met.
The Commission heard testimony to the effect that over a specified period of time, there were as
many six hundred allegations of mistreatment or worse, torture, and not one of these allegations led
to disciplinary actions. The Commissioner was quite shocked by that statistic and Lord Trimble
insisted that there has to be something done about that.
There were two recommendations in relation to the Commission’s consideration of these statistics.
One of them is whether Shin Bet should be investigating complaints against it, the way it has always
been, and their recommendation is that this change, instead that the Israeli Police investigative
service takes responsibility for investigating allegations of mistreatment. There has to be some
independence from the chain of command to valiantly be able to put your hand on your heart and
that this investigation was independent and impartial.
The second recommendation in relation to the Shin Bet is that all interrogations should be video
recorded. Lord Trimble’s view was that in Northern Ireland it was after the imposition by law of
mandatory video recording of all British interrogations of Northern Irish suspects that the incidence
of alleged mistreatments in the contents of the interrogations plummeted. Lord Trimble went a little
out on a limb and absolutely insisted on it.
Those two recommendations will probably be the most controversial in terms of internal Israeli
Government consideration. There are other structural recommendations that relate to the Military
Justice System in Israel. The Military Advocate General has in the past worn two hats, which can add
tension in terms of responsibilities. Prior to our recommendations, the Military Advocate General
was primarily responsible for all legal advice in relation to Israel Defence Force Military Operations,
but was also the person exclusively responsible for determining whether or not charges should be
laid, whether or not an Israeli Defence Force member against whom their war crime allegations
should be tried or should be disciplined in some way. One of the academics presented testimony to
the Commission that this is problematic, it creates some tension in regards to the Military Advocate
General’s responsibilities. So the Commission’s recommendations is that in relation to legal advice
he not be the sole source of it, that in fact there would be specialist international humanitarian law
of armed conflict advice from within the Attorney General’s office, a Ministry of Justice and also that
the Military Advocate General not exercise exclusive responsibility in terms of deciding whom
against charges might be laid but that the military prosecutor have greater authority and autonomy
and that the Military Advocate General also be more answerable to the Attorney General than is
currently the case.
The first thing significant in relation to the report, was that he doesn’t know any other country that
setup an independent commission of inquiry to review its national investigative mechanisms. He is
actually proud that Israel did that in this case, and that the process was truly independent. At the
time that Professor McCormack was first asked to join the Commission as its National Observer, he
was also Special Advisor on Humanitarian Law to the Prosecutor International Criminal Court in the
Hague, an appointment he took up in March 2010 which he still holds today.
When Professor McCormack was first asked in 2011 to join the Commission, he said that he needed
to speak to the Prosecutor. You might recall that in 2009 the Palestinian authority had lodged a
declaration with the Registrar of International Criminal Court claiming that they were consenting to
the exercise of the court’s jurisdiction, and there were lengthy, several years in fact till late last year,
a process of trying to determine whether that was a valid declaration or not. Personally he did not
think he was afflicted if he took on the position with The Turkel Commission but wanted to make
sure that the Prosecutor of International Criminal Court was comfortable with him doing it, so they
had a lengthy chat on the phone from Melbourne to the Hague, whose response was very
encouraging and stated that it was entirely consistent with their statute that they support any
country in the world whether they are a state party to the Rome Statute or not, Israel isn’t, that they
support them in any attempt to review their internal or national processes for investigating alleged
war crimes. He was advised that if any Palestinian authority had problems with this then it would be
handled by the Prosecutor of International Criminal Court. This was extremely encouraging to him.
Professor McCormack told the Israeli Prime Minister that he congratulated him on the initiative to
setup an independent Commission of Inquiry.
The second thing significant in relation to the report, is that the international analysis breaks new
ground. Interestingly he had an unsolicited email from a colleague from The Israeli Ministry of
Justice, who sent congratulations on The Turkel Commission Report, “a wonderful piece of work,”
that many of his colleagues believe that this is one of Israel’s greatest contributions to the
development of international law. Professor McCormack was very greatful to him for sharing this
observation with him.
No punches were pulled with the recommendations that were made, some of them hard hitting. The
IDF announced publicly after the report was tabled that they could live with it. He doesn’t think that
the Military Advocate General is really excited about it, but interestingly from his perspective, there
were media that afternoon praising the report and Government for setting up a Commission that
would produce a report like that.
The Haaretz Newspaper that came out after the Commission Report was tabled, was laudatory and
urged the Government to take these recommendations seriously and implement them, as they are
in the best interest of the state of Israel. His opinion is that to get so many remarks like this is not a
bad effort. Implementation of course is the critical thing, as all the Commission can do is make the
recommendations but have no authority to implement them. They are dependent on Prime Minister
Netanyahu and the Israeli Government to implement these recommendations. It will be fascinating
to see if this happens or not, but was assured that a taskforce will be setup with the responsibility to
review all the recommendations and that they will be taken very seriously indeed.
Professor McCormack finished off with some acknowledgements of thanks to the Executive Officer
of the Commission, a young Harvard graduate who was with the Israeli Foreign Ministry and the
Prime Minister’s office, who ran this Commission and searched, found and formed a group of
international advisors. He was the one who identified the most appropriate people to be appointed
as international observers and did a tremendous job. Professor McCormack would like to
acknowledge that and personally what a joy it was to work with him.
There is one other person from Melbourne whom Professor McCormack would like to acknowledge
as well, Michelle Lesh, who through Australian friends was awarded the newest recipient of the
Golda Meir Postdoctoral Fellowship at the Hebrew University, in late 2012. She was appointed on
Professor McCormack’s recommendation, as he had a very bright Masters graduate from NYU,
Maron, an Israeli who had been working with him and had to go back to the US from Israel, to start a
Doctoral study in NYU, and thought that they were irreplaceable.
Michelle Lesh was Professor Tim McCormack’s PhD students who graduated and went off to
Jerusalem to take up where Maron had left off. She has done a fantastic job, and that he is sure of
the fact that the quality of their international legal analysis and the contribution that the Ministry of
Justice says could be Israel’s greatest contribution of International law, is largely due to her superb
research and writing skills. As a dear friend, there is a lovely symmetry for him that in twenty five
years of Friends of the Hebrew University, awarding the Golda Meir Postdoctoral Fellowship, the
first and most recent recipients of it would have an opportunity to work on a study like this. He is
really glad that this is the way it has worked out. Professor McCormack thanked everyone for
listening.