Turkel Commission

The commission divided its work between two related but distinct questions: the legality of the Gaza blockade and the May 31 interception, and the adequacy of Israel’s institutions for examining allegations of violations of the laws of armed conflict.[1] Its formal name was the Public Commission to Examine the Maritime Incident of 31 May 2010, reflecting the incident that prompted its establishment.[5] The first report addressed the security circumstances behind the blockade, Israel’s enforcement actions, and the organizers and participants of the flotilla; the second examined the investigation mechanisms through which allegations concerning such operations should be handled.[1][4]

The first report concluded that the blockade and the actions taken to enforce it complied with international law, while acknowledging the deaths and injuries during the interception and leaving a limited number of individual uses of force unresolved.[5] The second concluded that Israel’s examination and investigation mechanisms generally met its international obligations, but identified grounds for legislative, institutional, and procedural changes.[4] Its eighteen recommendations addressed subjects ranging from command responsibility and preliminary fact-finding to investigative independence, transparency, civilian oversight, and complaints involving security-service interrogators.[4]

These two reports therefore had different purposes: one assessed a particular maritime operation and its legal setting, while the other considered how allegations arising from military and security activity should be examined in the future.[1][4] The latter inquiry extended beyond the naval incident to the operation of military justice and other Israeli accountability mechanisms.[4]

Prime Minister Benjamin Netanyahu announced the establishment of a special, independent public commission on June 13, 2010; the government formally established it on June 14, following the May 31 Gaza flotilla incident.[6][1] Its initial mandate covered the security circumstances behind the naval blockade, the blockade’s legality, the legality of its enforcement, and the actions and identities of the flotilla’s organizers and participants.[1] It also included examining whether Israel’s mechanisms for investigating alleged violations of the laws of armed conflict conformed to international law, a responsibility ultimately addressed in the second report.[1]

Retired Supreme Court Justice Jacob Turkel chaired the commission, whose original members also included Professor Shabtai Rosenne and retired General Amos Horev.[4] Rosenne was an international-law professor and former diplomat, while Horev had served as president of the Technion.[6] Two foreign observers joined the inquiry: Lord David Trimble, a former first minister of Northern Ireland and Nobel Peace Prize laureate, and Brigadier General Kenneth Watkin, a former judge advocate general of the Canadian Forces.[6][2] Their participation accompanied, rather than replaced, the commission’s Israeli membership.[4]

The membership expanded in July 2010 with the addition of Ambassador Reuven Merhav and Professor Miguel Deutch.[4] Rosenne died on September 21, 2010, and no replacement was appointed; Turkel was instead given an additional vote in the event of a tie.[4] Watkin resigned as an observer in April 2011, and Professor Timothy McCormack was appointed to replace him in June.[4] The observers participated actively in sessions and deliberations, although the government’s appointment resolution did not give them voting rights.[4]

During its early work, the commission sought correspondence concerning the decision to impose the Gaza blockade and documentation relating to the flotilla takeover from Defense Minister Ehud Barak, Attorney General Yehuda Weinstein, and retired Brigadier General Giora Eiland.[7] The original arrangements did not require military personnel to testify; the Israel Defense Forces was to supply summaries of the separate Eiland investigation.[6] The commission’s subsequent first-report account nevertheless described extensive written testimony from personnel directly involved in the operation, alongside other testimony and documentary evidence.[1]

The first part of the report was submitted to the government on January 23, 2011, and was nearly 300 pages long.[5][2] Trimble and Watkin accompanied it with a letter expressing confidence in the commission’s independence and the rigor of its report.[2] Part Two was published on February 6, 2013, addressing the broader investigation mechanisms rather than repeating the first report’s examination of the interception.[3]

For the first report, the commission heard 26 testimonies over 15 days of hearings, as well as 11 testimonies in camera, and reviewed more than 150 files of exhibits and thousands of audio and video clips.[1] It obtained written testimony from 38 directly involved Israeli personnel and further material from additional groups of 20 and 23 personnel.[1] Examining the blockade led the inquiry into Israel’s land-crossings policy and Gaza’s humanitarian situation, while examining the takeover required detailed, minute-by-minute consideration of individual personnel’s actions.[1]

The commission stated that its evidence came mainly from Israeli sources after invitations to the Mavi Marmara’s captain, the IHH leader, Turkish authorities, and British participants did not produce testimony.[1] It said that it cross-checked the material it received.[1] At the press conference accompanying the report, Turkel said the inquiry had received extensive video footage and photographs from flotilla participants and other parties, and that an offer to obtain witnesses’ evidence from the United Kingdom by video conference had received no response.[5] He described the commission’s task as an effort to “fully investigate the truth, even if it was difficult and painful.”[5]

The first report described a flotilla of six vessels carrying approximately 700 people in total.[1] During the takeover of the Mavi Marmara, nine passengers were killed, 55 passengers were wounded, and nine Israeli soldiers were wounded.[1] Passengers attacked Israeli marines, and three Israeli soldiers were abducted and held below deck for a time during the confrontation.[2] The report examined both the broader decision to intercept the vessels and the individual encounters in which force was used.[1]

On the blockade’s legal setting, the commission concluded that the conflict between Israel and Gaza was an international armed conflict and that Israel’s effective control of Gaza had ended with the 2005 disengagement.[1] It found the naval blockade imposed on January 3, 2009, lawful and identified its principal purpose as military and security-related, including preventing weapons and other military resources from reaching Gaza.[1] It further concluded that the blockade did not constitute collective punishment and that Israel had complied with humanitarian-law obligations concerning starvation, essential supplies, and medical supplies.[1]

The report linked the naval blockade and land-crossing policy to limiting Hamas’s ability to conduct operations against Israel.[5] Among the figures cited in its reasoning was a decline in missile attacks from 3,278 in 2008 to 165 in 2010, with the latter figure measured as of October 7.[5] Its account also reported knives and large sums of cash found on some IHH activists, no firearms other than those taken from Israeli troops, and no humanitarian supplies found in searches of the Mavi Marmara.[5]

The commission concluded that international humanitarian law justified intercepting and capturing the flotilla vessels in international waters.[1] Its reasoning referred to the vessels’ location and announced destination, the organizers’ and participants’ stated intention to breach the blockade, and the captains’ refusal to change course for Ashdod.[1] It therefore assessed the interception as an enforcement action connected to a lawful naval blockade, rather than treating the vessels’ presence outside the blockade zone as independently decisive.[1]

According to the report’s reconstruction, the Mavi Marmara takeover began at 4:26 a.m.; an initial attempt to board from speedboats failed amid resistance, after which soldiers fast-roped from helicopters.[1] The commission considered fast-roping an internationally recognized way of limiting potential civilian casualties compared with using armed force against the vessel itself.[1] It concluded that Israeli personnel acted professionally in the face of extensive and unanticipated violence.[8]

The examination distinguished the overall operation from particular uses of force: of 133 incidents examined, 127 appeared to conform with international law, while six lacked sufficient information for a determination.[8] Three of those six involved live fire and three involved physical force.[8] The commission described most uses of force as warning or deterring fire and the use of less-lethal weapons.[8] Its overall assessment was that “it seems that the soldiers did not overreact,” while its case-by-case analysis preserved the unresolved status of the six incidents.[2][8]

Planning had not anticipated significant violent resistance, a failure that affected tactics, rules of engagement, and training, but the commission did not find that this planning failure itself breached international law.[8] A separate IDF inquiry concluded that live fire was justified while criticizing organizational and intelligence failures to prepare for the violence encountered from some passengers.[9] These were separate assessments, even though both addressed the relationship between the anticipated operation and the confrontation that occurred.[8][9]

The second report examined whether Israel’s general investigation mechanisms, and the mechanisms applicable to complaints relating to May 31, 2010, conformed to international law.[4] Its principal focus was international humanitarian law, but it also considered relevant human-rights law, international criminal law, state responsibility, Israeli constitutional and administrative law, and rule-of-law principles.[4] The inquiry was primarily prospective: it considered how complaints should be examined and investigated rather than deciding those questions anew in particular cases.[4]

For this phase, the commission heard 16 testimonies over five days, four in camera, and held four additional meetings to obtain material.[4] Witnesses included government and military legal officials, security agencies, human-rights organizations, and international-law researchers.[4] Only two family members of a person killed during an IDF operation came forward to testify as complainants.[4] The commission also reviewed a requested sample of approximately 60 cases and selected ten for detailed examination, acknowledging that this selection could not provide a comprehensive picture but could help illuminate how the mechanisms operated in practice.[4]

Comparative research covered the United States, Canada, Australia, Britain, Germany, and the Netherlands.[3] The commission concluded that Israel’s mechanisms generally complied with its international obligations and that the military justice system possessed sufficient independence to conduct effective investigations.[3] Nevertheless, it identified grounds to amend mechanisms, change policies, and publish written guidelines, setting out eighteen recommendations rather than treating general compliance as a reason to leave existing arrangements unchanged.[4]

A central legal distinction concerned force used in the conduct of hostilities and force used for law enforcement.[10] The commission explained that the former was governed by international humanitarian law and the latter by human-rights law; during occupation, law-enforcement norms were the default unless the activity qualified as direct participation in hostilities.[10] It emphasized the practical difficulty of classification, observing that “separating the law enforcement role from the conduct of hostilities aspect of an insurgency is neither factually nor legally simple.”[10] The applicable classification depended on the circumstances.[10]

The report also found that international law, human-rights law, and international criminal law required an investigation whenever there was reasonable suspicion of a war crime.[11] Such an investigation should be criminal, although it could also be conducted by a commission of inquiry.[11] Recommendations concerning preliminary assessment, decision-making deadlines, and investigative independence addressed the process through which suspicions would be identified and taken forward.[4][11]

On legislation, the commission recommended closing gaps between international prohibitions and Israeli criminal law, including legislation prohibiting war crimes under the laws of armed conflict.[11] It proposed defining the direct criminal responsibility of commanders and civilian superiors who failed to take reasonable measures to prevent offenses by subordinates or, after learning of them, to bring those responsible to justice.[11] It also recommended putting all military directives in writing.[3]

For preliminary examination, the commission proposed a separate fact-finding assessment mechanism alongside the IDF’s operational inquiries.[3] This mechanism would address incidents in which additional information was needed before deciding whether reasonable suspicion of a criminal offense existed.[3] The proposal accompanied a broader recommendation to change the practice of relying on an operational debrief to determine whether an IDF investigation should be opened.[4] The proposed mechanism would operate outside the operational chain of command and draw on expertise in military operations, international law, and investigations so it could provide the Military Advocate General with information rapidly.[12]

The report recommended setting a short deadline for the Military Advocate General to decide whether to open a criminal investigation into suspected violations of the laws of armed conflict.[11] It also proposed removing the requirement to consult the responsible regional commander and requiring reasons when a decision was made not to investigate.[11] To strengthen institutional independence, it recommended legislating the Military Advocate General’s professional independence, an appointment process based on a public committee’s recommendation, and a six-year term.[11]

Civilian oversight and nonmilitary complaints formed another substantial part of the recommendations.[4] Proposals included expanding civilian oversight and establishing an international-law unit in the Justice Ministry.[3] The commission recommended transferring investigation of complaints by people interrogated by the General Security Service to the Justice Ministry’s Police Investigation Unit and providing full visual documentation of GSS interrogations.[3] Its recommendations also addressed reporting duties, transparency, oversight and review, complaints against police, security-service interrogators and wardens, complaints concerning civilian officials, and implementation.[4]

Following the second report, the Israeli government established a professional team led by Joseph Ciechanover in 2014 to recommend practical measures for implementing the commission’s recommendations.[13] The team’s report, released in September 2015, assessed Israel’s internal mechanisms for investigating and prosecuting alleged war crimes as sufficient and unbiased overall.[13] This implementation process extended the commission’s work beyond the publication of its legal conclusions to consideration of specific institutional measures.[13]

A Fact Finding Assessment Mechanism was subsequently established and activated during Operation Protective Edge.[12] The mechanism was headed by a major-general and staffed by operational and legal experts, mostly reservists; it began work about two weeks into the operation, and the Military Advocate General referred approximately 100 incidents to it for examination.[12] That account links a concrete investigative arrangement to the commission’s proposal for obtaining information separately from operational debriefing.[12]

The commission’s legal analysis also appeared in subsequent judicial discussion outside Israel: an English High Court judgment reproduced its explanation of the distinction between the conduct of hostilities and law-enforcement activity.[10] The passage addressed the different legal frameworks governing force and the circumstances affecting classification, rather than simply repeating the first report’s conclusions about the flotilla.[10] The two reports thus supplied both an incident-specific legal assessment and a detailed examination of investigative duties and institutional design.[1][4]

Other inquiries reached different conclusions about aspects of the incident’s legality.[14] The UN Secretary-General’s Palmer panel agreed that the naval blockade was legal but characterized the enforcement operation as excessive and unreasonable, criticizing boarding far from the blockade zone without a final immediate warning and the failure to reassess options after the initial resistance.[14][15] It recommended trying nonviolent options first, while acknowledging that it was not a court, lacked coercive powers, and could not make definitive findings of fact or law.[14] Turkey’s national commission considered both the blockade and boarding unlawful, and Turkish Palmer-panel member Süleyman Özdem Sanberk dissented on the blockade and other issues.[14]

The UN Human Rights Council fact-finding mission alleged that Israeli security forces summarily executed six of the nine passengers killed; Netanyahu’s office rejected its report as “biased” and “distorted.”[9] Turkish Prime Minister Recep Tayyip Erdoğan rejected the Turkel report’s credibility, stating, “In my judgment there is no value or credibility to this report,” while Ankara demanded an Israeli apology.[2] In a further legal disagreement, the ICC prosecutor’s 2014 preliminary examination rejected the commission’s characterization of violent IHH activists as civilians directly participating in hostilities and therefore legitimate military targets.[16] The prosecutor considered them protected civilians, while recognizing that force against violent civilians might be justified in self-defense, requiring further examination at a later investigative or trial stage.[16]

Political and operational scrutiny also remained distinct from the commission’s legal findings.[17] Netanyahu and Barak gave differing accounts of whether the seven-minister forum discussed operational matters, with Barak saying it did but that radical violent resistance aboard the Mavi Marmara had not been discussed.[18] In June 2012, the State Comptroller separately criticized Netanyahu, Barak, and IDF planning, describing a hasty meeting without adequate preparation and insufficient operational options; it cautioned that these defects did not establish that the outcome could have been different.[17] Later, civil-society groups criticized the Ciechanover report for postponing a decision on explicitly incorporating commanders’ and civilian superiors’ responsibility into Israeli law.[13]