Investigation or Whitewash?

Can Israel be counted on to investigate itself honestly and impartially? With Prime Minister Benjamin Netanyahu rejecting proposals for an international probe into the killing of nine pro-Palestinian activists aboard the Mavi Marmara last week, an Israeli inquiry—possibly to include American observers—now appears to be the most likely scenario (an Israeli military investigation is already underway). But that doesn’t necessarily spell whitewash. Israeli commissions have been known to castigate governments for their blunders and misdeeds over the years. Occasionally, they’ve even recommended punitive measures against top-echelon officials. The most famous example is the Kahan Commission, which ruled that Israel bore indirect responsibility for the massacre of hundreds of Palestinians by Christian militiamen in Lebanon in 1982. It forced the defense minister at the time, Ariel Sharon, to step down. More recent investigations have been less hard-hitting.

In determining whether the upcoming Israeli probe will be serious and consequential, here are three things to look for:

What will the commission investigate? Netanyahu will want to limit the mandate to the events on the ship—which tried to bust through Israel’s blockade on Gaza—and possibly to the intelligence lapse that led Israel to believe activists on board would engage solely in passive resistance. In that narrow space, blame, if any, could only be assigned to the navy men who took part in the operation and the officials who supplied the intelligence. For most of the world, that kind of mandate would probably cast a pall over the entire proceeding. A more serious investigation would examine the government’s decision-making process in the lead-up to the operation. Specifically, it would try to determine whether the operation in international waters was legal, whether Netanyahu and his cabinet ministers considered alternatives to the use of force, whether they took into account how the operation would affect Israel’s standing in the world and its relationship with allies, whether experts were consulted, and so on. Some legal experts, including Hebrew University law professor Mordechai Kremnitzer, believe investigators should also look at the Gaza blockade itself and consider whether the three-year-old policy comports with international law, and whether it has been effective in achieving Israel’s goals.

Who will do the investigating? Netanyahu will want friendly lawyers and hawkish military officers leading the probe. His government has already selected a politically connected general, Giora Eiland, to oversee the investigation for the military. But the most hard-hitting probes in Israel’s short history have been led by Supreme Court judges and staffed by people of their choosing. Yitzhak Kahan, who led the Sabra and Shatilla probe, was the sitting president of the Supreme Court in 1982, as was Shimon Agranat when he led the inquiry that brought about the collapse of the Israeli government after the 1973 war. Unlike lower-level panels, judicial inquiries have not shied away from assigning responsibility to particular political figures. And since the Supreme Court is one of the most respected institutions in the country, its recommendations are harder for politicians to ignore.

Who will be questioned? The Israeli defense ministry has already ruled out having the navy men who took part in the operation go before a panel, a decision Netanyahu could surely countermand if he wanted. It’s not clear whether more-senior military officers, including the head of the navy and the chief of the general staff, will be questioned. The more people Israeli shields from the investigation, the harder it will be for the commission to draw real conclusions and to be taken seriously abroad. Israeli Defense Minister Ehud Barak, himself a former army chief, says the ban is designed to protect the soldiers. But Kremnitzer, the law professor, says Barak might have other motives. One cannot ignore the suspicion that when the minister of defense says he wants to protect the soldiers, he’s mainly thinking about protecting himself.

If Netanyahu had his way, Israel would undoubtedly dispense with the probe altogether. But investigating itself, thoroughly and responsibly, is probably Israel’s only way of heading off a U.N. inquiry akin to last year’s Goldstone Commission. And since Israelis are still reeling from the Goldstone report, there’s a chance, at least, that an Israeli commission will ask the right questions about the Mavi Marmara operation and make serious recommendations.