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1. The Human Rights Council, in its resolution 13/9, decided, in the context of the follow-up to the report of the United Nations Fact-Finding Mission on the Gaza Conflict (A/HRC/12/48, hereinafter the FFM report), “to establish a committee of independent experts in international humanitarian and human rights laws to monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side, in the light of General Assembly resolution 64/254, including the independence, effectiveness, genuineness of these investigations and their conformity with international standards”. In accordance with this directive, the Committee of independent experts (hereinafter the Committee) submitted its first report to the Council (A/HRC/15/50) at its fifteenth session.
2. Thereafter, in its resolution 15/6, the Human Rights Council decided “to renew and resume the mandate of the Committee of independent experts, established pursuant to Council resolution 13/9”. The Council requested that the Committee submit its updated report to the Council at its sixteenth session.
3. The United Nations High Commissioner for Human Rights appointed Judge Mary McGowan Davis, a former Justice of the Supreme Court of the State of New York and former federal prosecutor, as Chair of the Committee. The other member was Judge Lennart Aspegren, formerly a Judge at the Svea Court of Appeal, Director-General for Legal and International Affairs at different Swedish Ministries, Justice at the Supreme Social Insurance Court, and Judge at the International Criminal Tribunal for Rwanda .
4. The Office of the United Nations High Commissioner for Human Rights (OHCHR) established a secretariat to support the Committee.
5. The present report is submitted to the Human Rights Council pursuant to its resolution 15/6.
II. Mandate and methodology
6. The Committee, in its initial report (A/HRC/15/50) submitted to the Human Rights Council at its fifteenth session, interpreted its mandate by reading Human Rights Council resolution 13/9 in conjunction with General Assembly resolution 64/254, in which the General Assembly reiterated its call upon the Government of Israel and the Palestinian side to conduct investigations “that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the [United Nations] Fact-Finding Mission [on the Gaza conflict], towards assuring accountability and justice”. As set forth in that report, the Committee understood “domestic, legal or other proceedings” to refer to investigations, disciplinary proceedings and prosecutions undertaken by either military or civil justice systems in Israel and on the Palestinian side. Although the Committee’s primary focus was on proceedings related to the serious violations alleged in the FFM report, it determined that its mandate was not restricted to these events and that it could review proceedings pertaining to “any incident connected to the military operations in Gaza” (A/HRC/15/50, para. 6).
7. Regarding the temporal scope of the mandate, for the current phase of its work the Committee has concentrated on identifying and analyzing relevant information issued or released since the filing of its first report in September 2010.
8. Taking into account that the Human Rights Council in its resolution 15/6 “renews and resumes” the mandate of the Committee, the Committee understands its current mandate to be exactly as previously defined and reported to the Council.
9. Following the renewal of its mandate, the Committee updated its terms of reference in order to reflect its approach to the assignment given to it by the Council. The Committee further established its working methodology.
10. Specifically, the Committee sought to discharge its mandate by analyzing information in the public domain and by supplementing this information through consultations with identified stakeholders.
11. The Committee undertook a mission to Amman on 20 and 21 February 2011 to meet with Palestinian officials and non-governmental organizations (NGOs). While the Committee had planned to carry out a separate mission to Gaza, it was unable to gain access to Gaza through Israel, due to the lack of authorization from the Government of Israel, or through Egypt, in view of the security situation prevailing there during the weeks preceding the preparation of the present report.
12. The Committee continues to view the relevant government authorities as among the most important sources of information about the progress of investigations called for by the General Assembly and sought their cooperation from the initial stages of its work.
13. On 13 January 2011, the Committee wrote to the Permanent Representative of Israel requesting a meeting and met with him on 26 January 2011. Although the Permanent Representative received the Committee members most cordially, he explained that it was the policy of the Government of Israel to refuse to cooperate with any aspect of the “Goldstone process”. Further, he relayed his Government’s denial of the Committee’s request for permission to enter Israel in order to speak to government officials and victims of rocket attacks launched from Gaza, and to access the West Bank and Gaza through Israel to interview victims and relevant authorities with respect to the operations in Gaza codenamed by Israel “Operation Cast Lead”.
14. On 13 January 2011, the Committee wrote to the Permanent Representative of the Permanent Observer Mission of Palestine seeking a meeting and on 26 January 2011 the Committee met with him. With the assistance of the Permanent Observer Mission, the Committee held discussions in Amman with the Minister of Justice, the General Prosecutor, and the Chairman and two members of the Palestinian Independent Investigation Commission established pursuant to the FFM report. As a follow-up to these discussions, on 3 March 2011, the Committee wrote to the General Prosecutor and the Minister of Justice requesting additional information. On 10 March 2011, the Minister of Justice submitted supplemental materials. Likewise, the General Prosecutor forwarded documents on 10 March 2011 related to criminal investigations undertaken by his office. The Committee also held a teleconference on 10 March 2011 with members of the Palestinian Independent Commission for Human Rights (ICHR).
15. The Committee is grateful to the Palestinian Authority for the extensive cooperation provided throughout its term.
16. In addition, to obtain the fullest information available on investigations undertaken by the Palestinian side, the Committee contacted the de facto authorities in Gaza on 24 February 2011 requesting specific information on investigations undertaken in response to the FFM report. On 8 March 2011, the de facto authorities asked the Committee for additional time in which to submit the information and the Committee agreed to extend the deadline. The de facto Gaza authorities sent a document on 13 March, with two annexes, in response to the Committee’s detailed list of questions.
17. The Committee met with a number of NGO representatives in Geneva on 27 January 2011 and in Amman on 20 and 21 February 2011. NGOs also made written submissions to the Committee and during teleconferences with the Committee members further documented incidents they had brought to the attention of authorities in Israel and on the Palestinian side.
18. The Committee also interviewed Israeli and Palestinian victims and witnesses. On 9 and 14 March 2011, the Committee held video- and teleconferences with Israeli victims and witnesses, who provided information on the human and material damage suffered as a direct consequence of rocket attacks launched from the Gaza Strip. These individuals described their injuries and the continuing physical and psychological effects of living near the border in constant apprehension of further attacks. They also noted their complete inability to gain redress for these crimes.
19. On 15 March 2011, the Committee held video- and teleconferences with Palestinian victims, who recounted their first-hand experience with Israeli criminal investigations into incidents reported by the FFM. These witnesses detailed their frustration with the Israeli investigating authorities and gave articulate voice to their perception that Israeli justice mechanisms were completely ineffective and non-existent. Although these victims and witnesses had suffered serious injuries during Operation Cast Lead and had cooperated fully with investigators, after two years they have heard absolutely nothing with respect to the status of their cases – apart from one family that had learned in an official government report that the criminal investigation into the killing of their young children had been closed without elucidation of the circumstances that led to such a tragedy.
20. On 25 February 2011, the Committee held a teleconference with Noam Shalit, who reminded the Committee of the continuing isolation and captivity of his son, Gilad Shalit, who has had no communication with his family, nor has he been allowed visits by the International Committee of the Red Cross to monitor his detention conditions since he was captured and detained during an incursion into Israel in June 2006. Mr. Shalit expressed concern about the psychological and physical well-being of his son after five years in detention and appealed for his immediate release.
21. The totality of this information has provided the basis for the Committee’s efforts to implement its mandate “to assess domestic, legal or other proceedings undertaken by Israel and the Palestinian side.”
22. The Committee carried out its work under considerable challenges and constraints. In particular, given that the Committee did not travel to Israel, the West Bank or Gaza, it was unable to meet with a number of persons who could have supplied first-hand, updated information as to the status and impact of investigations and legal proceedings undertaken by the respective parties into the violations alleged in the FFM report. Moreover, the Committee worked under strict time limitations in order to meet the time frame imposed on it by the Human Rights Council.
III. Applicable law and standards
23. In its previous report to the Human Rights Council (A/HRC/15/50), the Committee extensively analyzed the legal framework and standards applicable in the context of the Committee’s mandate. In the Committee’s view, that legal analysis remains valid and does not require further elaboration.
IV. The Government of Israel
A. Investigations conducted
1. Military operations in Gaza
24. According to available information, the Government of Israel has conducted some 400 command investigations in relation to Operation Cast Lead. Reports indicate that the Military Advocate General (MAG) has opened 52 criminal investigations into allegations of wrongdoing.1 Of these 52 investigations, thus far three cases have been submitted to prosecution; two have resulted in convictions, while the trial of one case is still ongoing.
25. Focusing on incidents discussed in the previous report, the Committee could ascertain significant changes in the status of only two cases since September 2010. The first change concerns the completed inquiry into the alleged shooting and killing of Matar Abu Halima (aged 17) and Muhammad Hekmat Abu Halima (aged 16), and the wounding of Omar Abu Halima, on 4 January 2009 (A/HRC/12/48, paras. 788-801). The incident reportedly occurred as the young men were transporting wounded family members to the hospital and after they had complied with soldiers’ orders to stop (ibid., para. 800). Notwithstanding difficulties created by discrepancies in testimonies given by Israeli Defence Forces (IDF) soldiers, the MAG ultimately concluded that the soldiers “acted lawfully in light of a perceived threat”.2 In addition, an apparently extensive investigation into allegations that earlier on the same day the family home had been hit by a white phosphorous shell, killing five and injuring four – which included interviews with family members present at the time of the alleged shelling, consultations with technical experts, and a review of medical records – ended with the determination that “it was unclear what ammunition had hit the house and who had launched it”.3
26. The second case refers to the killing of Majda and Rayya Hajaj (see A/HRC/12/48, paras. 764-769). The Committee learned that a soldier was indicted before a military court on charges of manslaughter in relation to the deliberate targeting of an individual waving a white flag, without orders or authorization to do so.4 The indictment reportedly refers to the death of an unknown person, as the evidence gathered did not establish sufficient connections between the information provided in Palestinian testimonies – that the shooting victims at Juhr ad-Dik on January 4, 2009 were the two Hajaj women – and the admissions made by the soldier – which referred to the killing of a single man.5 According to media reports, the trial was opened on 1 August 2010 but the reading of the indictment was immediately postponed at the request of the defense,6 which demanded that the trial be suspended while the Military Police pursue allegations that an IDF officer had attempted to block the investigation by not submitting the results of a probe into the incident to his superior officers and to the MAG.7 The trial is currently in recess while the authorities investigate further.
27. The Committee does not have sufficient information to establish the current status of the ongoing criminal investigations into the killings of Ateya and Ahmad al-Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni. This is of considerable concern: reportedly 24 civilians were killed and 19 were injured in the related incidents on 4 and 5 January 2009 (A/HRC/12/48, paras. 706 to 744). Furthermore, the events may be connected both to the actions and decisions of soldiers on the ground and of senior officers located in a war room, as well as to broader issues implicating the rules of engagement and the use of drones. There are also reports indicating that the MAG decision to investigate was opposed by the then head of the IDF southern command.8 Media reports further inform that a senior officer, who was questioned “under caution” and whose promotion was put on hold,9 told investigators that he was not warned that civilians were at the location.10 However, some of those civilians had been ordered there by IDF soldiers from that same officer’s unit, and air force officers allegedly informed him of the possible presence of civilians.11 Media sources also report that the special command investigation, initiated 10 months after the incidents,12 did not conclude that there had been anything out of the ordinary in the strike.13 As of 24 October 2010, the MAG had apparently not determined whether or not the officer would stand trial.14
28. The Committee notes that the MAG is apparently reviewing the completed special command investigation into the treatment of Palestinian detainees and is evaluating whether criminal or disciplinary measures are necessary. The Committee understands that this command investigation examined broad issues related to the treatment of Palestinian detainees,15 including those related to the Al-Atatra sandpits (A/HRC/12/48, paras. 1112-1176), and that specific allegations of torture and ill-treatment remain under investigation by the Military Police.16
29. The Committee has discovered no information relating to four incidents referred to in the FFM report: incident AD/02 (paras. 1127-1142); incident AD/06 (para. 1107); the attack on the Al-Quds hospital (paras. 596-629); and the attack on the Al-Wafa hospital (paras. 630-652). Nor has the Committee uncovered updated information concerning the status of the criminal investigations into the death of Muhammed Hajji and the shooting of Shahd Hajji and Ola Masood Arafat (A/HRC/12/48, paras. 745-754); and the shooting of Ibrahim Juha (ibid., paras 755-763). Accordingly, the Committee remains unable to determine whether any investigation has been carried out in relation to those incidents.
30. The Committee also conducted an assessment of specific inquiries into the use of human shields that were not explicitly mentioned in the FFM report. The Committee recalls that the Government of Israel reported that t he MAG had directly referred for criminal investigation all allegations that civilians were used as human shields or compelled to take part in military operations.17 I n his April 2010 report on children and armed conflict, the Secretary-General noted that the MAG was investigating reports of seven Palestinian children used by Israeli soldiers as human shields in three separate incidents during the Gaza conflict (A/64/742-S/2010/181, para. 101). The outcome of the investigations into two of these incidents is unknown. The other investigation was opened in June 2009 on the instructions of the MAG following a complaint by Defence for Children International.18 According to media reports, two soldiers forced a boy to search bags suspected of being booby trapped and were convicted of offenses including inappropriate behavior and overstepping authority.19 Both soldiers were demoted and received suspended sentences of three months each.20
31. It should be noted that while some media reports described the conviction as a credit to the IDF, a former IDF deputy chief of staff reportedly said that the soldiers’ criminal records should be cleared and that such events should be probed inside the units and not in interrogation rooms.21 The boy’s mother apparently indicated her disappointment over the decision to suspend the prison terms and expressed concern at the message that such a lenient sentence would send to IDF soldiers.22 Reportedly, in the ruling, the judges condemned the actions of the soldiers, but they also gave weight to issues such as the contribution of the soldiers to Israel’s security and their personal circumstances, and concluded that the soldiers “did not seek to degrade or humiliate the boy”. 23
32. The Committee does not have sufficient information to comment definitively on this judgment, although it is hard to square the apparent finding that the soldiers “did not seek to degrade or humiliate the boy” with evidence that they intended to put him directly in harm’s way at grave risk to his life. The Committee is mindful of other judicial decisions, such as the case of the soldier who was sentenced to a prison term of seven and a half months for stealing a credit card during the operation in Gaza, where a harsher penalty was imposed for acts that did not entail danger to the life or physical integrity of a civilian, much less to a 9-year-old child.
2. West Bank
33. The FFM analyzed the general situation in the West Bank and pointed to a series of incidents that were not directly related to the military operations in Gaza but nonetheless required investigation by Israel (A/HRC/12/48, paras. 1381-1440). In its previous report, the Committee indicated that the record before it was silent as to whether or not Israel had conducted investigations into allegations of human rights violations in the West Bank, including in relation to the alleged use of force during demonstrations and violence by settlers at the time of the events in Gaza (A/HRC/15/50, para. 62). Recent information indicates that Israel has in fact investigated 14 such incidents, 11 of which were referred to in the FFM report.24 Of those 14 investigations, two criminal indictments have been filed, six investigations are ongoing, and six cases were closed without charges. 25
34. The first indictment refers to the alleged killing of 10-year-old Ahmed Husam Yusef Musa in Ni’lin on 29 July 2008 by a member of the Israeli Border Police (A/HRC/12/48, para. 1388). A second criminal indictment was filed in relation to an incident in which three members of the al-Matariyeh family were allegedly shot and injured by an Israeli settler in Hebron in December 2008 (ibid., para. 1385). However, the indictment was withdrawn in light of a Supreme Court decision requiring that the Prosecutor disclose information classified for national security reasons. The Prosecutor reportedly decided to withdraw the case after the defendant’s attorney requested that the Court order that the information be revealed.
35. Concerning ongoing investigations, the Military Police and the Israeli Police are carrying out parallel criminal investigations into the killing of Basam Abu Rahma on 17 April 2009 in Bi’lin 26 during a peaceful demonstration against the Wall (see A/HRC/12/48, para. 1395 ) . This incident was filmed and Mr. Rahma is reportedly seen standing on a small hill, clearly visible and not armed or otherwise posing a threat (ibid.). The Committee learned that the MAG had ordered a criminal investigation after representations from the family’s attorney that the issue would be raised with the Supreme Court and taking into account expert opinion based on viewing a film of the incident. An earlier decision not to launch a criminal investigation was apparently based on statements given by soldiers in the operational debriefing.27 According to media reports, the decision to open a criminal investigation was announced in July 2010, more than one year after the incident.28
36. A criminal investigation is also reportedly being conducted into the killing of 'Iz a-Din Radwan Radwan al-Jamal on 13 February 2009 in Hebron. According to reports, the criminal investigation was opened following the finalization of a command investigation.29
37. Finally, an investigation by the military police was conducted into the alleged killing of Yasser Tmeizi by the IDF at Tarqumiyah checkpoint on 13 January 2009. The results of the investigation were apparently sent to the MAG in August 2009.30 Reports indicate that, after almost two years, the results of the investigation are still under review by the MAG.
3. Other investigations
38. As the Committee indicated in its previous report (A/HRC/15/50, para. 42), the Government of Israel established a public commission – known as the Turkel Commission – to examine the maritime incident of 31 May 2010. The Commission – which includes two international observers – was mandated, inter alia, to examine the question whether the “mechanism for examining and investigating complaints and claims raised in relation to violations of the laws of armed conflict, as conducted in Israel generally, … conform with the obligations of the State of Israel under the rules of international law”. 31
39. The Committee considers that the work of the Turkel Commission is directly relevant to its own mandate, because it is evidence that Israel does have a mechanism for carrying out inquiries into decisions and policies adopted by high-level officials. (The Committee focused exclusively on the process and methodology agreed upon by the Turkel Commission; it did not address – and does not endorse – the substance of the Commission’s analysis and conclusions with respect to the flotilla incident.) It notes that Commission members interviewed and actively questioned a number of high-level officials, including the Prime Minister, the Defense Minister, the Chief of General Staff, the Chief Military Advocate, and members of Parliament, as well as representatives of human rights organizations. An analysis of the transcripts of the public hearings demonstrates that the Commission members – with active participation from the international observers – thoroughly examined the controversial legal and political issues presented for their consideration. The Turkel Commission issued part one of its report on 21 January 2011. Part two of the report, which will address the effectiveness of Israel’s mechanism for investigations, will be issued later in 2011.
1. Independence and impartiality
40. The Committee noted in its previous report that Israel’s military justice system provides for mechanisms to ensure its independence, in particular the fact that the MAG is not hierarchically subordinate to the Chief of General Staff and that his decisions are subject to review by the Attorney-General and by the Supreme Court (A/HRC/15/50, para. 52). The Committee has not received any new evidence that challenges this finding.
41. The Committee further noted that notwithstanding the built-in structural guarantees to ensure the independence of the MAG, his dual responsibilities as legal advisor to the Chief of Staff and other military authorities, and his role as supervisor of criminal investigations within the military, raise concerns in the present context given allegations in the FFM report that those who designed, planned, ordered and oversaw the operation in Gaza were complicit in international humanitarian and human rights law violations (A/HRC/12/48, para. 1895). It is notable that the MAG himself, in his testimony to the Turkel Commission, pointed out that the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions. When questioned by Commission members about his “dual hat” and whether his position at the apex of legal advisory and prosecutorial power could present a conflict of interest under certain circumstances, he stated that “the mechanism is calibrated for the inspection of individual incidents, complaints of war crimes in individual incidents … This is not a mechanism for policy. True, it is not suitable for this”.32 Therefore, the Committee remains of the view that an independent public commission – and not the MAG office – is the appropriate mechanism for carrying out an independent and impartial analysis, as called for in the FFM report, into allegations that high-level decision-making related to the Gaza conflict violated international law.
2. Promptness 33
42. The Committee has previously expressed reservations as to whether Israel’s investigations into allegations of misconduct have been sufficiently prompt (A/HRC/15/50, para. 51). In particular, the Committee remains concerned about the fact that unnecessary delays in carrying out such investigations may have resulted in evidence being lost or compromised, or have led to the type of conflicting testimony that characterized the investigations into the killings of Majda and Raayya Hajaj (ibid.) and the inconclusive findings reported with respect to the tragic deaths of Souad and Amal Abd Rabbo and the grave wounding of Samar Abd Rabbo and their grandmother Souad (see A/HRC/12/48, paras. 770-779).
43. The Committee is fully aware of the difficulties involved in investigating alleged violations that occurred in a situation of combat, in particular when it comes to the collection of evidence, interviewing witnesses and victims, and the accurate establishment of the facts, often in the absence of sufficient forensic tools. Yet, while acknowledging the complexity and difficulty of the challenges presented to investigators in the wake of the numerous allegations of wrongdoing by IDF soldiers during the Gaza conflict, it is worth noting that out of 36 incidents related to Gaza referred to in the Committee’s previous report, more than one third remain unresolved or with an unclear status two years after the events took place. That situation raises serious concern as to whether the existing mechanisms are capable of insuring that investigations are conducted in a prompt manner. Presumably this is an issue that is under careful review by the Turkel Commission and will be addressed in part two of its report.
44. The promptness of an investigation is closely linked to the notion of effectiveness. An effective investigation is one in which all the relevant evidence is identified and collected, is analyzed, and leads to conclusions establishing the cause of the alleged violation and identifying those responsible. In that respect, the Committee is concerned about the fact that the duration of the ongoing investigations into the allegations contained in the FFM report – over two years since the end of the Gaza operation – may seriously impair their effectiveness and, therefore, the prospects of achieving accountability and justice.
45. The issue of the transparency of Israel’s investigations is a concern that has been highlighted by a number of different sources and appears to be a matter of some dispute. Thus, in his testimony to the Turkel Commission, the MAG indicated that his office, as a matter of practice, regularly informs claimants and their attorneys about its decisions with respect to the outcome of an investigation. He emphasized that his office advises the complainants and their lawyers of the reasons why his office determines not to pursue a criminal investigation and makes available relevant evidence for their examination in case they wish to file a petition with the Supreme Court.34
46. The Committee notes, however, that consistent reports from NGOs, victims, and their legal representatives reflect that only on rare occasions do they actually receive information from the MAG concerning the status of investigations into their complaints. A number of organizations have informed the Committee that they often found out about the results of inquiries into cases they have filed on behalf of alleged victims either through the press or in the public reports issued by the Government of Israel. Indeed, the Committee received detailed, case-specific information concerning requests for information by different organizations – the great majority of which have gone unanswered. This situation raises serious questions concerning the effective implementation of the reported policy of the MAG to assure transparency in the investigation process.
C. Allegations not investigated
47. The information available to the Committee suggests that not all allegations of violations identified in the FFM report have been adequately investigated. These include allegations related to higher level decisions about the design and implementation of the Gaza operation, including those related to the nature, objectives and targets of the Israeli military in that conflict (see A/HRC/12/48, paras. 1880-1895). The Committee has no new information leading it to change its view that Israel does not appear to have conducted a general review of doctrine regarding military targets. However, it has been informed of media reports suggesting that if criminal charges are brought as a result of the investigation into the al-Samouni case, it is possible that there will be deliberations on the broader question of the rules of engagement that were applied during Operation Cast Lead.35
48. Nor has the Committee uncovered information concerning investigations into certain alleged human rights violations committed in Israel and the West Bank, including allegations of torture, discrimination, lack of access to effective remedies, unlawful detention, violations of the rights to freedom of expression and to peaceful assembly, or alleged violations related to the removal of residency status from Palestinians.
V. The Palestinian side
A. The Palestinian Authority
1. Investigations conducted
49. The Committee noted in its previous report that the Palestinian Authority established the Palestinian Independent Investigation Commission to implement the recommendations of the FFM report (A/HRC/15/50, para. 65). On 13 February 2011, the Commission made a written submission to the Committee, in which it explained the measures taken since September 2010 to follow up on its July 2010 report to the Secretary-General. In particular, the Commission referred to its efforts to establish contacts with the Government of Israel and the de facto authorities in Gaza so as to have access to witnesses and victims and to inspect the sites of rocket attacks on Israeli territory. The Commission indicated that it had not received a positive response either from Israel or from the de facto authorities in Gaza and therefore was not in a position to provide any further update with respect to the rocket attacks on Israel launched from Gaza.
50. The Committee was advised that on 18 October 2010, the Council of Ministers of the Palestinian Authority established a Ministerial Committee to follow up on the recommendations of the Independent Investigation Commission. The Ministerial Committee was mandated to issue recommendations to the Council of Ministers for the implementation of the Commission report and submitted its report – a copy of which was made available to this Committee – to the Council of Ministers in February 2011.
51. The Ministerial Committee recommended a number of short-term strategies that are to be implemented within two months of the adoption of the report. In particular, it called on the General Prosecutor to investigate any allegation of torture or ill-treatment in detention centers;36 it specified that civilians should not be subject to detention by the military justice system, but that all civilian detainees should be transferred to the ordinary civilian justice system; it urged the General Prosecutor to prosecute any official who refuses to implement a court decision, and that any such official should be dismissed from his functions; and it recommended that the Prime Minister issue clear directives instructing all relevant officials that clearance by security services is not a legal requirement for employment in the civil service.
52. With respect to long-term strategies, the Ministerial Committee proposed six recommendations: (a) to establish a Constitutional Court; (b) to adopt an administrative courts act creating first and second instance administrative courts; (c) to amend the prisons act to allow systematic oversight and monitoring by the Ministry of Justice; (d) to enact the Palestinian criminal code; (e) to amend the Palestinian Code of Criminal Procedures to separate investigating functions from prosecution functions; and (f) to adopt legislation to regulate the functioning of the military justice system, criminal offenses, criminal procedure and other issues related to the jurisdictional scope of military justice.
53. In its previous report, the Committee noted that the Independent Investigation Commission had undertaken independent and impartial investigations in a comprehensive manner (A/HRC/15/50, para. 70). The Committee has received no new evidence to challenge this finding. Rather, on the contrary, the Commission has persevered in attempting to investigate the rocket attacks on Israeli territory, as well as other violations allegedly committed in the Gaza Strip, but has not been provided with access to interview the victims or to inspect the scene. Such limitation seriously hampers the adequate fulfillment of its mandate.
54. The Committee finds that since the adoption of the Independent Investigation Commission report, the implementation of the Commission’s recommendations, in particular those related to the obligation to investigate and prosecute allegations of arbitrary detention, torture and ill-treatment, and extrajudicial killings,37 has been limited. The General Prosecutor documented one case in particular, in which five security officers were charged with the murder of an individual detained by the Palestinian security services. In the judgment, the military court acquitted the defendants of all charges in view of the fact that it could not clearly identify the actual perpetrator, but it determined that, at a minimum, the death had resulted from negligence on the part of the security services and, therefore, ordered the payment of compensation to the family of the deceased.
55. Despite this example, the Committee has received no information with respect to the opening of criminal investigations or of prosecutions underway relating to incidents outlined in the FFM or in the Independent Investigation Commission report, since January 2010. For instance, the General Prosecutor provided a list of 326 criminal investigations carried out between 7 January 2010 and 7 March 2011. While this list reflects commendable efforts on the part of the Palestinian Authority to investigate criminal cases, these inquiries appear to be unrelated to the allegations in the FFM report. Accordingly, further efforts should be expended to systematically investigate allegations of extrajudicial killings, of torture and ill-treatment, of unlawful detention, and re-arrests, and of the lack of implementation of Court orders directing the release of unlawfully detained individuals.
56. Notwithstanding the problems listed above, the Committee underscores that the establishment of the Ministerial Committee is a very welcome development. The Ministerial Committee’s report lays down a road map of short- and long-term strategies that go squarely in the direction of implementing the recommendations of the Independent Investigation Commission. Indeed, some positive developments have already taken place. For instance, information provided by the Minister of Justice indicates that on 15 January 2011 a decision was made by the General Prosecutor, the Military Prosecutor and Palestinian security services to transfer all cases of civilians being tried before military courts to domestic criminal courts for prosecution. This change in policy was confirmed by the Palestinian Independent Commission for Human Rights (ICHR). The ICHR represented to the Committee on 10 March 2011 that, since 15 January 2011, no new cases against civilians have been brought before military courts, but it noted that the transfer of existing cases before military courts to civilian courts has still not been fully implemented.
57. Moreover, the General Prosecutor has adopted new rules relating to the monitoring of places of detention by his office.38
58. To underscore the importance of these changes and ensure that they are implemented throughout the West Bank, the Ministerial Committee recommended that the Palestinian President and the Prime Minister should issue timely and clearly defined instructions to all security, judicial and executive services ordering the strict observance of the existing legal framework so that changes that have been accomplished at the policy level actually have consequences in practice. The Committee notes with concern that, according to the ICHR monthly reports, allegations of torture and ill-treatment remained at the same level in the West Bank throughout 2010 and the beginning of 2011. Therefore, much more needs to be done to effectively implement the necessary measures indicated above.
B. The de facto Gaza authorities
59. The Committee requested updated information from the de facto Gaza authorities with respect to measures they have taken in response to the FFM report since September 2010.
60. In their response, the de facto authorities informed the Committee that their officials did not have access to persons involved in the launching of rockets and mortars into Israel, nor to the sites and victims affected by the rockets. The de facto authorities also indicated that since 30 October 2008 all political prisoners have been released. In an annex, the de facto authorities provided a list of 32 names of political prisoners who have reportedly been liberated. The de facto authorities stated that all persons currently under detention are under criminal investigation or have been sentenced to prison terms.
61. Finally, the de facto authorities provided a list of seven cases related to investigations into allegations of torture, injuries or extrajudicial killings. According to the information, four out of those seven cases were discontinued at the request of the victim.39 Of the remaining three cases, one investigation into ill-treatment is still ongoing and two prison sentences were imposed in relation to killings. The de facto authorities provided a detailed list of those cases, including each victim’s name, the name of the alleged perpetrator, the description of the charges, the date of commencement of the inquiry, the status of the investigation, and the description of the penalties imposed.
62. The Committee acknowledges the de facto authorities’ efforts to provide specific information related to criminal investigations into alleged human rights violations committed by their security forces. The Committee is aware of the fact that it is not uncommon for such cases to be resolved to the satisfaction of the families through out-of-court settlements. Nevertheless, the Committee remains concerned that no investigations have been carried out into the launching of rocket attacks against Israel. It considers that the de facto authorities should make genuine efforts to conduct criminal inquiries and to hold accountable those who have allegedly engaged in serious violations of international humanitarian law by firing these rockets.
VI. Other issues of concern
63. After nine months of working with the question of the implementation of the FFM report by Israel and the Palestinian side, the Committee considers it opportune to discuss several issues of concern that it has encountered in the implementation of its mandate and that directly relate to the allegation of the FFM report that there is a “justice crisis” that warrants action (A/HRC/12/48, para. 1958; see more generally pp. 1874-1966).
A. The current context
64. First, it should be noted that the current situation in Israel and the West Bank and Gaza remains tense. The Committee was informed that during the period between 10 December 2010 and 10 March 2011, 78 rockets and 96 mortars were launched against southern Israel, with the vast majority of these attacks taking place during the afternoon hours.40 While the present report was being prepared, a ship allegedly bound for the Gaza Strip transporting munitions was intercepted by Israel, 41 and a family in the West Bank was brutally murdered while asleep.42 Palestinian civilians continue to be injured and killed by Israeli soldiers, and a 65-year-old Palestinian man was killed “by mistake” as he slept in his bed in Hebron in January.43 Meanwhile, Palestinian children are routinely arrested in the middle of the night and taken off to military detention.44 Settler violence against Palestinians and Palestinian violence against Israeli civilians continues in the West Bank. The harsh conditions imposed on Palestinians at checkpoints and border controls, often in humiliating circumstances, feeds the feeling of injustice among the civilian population.45 As recently reported by the High Commissioner for Human Rights in her report on the implementation of Human Rights Council resolutions S-9/1 and S-12/1 covering the period from 4 February to 30 November 2010, the situation is of profound concern and serious violations occur “on a widespread and persistent basis” (A/HRC/16/71, para. 55). As stressed by the General Assembly in its resolution 64/254, there is a “need to ensure accountability for all violations of international humanitarian law and international human rights law in order to prevent impunity, ensure justice, deter further violations and promote peace”. The Committee believes that significant and sustained efforts from the parties concerned are required to achieve accountability and justice.
B. Human rights defenders
65. Second, the Committee is keenly aware that human rights organizations play a vital role in any system of investigating and prosecuting allegations of violations of international law. The Government of Israel has acknowledged that the MAG himself considers the information provided by human rights defenders as an important part of his deliberations about incidents. It has further represented that the Military Police actively seek the help of human rights organizations and Israeli lawyers representing complainants in order to facilitate meetings between Israeli investigators and Gaza residents.46 Similarly, both the Independent Investigation Commission and the de facto Gaza authorities report receiving valuable information from human rights organizations. The Commission engaged in consultations with human rights and other civil society organizations and national figures in relation to its methods of work, identifying potential difficulties, and how to resolve them (A/64/890, annex II, p. 82, para. 64). The Committee itself has obtained invaluable information from NGOs in Israel, the West Bank, Gaza, Geneva, London and New York.
66. The FFM expressed concerns about allegations of hostile retaliatory actions directed at civil society organizations for criticism of the Israeli authorities and for exposing alleged violations of international law during the military operations (A/HRC/12/48, para. 1767) – concerns that appear to be increasingly valid. The Committee has heard a constant refrain from NGOs about the deteriorating climate for human rights defenders in Israel and that this has had a negative impact on their ability to pursue their work. Specifically, the Committee has been informed about an initiative in the Knesset to launch a parliamentary inquiry probing human rights organizations, notwithstanding the Attorney General’s warning that such an inquiry could violate fundamental human rights.47 Similarly, a bill to punish individuals who call for academic or economic boycotts against Israel was reportedly adopted in its first reading by the Knesset,48 and there are efforts underway as well to discourage organizations that seek to hold IDF soldiers accountable for war crimes in international courts.49
67. The FFM also reported allegations that the security services of the Palestinian Authority had interfered with the work of journalists (A/HRC/12/48, para. 1551). Further, the Committee has received information that the de facto authorities in Gaza, while generally tolerant of local human rights organizations,50 have recently stated that the ICHR is not legally qualified to work in Gaza.
68. Equally distressing are reports that victims who travel to Erez to meet with Israeli military investigators have been summoned for questioning about these contacts by the de facto authorities in Gaza.
69. Given this situation, the Committee wishes to remind all parties that the ability of human rights organizations to function freely and independently is crucial for the improvement of the domestic human rights situation in general, and for the effective functioning of accountability mechanisms in particular.
C. The victims’ right to justice and accountability
70. Third, and most importantly, the Committee emphasizes that General Assembly resolution 64/254 called upon the Government of Israel and the Palestinian side to conduct investigations that are independent, credible and in conformity with international standards towards insuring accountability and justice. During its work, the Committee was struck by the testimony of victims on both sides that justice has not been done and that they lack confidence that it is ever likely to be done. For example, a Palestinian resident in Gaza told the Committee that investigations into Operation Cast Lead incidents “were superficial, not significant, and misleading to the international community. Despite our belief that the investigation was not serious we decided to appear and deliver testimony, out of a belief that we are civilians and innocent. But we also believed that in the end, we will end up with nothing. We were correct; the investigation carried out by Israel is just a game, nothing more.”51
71. One Israeli victim of rocket attacks expressed her frustration at the lack of justice and said, “I have no Court, no one to represent me, no one to sue. Is that real justice?”52 She also articulated her disappointment with the international community: “I was disappointed [by the FFM] and found myself feeling more humiliated than ever before in my life because it seemed to me there was no mention of Israeli victims who, like me, have suffered for more than eight years the rockets and mortars, it seemed to me that no one wanted to issue a strong condemnation of terror coming from Gaza. Since that time I have lost faith in the international committees, especially the United Nations, as it seems no one is asking if I have a right to live.”53
72. The Committee heard the respective parties’ claims that their systems have established mechanisms to ensure accountability and justice. Yet, after listening to victims, witnesses and human rights organizations, it is clear that the needs of victims are not being adequately addressed. For example, while the Israeli system allows for Palestinian victims to file civil claims with the Supreme Court, the reality for Gaza residents is that, given existing restrictions preventing entry into Israel, their right to a remedy and reparation is limited in such a way as to render it virtually ineffective. A petition filed by a human rights organization points out that the existing two-year statute of limitations, and the number of obstacles to accessing Israel, effectively undermine any real prospect of obtaining justice.54
73. Similarly, victims on both sides continue to raise the question whether their right to obtain reparation will be adequately respected. This is not just a matter of law; this is, in the view of the Committee, a matter of the most basic principles of justice. When harm has been done, irrespective of the reasons and justifications for it, victims should be given the opportunity to be compensated for the damages suffered, whether physical, psychological, or patrimonial. The Committee notes the increasing practice of Member States carrying out military operations in different parts of the world to offer ex gratia payments when direct or indirect damage is caused to civilians. Such practice is commendable and should, in the near future, constitute the norm rather than the exception.55
74. But above all, listening to the testimony, the Committee apprehended that many people continue to feel insecure, they carry the burden of injuries and disabilities, and struggle to live in difficult conditions. The Committee heard testimonies from mothers on both sides who are raising children suffering from post-traumatic stress disorder and who have to consider where they can run for shelter to protect their families.56 The Committee also is mindful of submissions it received about the destruction of the environmental infrastructure in Gaza and the need for materials to be allowed in to enable the civilian population to repair damage to wells and household water and sanitation systems.57 The Committee considers that, for as long as victims – in Israel and in Gaza – continue to lack confidence in the investigative processes, and continue to live in difficult and unsafe conditions, without hope of remedy, there will be no genuine accountability and no justice.
A. General conclusion
75. The Committee, in the course of its work since the adoption of Human Rights Council resolution 13/9, has monitored and assessed the different proceedings undertaken by the Government of Israel and the Palestinian side on the basis of available public information, contributions from government authorities, NGOs and other actors, and accounts from victims and witnesses. It considers that the analysis presented in the present report completes and concludes its examination of the issues it was requested to address in resolution 13/9.
76. Although the Committee was able to access official information detailing the progress of some investigations by the Israeli authorities since September 2010, it relied largely on media reports and other secondary sources to inform its deliberations. The Israeli authorities’ refusal to allow the Committee access to Israel and the West Bank, and access to Gaza through Israel, significantly constrained the Committee’s ability to engage with key interlocutors.
77. That said, the Committee finds that Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza reported by the United Nations Independent Fact-Finding Mission on the Gaza Conflict and others. Given the scale of this undertaking, it is unsurprising that in 2011, much remains to be accomplished. The Committee is able to report that, to the best of its knowledge, 19 investigations into the serious violations of international humanitarian law and international human rights law reported by the Fact-Finding Mission have been completed by the Israeli authorities with findings that no violations were committed. Two inquiries were discontinued for different reasons. Three investigations led to disciplinary action. Six investigations reportedly remain open, including one in which criminal charges have been brought against an Israeli soldier. The status of possible investigations into six additional incidents remains unclear.
78. Furthermore, Israel has launched 14 investigations into incidents related to alleged violations in the West Bank. Of those, two criminal indictments have been filed, six investigations are ongoing and six cases were closed without charges. The Committee received no information concerning other investigations of alleged violations committed in the West Bank, nor of investigations related to persons detained in Israel.
79. The Committee reiterates the conclusion of its previous report that there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead.
80. However, the Committee notes the work of the Turkel Commission and its probing of some decisions and policies adopted by high-level officials in Israel. The Committee concludes that a public commission – which includes international participants – constitutes one of the mechanisms that Israel could use to assess high-level operational and legal decisions concerning the execution of the military operation in Gaza.
81. Concerns related to transparency and the participation of victims and witnesses in investigations reported by the Committee in its previous report continue to be relevant. NGOs, victims and their legal representatives have difficulty accessing information about progress in investigations. They report that the majority of their requests for information go unanswered. The Committee is of the view that transparency and participation help build the confidence of victims and other interested parties in the investigation process, including fostering a sense that credible and genuine investigations are taking place.
82. The Committee has strong reservations respecting the promptness of some investigations of individual incidents referred to by the Fact-Finding Mission. More than one third of the 36 incidents featured in the Fact-Finding Mission report (FFM report) are still unresolved or unclear. The status of investigations into incidents in Israel and the West Bank is also unclear. Presumably this serious issue with respect to the ability of the military justice system to investigate promptly allegations of wrongdoing during military operations is under careful review by the Turkel Commission.
83. Finally, the Committee is concerned about the fact that the duration of the ongoing investigations into the allegations contained in the FFM report – over two years since the end of the Gaza operation – could seriously impair their effectiveness and, therefore, the prospects of ultimately achieving accountability and justice.
C. The Palestinian side
1. The Palestinian Authority
84. In September the Committee reported that the investigation carried out by the Independent Investigation Commission conformed to international standards and could be considered credible and genuine. More recently the Commission has sought to complete its mandate by investigating rocket and mortar attacks against Israel and other human rights violations in the Gaza Strip. The Committee was informed that the Commission had been unable to do so, as it had not received positive responses to requests for access from either Israel or the de facto authorities in Gaza.
85. Nonetheless, the work of the Independent Investigation Commission did provide a solid basis for proceeding against perpetrators and developing other measures. In October 2010, the Council of Ministers of the Palestinian Authority established a Ministerial Committee with a mandate to issue recommendations to the Council of Ministers about implementation of the Commission’s report. The report of the Ministerial Committee details strategies for significant institutional change over the next nine months, including the establishment of a Constitutional Court. The report also urges that the Prime Minister issue a directive that employment in the civil service not be dependent on security clearances, and that an ad hoc committee review past administrative decisions that led to dismissals. The Ministerial Committee further recommended that the General Prosecutor conduct criminal investigations into allegations of extrajudicial killings in Gaza, and of incidents in which officials allegedly refuse to implement court decisions.
86. The Committee was also informed that a decision has been taken to transfer cases from military to civilian courts and that the office of the General Prosecutor now conducts regular monitoring visits to military and civilian detention facilities.
87. These proposals and changes represent important developments. Nonetheless, the Committee is concerned that criminal accountability mechanisms have not yet been duly activated in relation to many of the allegations of serious violations in the FFM report.
2. The de facto Gaza authorities
88. In September 2010, the Committee stated it had been unable to substantiate reports that the de facto Gaza authorities had released all political prisoners or conducted criminal prosecutions, in response to the FFM report.
89. The Committee acknowledges that the de facto authorities have now made efforts to provide specific information concerning criminal investigations into alleged human rights violations committed by their security forces. The Committee is aware of the fact that it is not uncommon for such cases to be resolved to the satisfaction of the families through out-of-court settlements.
90. Nevertheless, the Committee remains extremely concerned by the fact that the de facto authorities have not conducted any investigations into the launching of rocket and mortar attacks against Israel. It considers that the de facto authorities should make serious efforts to conduct criminal inquiries into all the allegations of grave violations of international law implicated by these attacks.
List of stakeholders consulted a
Permanent Mission of the Arab Republic of Egypt to the United Nations in Geneva
Permanent Mission of Israel to the United Nations in Geneva
Permanent Mission of the Hashemite Kingdom of Jordan to the United Nations in Geneva
Permanent Observer Mission of Palestine to the United Nations in Geneva
Mr. Muhammad Abed De facto authorities, Gaza
Judge Issa Abu Sharar Palestinian Independent Investigation Commission
Dr. Mamdouh Aker Palestinian Independent Human Rights Commission
Mr. Gandhi Aldube Palestinian Independent Human Rights Commission
Mr. Muhammad Faraj al-Ghoul De facto authorities, Gaza
Dr. Ali Kashan Minister of Justice, Palestinian National Authority
Mr. Ahmed Mughani General Prosecutor, Palestinian National Authority
Ms. Randa Siniora Palestinian Independent Human Rights Commission
Adalah, Al-Haq, Al-Mezan, Amnesty International, Badil, B’Tselem, Cairo Institute for Human Rights, Defense for Children International, EWASH, Human Rights Watch, International Association of Jewish Lawyers and Jurists, Public Committee against Torture in Israel, Palestinian Centre for Human Rights, Physicians for Human Rights, UN Watch.
In addition, the Committee received submissions from: Al-Haq, Adalah, B’Tselem, EWASH, Hamoked, the Palestinian Centre for Human Rights, NGO Monitor.
Office of the United Nations High Commissioner for Human Rights
a In light of the Committee’s confidentiality policy, it should be noted that inclusion in this list was done on the basis of explicit authorization by the relevant party. Therefore, the list is not exhaustive and includes only those persons and organizations that authorized the Committee to be mentioned in the report.