Report of the 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
Human Rights Council
Agenda item 7
Human rights situation in Palestine and other occupied Arab territories
A 26-page report was presented to the Human Rights Council on 21 September. We reproduce its conclusions below.
The full report can be downloaded here.
We also reproduce comments on this report by Amnesty International and the International Commission of Jurists
89. A lack of cooperation hampered the Committee’s assessment of Israel’s response to the call by the General Assembly to conduct investigations that are independent, credible and in conformity with international standards into the serious violations of IHL and IHRL reported by the United Nations Fact-Finding Mission on the Gaza Conflict. The Committee’s bases of information are insufficient for a definitive assessment. Consequently, the Committee is not in a position to establish whether the investigations carried out by Israel met international standards of independence, impartiality, thoroughness, effectiveness and promptness.
90. The Committee acknowledges that there are mechanisms in place within the Israeli legal order to investigate allegations of war crimes. It accepts that military as well as civilian investigative bodies may inquire into such crimes so long as the investigations conform to international standards. Investigations into allegations of violations of either IHL or IHRL should meet the universal criteria of independence, impartiality, thoroughness, effectiveness and promptness, subject to the constraints of armed conflict.
91. The actual operation of Israel’s military investigations system raises concern in the present context. Specifically, the Committee concludes that the dual role of the Military Advocate General (MAG) to provide legal advice to IDF with respect to the planning and execution of “Operation Cast Lead” and to conduct all prosecutions of alleged misconduct by IDF soldiers during the operations in Gaza raises a conflict of interest, given the Fact-Finding Mission’s allegation that those who designed, planned, ordered and oversaw the operation were complicit in IHL and IHRL violations. This bears on whether the MAG can be truly impartial – and, equally important, be seen to be truly impartial – in investigating these serious allegations.
92. The Israeli investigators did not always undertake steps to inform victims, witnesses and their legal representatives of the progress of their inquiries, nor did they consistently treat victims with dignity and courtesy. Transparency in reporting progress and results of investigations and access to justice for victims are A/HRC/15/50 23 requirements for investigations under IHRL, although they are not strictly applicable to investigations under IHL, owing to the differing objectives of investigations under these two bodies of law.
93. Nonetheless, without the full participation of victims and witnesses in investigations, their effectiveness and thoroughness suffer. The Committee notes that international standards are evolving in this area, with ever stronger emphasis on affording access to justice for victims even with respect to investigations into alleged violations of IHL.
94. The Committee does not have any information on whether Israel has undertaken investigations into the allegations raised in the FFM report concerning IHRL violations in the West Bank. In this regard, Israel has not met its duty, under the International Covenant or under the Convention against Torture, to investigate these claims.
95. Similarly, there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw “Operation Cast Lead”. The FFM report contained serious allegations that officials at the highest levels were complicit in violations of IHL and IHRL. Israel has not met its duty to investigate this charge. The Committee observes that the military justice system would not be the appropriate mechanism to undertake such an investigation, given the military’s inherent conflict of interest.
B. The Palestinian side
1. The Palestinian Authority
96. The Palestinian Authority established an independent commission of investigation, which carried out a careful and detailed inquiry into the allegations addressed to the Palestinian Authority. On the basis of the Commission’s report and its meeting with the Commission’s Chair and members, the Committee concludes that the Commission was not only independent in form, according to its legal statute, but also in fact. Its report alleges that serious violations of IHRL were committed by public officials in the West Bank. The Committee concludes that the investigation conforms with international standards and can be considered credible and genuine.
97. However, the Committee observes that the Commission’s work was hampered by difficulties in accessing the Gaza Strip. While the Commission took all appropriate steps to investigate the allegations of serious violations of IHL and IHRL in Gaza, the Committee concludes that the Commission was unable to do so.
98. The Commission has laid the groundwork for the commencement of proceedings against the perpetrators and other measures suited to provide redress to the victims. Its Chair has received written assurances from the Prime Minister concerning the implementation of all its recommendations, but the Committee is unaware of any criminal proceedings that may have been initiated since the Commission filed its report.
2. The de facto Gaza authorities
99. The de facto authorities in Gaza established two committees of inquiry.
100. The report of the first Committee, made up of officials of the de facto Gaza authorities, makes no serious effort to address the allegations detailed in the FFM report against the de facto authorities in Gaza; it focuses primarily on the allegations directed against Israel. A/HRC/15/50 24
101. The second report, prepared by three national and three international legal experts, provides some information about the actual measures taken to redress the violations that were alleged, but fails to substantiate assertions that all political prisoners have been released and criminal prosecutions have taken place in response to the FFM report. On the basis of the information before it, the Committee cannot conclude that credible and genuine investigations have been carried out by the de facto authorities in the Gaza Strip.
AI Index: MDE 15/021/2010
23 September 2010
Time for international justice solution for Gaza conflict victims
As the Human Rights Council prepares to consider next Monday, 27 September, a report by a UN Committee of Independent Experts into domestic investigations into the 22-day conflict in Gaza and southern Israel which ended on 18 January 2009, Amnesty International calls on the UN body to seek an international justice solution for the victims.
The report issued earlier this week supports Amnesty International’s evaluation that the domestic investigations carried out by both the Israeli government and the Hamas de facto administration in Gaza into alleged violations of international law committed by both sides have failed to meet the required international standards of independence, impartiality, thoroughness, effectiveness and promptness.
Israel’s investigations, undertaken and overseen by the military, including some involved in the military operation in Gaza, have lacked independence, appropriate expertise and transparency. At least 65 military probes have been closed without opening criminal investigations; they include probes into Israeli attacks on UN facilities, civilian property and infrastructure, medical facilities and personnel, attacks using white phosphorus and other attacks in which many civilians were killed and injured.
In Gaza, the Hamas de facto administration has failed to mount credible investigations into alleged violations by its forces and other Palestinian armed groups, including the firing of indiscriminate rockets into Israel that killed three civilians and injured others during the conflict.
More than one year has passed since the UN Fact-Finding Mission on the Gaza Conflict, headed by Judge Richard Goldstone, identified allegations of grave violations of international law, including war crimes and possible crimes against humanity, committed by both sides and recommended that the government of Israel and the relevant authorities in the Gaza Strip be given six months to undertake good faith investigations.
Amnesty International considers that the domestic authorities have been given more than adequate time and opportunity to ensure justice for victims. Their failure to do so requires an international justice solution.
Although neither Israel nor the Palestinian Authority have ratified the Rome Statute of the International Criminal Court (ICC), on 22 January 2009, the Palestinian Minister of Justice on behalf of the Palestinian Authority (PA) submitted a declaration to the ICC accepting its jurisdiction over crimes “committed on the territory of Palestine since 1 July 2002.” The declaration would potentially cover all crimes documented in the Fact-Finding Mission report in both Gaza and Israel.
Irrespective of the status of the ICC’s jurisdiction, Amnesty International notes that under international law all states can and should investigate and prosecute crimes committed during the conflict before their national courts by exercising universal jurisdiction over crimes under international law.
Amnesty International is therefore calling on the Human Rights Council to:
· recognize the failure of the investigations conducted by Israel and the Hamas de facto administration to comply with international standards;
· call on the ICC Prosecutor urgently to seek a determination by the Pre-Trial Chamber on whether the ICC has jurisdiction over the Gaza conflict;
· call on states to investigate and prosecute crimes committed by both sides during the conflict before their national courts by exercising universal jurisdiction;
· refer the Committee’s report to the Council’s parent body, the General Assembly; and
· request that the UN Secretary-General place the report before the Security Council.
The UN Committee of Independent Experts was established by Human Rights Council resolution 13/9 adopted on 25 March 2010. It was chaired by Professor Christian Tomuschat, an international jurist and expert on international human rights and international humanitarian law, and also included Judge Mary McGowan David, a former justice of the Supreme Court of the State of New York and consultant for the ICC and the International Criminal Tribunal for Rwanda, and Param Cumaraswamy, a jurist and human rights expert. The Committee met Palestinian bodies charged with carrying out investigations in both the West Bank and Gaza, but the government of Israel refused to co-operate with it.
On 21 September 2010 the Committee of Independent Experts released an advanced version of their report (available at: http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.50_AEV.pdf). Christian Tomuschat summarized the report’s finding by saying that the investigations by the Israelis and Palestinians “remain incomplete in some cases or fall significantly short of meeting international standards in others”
The Committee challenged both the impartiality and transparency of the Israeli investigations. It was not clear to the Committee how many of the 36 specific incidents documented in the UN Fact-Finding Mission’s report of September 2009, including some alleged to involve war crimes, Israel had actually investigated. The Committee also noted that, to date, the Israeli investigations had resulted in just one conviction (relating to credit card fraud) and three indictments, all of which involve low-ranking soldiers. In addition, the Committee concluded that Israel had not conducted investigations into decision-making at the highest levels about the design and implementation of the Gaza operations.
The Committee also robustly criticized the investigations undertaken by the Hamas de facto administration in Gaza noting that these did not serious address the recommendations of the UN Fact-Finding Mission and dealt inadequately with the firing of indiscriminate weapons into southern Israel by Palestinian armed groups.
Finally, the Committee made a generally positive evaluation of investigations conducted by the Independent Investigation Commission established by the PA into violations of international human rights law by public officials in the West Bank, but noted that these had yet to result in any criminal proceedings. The PA was not a party to the 22-day conflict and the Commission was not able to investigate the firing of indiscriminate weapons into southern Israel by Palestinian armed groups in Gaza.
According to the Rome Statute, the ICC has the power to exercise its jurisdiction over persons for the most serious crimes of international concern, including war crimes and crimes against humanity. If the ICC determines that it is unable to act on the PA’s declaration, the UN Security Council has the ability to refer the situation to the ICC Prosecutor.
On 26 February 2010 the UN General Assembly called on the Secretary-General to report to it within a period of five months on the Israeli and Palestinian investigations. However, neither of the reports released by the Secretary-General on 26 July and 11 August constituted a substantive assessment of the domestic investigations.
Campaign Manager – Crisis Response & Country Priorities
Amnesty International UK
INTERNATIONAL COMMISSION OF JURISTS
For immediate release Geneva, 22 September 2010
Israel-Palestine: Domestic investigations have failed to meet international standards; UN Security Council must ensure accountability
The ICJ urges the Security Council to take concrete measures to ensure accountability for human rights violations and breaches of international humanitarian law committed by Israeli Defense Forces (IDF) and Palestinian armed groups during Operation Cast Lead, December 2008 – January 2009. Israeli investigations have failed to meet international standards of effectiveness, independence and impartiality. The Hamas administration in Gaza has also failed to provide any concrete evidence of investigating violations committed by Palestinian armed groups during this period.
A Panel of Independent Experts established by the United Nations (UN) Human Rights Council to monitor and assess domestic investigation by both parties concluded yesterday that these investigations “remain incomplete in some cases or fall significantly short of meeting international standards in others.”
The Israeli investigations were conducted under the supervision of the Military Advocate General (MAG). The MAG provided legal advice to the Israeli Defense Forces (IDF) during planning and execution of the military operations in Gaza. “Even when Israeli investigations revealed that IDF targeted civilian objects resulting in civilian deaths, the MAG failed to order criminal investigations. Two commanders who authorized shelling in a populated area were only reprimanded,” said Wilder Tayler, ICJ Secretary General.
The MAG concluded that there was no basis for criminal investigations into the most serious breaches of international humanitarian law documented by the Goldstone report, including direct attacks against civilians and civilian objects; strikes on UN and medical facilities, buildings, vehicles and crews; the use of weaponry containing phosphorous in densely-populated areas, and the use of Palestinian civilians as human shields by the IDF.
The Hamas administration in Gaza has failed to provide any concrete evidence of investigating the indiscriminate rockets attacks against civilians and civilian objects in the South of Israel, asserting that these attacks were directed only at military targets.
“Instead of investigating the indiscriminate rocket attacks on civilians and civilian objects in the south of Israel, the Hamas administration has simply denied such attacks. This contradicts several public statements made by Hamas civilian and military leaders during the war in Gaza justifying the use of any means in order to protect the Palestinian population in Gaza,” said Tayler.
Both Israel and Hamas have failed to meet their obligations under international law to conduct credible and independent investigations. “The Human Rights Council must therefore assess these domestic proceedings and report accordingly to the UN General Assembly and Security Council,” said Tayler. “The Security Council must take concrete and robust measures to ensure accountability for the perpetrators and justice for victims, and to this end consider the options at its disposal to break the cycle of impunity prevalent in this conflict, including by referring the situation in Gaza to the International Criminal Court,” concluded Tayler.
For more information, please contact Saïd Benarbia, Middle East & North Africa Legal Adviser, at + 41 22 979 38 17