A/HRC/15/50
serious violations of IHL and IHRL in the FFM report directly link to the advice he
provided.
54.
Indeed, Israel publicly stated that the MAG gave legal advice on IHL to
commanders at all levels leading up to and during the Gaza conflict and that “the lawyers
examined the legality of planned targets, participated in the operational planning process,
helped direct humanitarian efforts and took part in situation assessments, exercises and
simulations”.69 However, as noted above, the Fact-Finding Mission strongly criticized the
objectives, strategy and policy underlying the entire Gaza operation.70 The link between the
advice given and the allegations in the FFM report underlines the importance of the MAG
not only acting impartially, but also being seen to act impartially.
55.
One way to dispel any suspicion of a lack of impartiality is to examine the results of
the investigations. Of the 36 incidents in the FFM report, the Committee notes the
following findings: no violation or discontinuation of proceedings for various reasons (20);
unclear results (7); disciplinary action taken (3); indictments (1); ongoing criminal
investigations (5). Although the Committee does not have access to the full evidence and
reasoning behind these decisions, given the seriousness of the allegations, the military
investigations thus far appear to have produced very little.
56.
The Committee notes that civilian oversight of the MAG decisions provides a
commendable mechanism to protect against arbitrariness. However, the Committee is not
aware of any requests for judicial review of a decision of the MAG related to investigations
connected to the Gaza conflict. While any interested party, including NGOs, can seek a
High Court judicial review, even in the course of armed conflict, Palestinians in Gaza face
significant hurdles.
Treatment of Palestinian complainants and witnesses
57.
Palestinian complainants and their legal representatives stated that they were not
systematically informed of the progress of their cases. While the military has a standard
practice of acknowledging receipt of a complaint, the vast majority of complainants
received no further information whatsoever about the status of their cases. Two
organizations which filed complaints on behalf of Palestinians told the Committee that they
had learned about the dismissal of their complaints only through the Israeli media.71 The
lack of any standard process of informing complainants about the progress and results of
investigations affects the perception of justice. Not surprisingly, the Committee learned that
the complainants and witnesses affected by investigations had little confidence in the
system.
58.
The same lack of transparency was also reported in civil cases. In addition to
lodging a complaint with the MAG, complainants can initiate a proceeding to seek
compensation with the Ministry of Defense. The claimant must lodge a form within 60 days
of incurring damage, followed by a civil claim within two years. The Palestinian Centre for
Human Rights (PCHR) submitted 1,028 compensation claims to the Israeli Ministry of
Defense, of which, by 11 February 2010, only 7 on behalf of 20 individuals had been
acknowledged. The Israeli Military Police notified PCHR that it had opened investigations
in 15 cases and summoned 35 witnesses to the Erez crossing. According to PCHR, none of
the interviewed witnesses received any information following their appearance before the
investigation panel in Erez. In the case of the attack on the al-Daya family residence –
69
70
71
16
“The operation in Gaza”, para. 216.
A/HRC/48/12, para. 1895.
Consultation with Adalah, Amman, 29 July 2010; consultation with the Palestinian Centre for Human
Rights, Gaza City, 15 August 2010.
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