A/HRC/15/50
no established methods of criminal investigations “such as visits to the crime scene,
interviews with witnesses and victims, and assessment by reference to established legal
standards”;64 the delay of six months to start some 13 criminal investigations constituted
undue delay;65 criminal investigations had been conducted in an unprofessional way,
making it virtually impossible to prove charges beyond reasonable doubt;66 and command
investigations were generally a tool to review performance and learn lessons, which can
hardly be an effective and impartial investigation mechanism to respond to allegations of
serious violations.67
Promptness
51.
The Committee has reservations as to whether investigations were sufficiently
prompt. Promptness requires investigations to commence and progress with reasonable
expedition. The Committee notes that many Palestinian witnesses were interviewed only at
the very end of 2009, while many allegations of IHL and IHRL violations were reported
almost immediately at the end of “Operation Cast Lead” in January 2009 and at the latest in
September 2009 with the publication of the FFM report. Such delays can result in evidence
being lost or compromised, and in the kind of confusing and conflicting testimony that
affected the results of the inquiries into the shooting of Majda and Rayya Hajaj and the
attack on the el-Bader flour mill referred to above. Without additional information on when
specific investigations actually got under way, the Committee is not in a position to make a
definitive finding on the expeditiousness with which Israel conducted the relevant
proceedings.
Independence and impartiality
52.
In general terms, it appears that Israel’s military justice system has certain built-in
mechanisms to preserve its independence. At the heart of the system is the MAG, whose
hierarchical independence rests on a number of factors. Specifically, the Minister of
Defense, rather than the Chief of General Staff, is responsible for his appointment and
decisions of the MAG are subject to review by the Attorney-General and by the Supreme
Court sitting as the High Court of Justice, including through petition by individuals and
civil society. Israeli jurisprudence illustrates the careful attention paid to ensuring the
independent functioning of the MAG within the rule of law.68
53.
In spite of the structural guarantees of independence built into the military justice
system, the dual responsibilities of the MAG, in the specific context of these investigations,
raise concerns of a lack of impartiality. The MAG is legal adviser to the Chief of Staff and
other military authorities. Yet, at the same time, he is the supervisor of disciplinary law in
the military. Although the combination of the advisory and supervisory functions in one
office does not automatically lead to a conflict of interest or a lack of impartiality, the
situation is complicated in the present case by the fact that many of the allegations of
64
65
66
67
68
Ibid., para. 1819.
Ibid., para. 1820.
Ibid., para. 1829.
Ibid., para. 1831.
See, e.g., HCJ 4723/96, Avivit Atiyah v. Attorney-General 51(3) P.D. 714; HCJ 425/89, Jamal Abdel
Kader Mahmoud v. the Chief Military Prosecutor, 43(4) P.D. 718; HCJ 372/88, Fuchs v. the Military
Advocate General, 42(3) P.D. 154; HCJ 425/89, Zofan v. the Military Advocate General 43(4) P.D.
718; Cr.A. 6009/94, Shafran & Ors v. the Chief Military Prosecutor, 48(5) P.D. 573; HCJ 442/87,
Shaul v. the Military Advocate General, 42(2) P.D. 749; HCJ 4550/94, Isha v. the Attorney-General,
49(5) P.D. 849.
15
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