A/HRC/13/54 Investigations carried out by Israel in connection with Operation Cast Lead 11. Information received by the High Commissioner as well as information that can be found in the public domain11 indicate that approximately 150 incidents have been the subject of investigation by the Israeli armed forces.12 A total of 36 incidents are or have been the subject of criminal investigations by the Military Police Criminal Investigations Division (MPCID);13 the rest have been the subject of command investigations. The report published by the Government of Israel in January 2010 indicates that all investigations begin with the Military Advocate General (MAG), and may be referred either for a command investigation or a criminal investigation. The latter are carried out by the MPCID, trained in the exercise of criminal investigation, while the former are carried out by military officers with operational, rather than criminal, investigation expertise. 12. A total of 68 command investigations14 have concluded with the MAG determining that no criminal investigation is warranted. Seven criminal investigations have concluded that no prosecution is warranted. A total of 45 command investigations and 28 criminal investigations are ongoing. One case has resulted in the conviction of a soldier, in relation to the theft of a credit card. Investigations in relation to half of the above-mentioned 150 incidents therefore appear to have been concluded. No information has been provided indicating that any of the decisions not to proceed with investigations have been the subject of a request for judicial review or review by the Attorney General. 13. Effective investigations must be independent, thorough and prompt.15 All of the command investigations, special and ordinary, appear to rely predominantly, if not exclusively, on information provided by those potentially implicated in the violations. They do not appear to meet the standards required for practical independence.16 14. Ordinary command investigations appear to fall short of the required standard of hierarchical independence17 and carry with them a risk of a conflict of interest that cannot 11 12 13 14 15 16 17 GE.10-12152 There are five documents: (a) Israeli Defense Forces, “Conclusion of investigations into central claims and issues in Operation Cast Lead” (April 2009); (b) Israel (Ministry of Foreign Affairs), “Initial Response to the Fact-Finding Mission on Gaza pursuant to resolution S-9/1 of the Human Rights Council” (September 2009); (d) Letter from the Permanent Mission of Israel to the United Nations Office and Specialized Institutions in Geneva to the High Commissioner for Human Rights (November 2009); and (e) Israel, “Gaza operation investigations: an update” (January 2010). The reports from the Government suggest that an investigation is taking place in respect of each incident. Therefore 150 investigations correlate to 150 incidents. There may be investigations that cover multiple incidents, but certainty is not possible on the basis of available information. Seven of these were referred by the Military Advocate General at the conclusion of command investigations, according to information provided by the Government of Israel. See Israel, “Gaza operation investigations: an update” (2010), pp. 16–19. See footnotes 12 and 13 above. See also, on procedural and institutional considerations, concluding observations of the Human Rights Committee: Lithuania (CCPR/CO/80/LTU), para. 10, and Committee against Torture communication No. 56/1996 (CAT/C/20/D/59/1996). See Finucane v. the United Kingdom (2003) 22 EHRR 29, para. 68: “For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, judgement of 27 July 1998, Reports 1998-IV, §§ 81– 82; Ogur v. Turkey, [GC] No. 21954/93, ECHR 1999-III, §§ 91–92). This means not only a lack of hierarchical or institutional connection but also practical independence (see, for example, Ergi v. Turkey, judgement of 28 July 1998, Reports 1998-IV, §§ 83–84, and the recent Northern Irish cases, for example, McKerr v. the United Kingdom, No. 28883/95, § 128, Hugh Jordan v. the United Kingdom, No. 24746/94, § 120, and Kelly and Others v. the United Kingdom, No. 30054/96, § 114, ECHR 2001-III).” See for example Finucane v. the United Kingdom and McKerr v. the United Kingdom. 5