A/HRC/35/19/Add.1
Palestinian property.”9 He specifically cited the main issues, indicating that “Shortcomings
in the Israeli justice system […] include physical, financial, legal and procedural barriers
that restrict the ability of Palestinians, particularly those living in Gaza, to access justice.”10
13.
Contrary to the request to conduct investigations into all credible allegations, the
Secretary-General noted that “Significantly, findings suggest there to be a consistent failure
by the Military Advocate-General […] and the Attorney General to open investigations in
all cases where prima facie evidence, including eye-witness testimony, medical reports or
audio-visual materials indicate that actions by State agents were unlawful.”11
14.
Concerning independence and impartiality, both the 2014 Gaza Commission of
Inquiry 12 and the 2010-11 Committee of Experts 13 noted that “a central failing of the
investigation system stems from the dual responsibilities of the MAG, both as the legal
advisor to the Chief of General Staff and other military authorities and as the supervisor of
disciplinary law and of criminal investigations in the military.” 14 These bodies also
recognized that the civilian judicial oversight by the Attorney General and the Supreme
Court over decisions of the Military Advocate-General was a safeguard to preserve
independence.15 In practice, however, the Commission of Inquiry found that the High Court
generally shied away from intervening in policies set by the Military Advocate-General and
had “rarely overturned a decision by the Military Advocate-General.” 16 In 2016, the
Secretary-General similarly reported to the General Assembly that “[…] the oversight is
limited and often fails to review the legality of the policies themselves or the orders issued
at the highest levels.” 17 The Committee of Experts found that the Military AdvocateGeneral was not an appropriate mechanism for the review of policy decisions.
15.
The following paragraphs provide examples of the assessments carried out to
determine whether investigations are “independent, transparent, impartial, thorough,
prompt, and effective” as requested by the recommendation
16.
The judicial process and conviction by a military tribunal of Sergeant El-Or Azaria
was subject to political pressure. He was convicted for the manslaughter of Abdel Fattah alSharif – a Palestinian who was incapacitated after being shot for allegedly stabbing an
Israeli soldier. His killing was documented in a video circulated by B’Tselem. Media
coverage, replete with high-level political figures commenting on the case, illustrated the
pressure on the justice system. Prime Minister Benjamin Netanyahu, who reportedly
indicated his support for the soldier to be pardoned, declared: “We have one army which is
the foundation of our existence. The IDF soldiers are the sons and daughters of all of us,
and they must remain above all disagreements.”18 Following the many high-level political
statements supporting Sergeant Azaria, the Minister of Defence called “all ministers to
show restraint”, warning that “slogans” were “self-serving, and not for the benefit of
Azaria.”19
17.
Regarding transparency, the five updates published about preliminary examinations
by the Israeli Fact-finding Assessment Mechanism and investigations are encouraging but
insufficient. As observed by the 2014 Gaza Commission of Inquiry: “Information currently
made available is welcome, but is insufficient to allow for effective public and international
scrutiny.” 20 The The Commission further underscored the requirement of transparency,
9
A/71/364 para. 39.
A/71/364 para. 40.
11
A/71/364 para. 40.
12
A/HRC/RES/S-21/1.
13
A/HRC/RES/13/9.
14
A/HRC/29/CRP.4 para. 619.
15
A/HRC/29/CRP.4 para. 622, A/HRC/16/14 para. 41.
16
A/HRC/29/CRP.4 para. 623.
17
A/71/364, para. 50.
18
E.g. www.jpost.com/Israel-News/Politics-And-Diplomacy/Netanyahu-calls-to-pardon-Elor-Azariaafter-Hebron-manslaughter-conviction-477459, www.theguardian.com/world/2017/jan/04/israelisoldier-guilty-manslaughter-shooting-palestinian-elor-azaria-abdel-fattah-al-sharif.
19
See www.timesofisrael.com/liberman-ministers-should-keep-quiet-about-azaria-pardon/
20
A/HRC/29/CRP.4, para. 629.
10
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