A/HRC/40/43
highlighted concerns in terms of the lack of accountability by both the Israeli and
Palestinian authorities.6
5.
Particularly worrying is the number of cases that, despite serious allegations and
prima facie evidence of international law violations, were closed by the Israeli Military
Advocate General without any criminal investigation. 7 According to the most recent update
of the Military Advocate General, dated 15 August 2018, out of 500 complaints related to
360 incidents referred to him, 8 only 31 were referred for criminal investigation. While one
investigation led to the conviction of three soldiers for looting, investigations in 28 cases
have been concluded without resulting in criminal charges and 2 cases remain pending.
Cases relating to 189 incidents have so far been closed.9
6.
The most recent update included information on decisions taken by the Military
Advocate General since the previous update, such as the decision not to proceed to a
criminal investigation of the events in and around Rafah that took place on 1 August 2014
(so-called Black Friday),10 during which 3 Israeli soldiers and 207 Palestinians, including at
least 144 civilians, were killed.11 The Military Advocate General further decided not to take
action following preliminary examinations relating to seven other cases involving the
deaths of 79 Palestinians, mostly civilians, and damage to a hospital and several residential
structures. He also provides information on the decision to close one case involving civilian
deaths following a preliminary investigation by the military police, as well as to close eight
cases pertaining to the killing of over 50 Palestinians, mostly civilians, following criminal
investigations.
7.
Concerning events that took place in and around Rafah on 1 August 2014, the
Military Advocate General concluded that 114 Palestinians had been killed during the
fighting, including at least 42 “military operatives”. He acknowledged that Palestinian
civilians might have been incidentally killed during the fighting, but concluded that none
had directly been targeted. According to the Military Advocate General, the majority of
civilians had been killed as a result of targeted aerial strikes aimed at military targets. In
cases related to ground operations, he referred to the low number of civilian casualties to
demonstrate respect for the principle of proportionality. In a few cases, he recognized that
the civilian presence in the targeted area had been larger than expected by Israeli security
forces following an initial assessment, but concluded that that had not affected the
proportionality assessment, nor the legality of the use of force. He noted that precautionary
measures had been taken whenever appropriate, underlining in a number of cases that
warnings to the civilian population had not been possible as they would have undermined
the objective of the operation at stake. For all cases examined in the update, he concluded
that there had been no grounds for reasonable suspicion of criminal misconduct that would
warrant the opening of a criminal investigation. Similar conclusions were reached in other
cases, for example regarding two attacks that had occurred on 29 July 2014 that had
respectively resulted in the deaths of 35 civilians in Khan Yunis and of 19 persons, of
whom a significant majority were civilians, in Bureij camp.
8.
The information provided by the Military Advocate General in the most recent
update, as in previous ones, is insufficient to support the conclusion that the principles of
6
7
8
9
10
11
A/HRC/37/41, paras. 9–17, A/HRC/34/38, para. 42, and A/71/364, paras. 40 and 51–55.
See Israel Defense Forces, “Decisions of the IDF Military Advocate General regarding exceptional
incidents that allegedly occurred during Operation ‘Protective Edge’ – update No. 6”, available from
www.idf.il/en/minisites/wars-and-operations/operation-protective-edge-legal-updates/). See also
A/HRC/37/41, para. 14, A/HRC/35/19, para. 18, and A/71/364, para. 40.
According to the Military Advocate General, “such incidents include events allegedly resulting in
significant and unanticipated civilian harm and events where military activity allegedly resulted in
damage to medical or UN facilities” (see www.idf.il/en/minisites/wars-and-operations/mag-corpspress-release-initial-release-sept-2014/).
See Israel Defense Forces, “Decisions of the IDF Military Advocate General”.
Events on 1 August 2014 involved aerial attacks and a ground operation by Israeli security forces
following the killing of two of its soldiers and the kidnapping of another one, who was later
pronounced dead.
See www.btselem.org/press_releases/20160720_fatalities_in_gaza_conflict_2014.
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