A/HRC/16/24
advisory and prosecutorial power could present a conflict of interest under certain
circumstances, he stated that “the mechanism is calibrated for the inspection of individual
incidents, complaints of war crimes in individual incidents … This is not a mechanism for
policy. True, it is not suitable for this”.32 Therefore, the Committee remains of the view that
an independent public commission – and not the MAG office – is the appropriate
mechanism for carrying out an independent and impartial analysis, as called for in the FFM
report, into allegations that high-level decision-making related to the Gaza conflict violated
international law.
Promptness33
2.
42.
The Committee has previously expressed reservations as to whether Israel’s
investigations into allegations of misconduct have been sufficiently prompt (A/HRC/15/50,
para. 51). In particular, the Committee remains concerned about the fact that unnecessary
delays in carrying out such investigations may have resulted in evidence being lost or
compromised, or have led to the type of conflicting testimony that characterized the
investigations into the killings of Majda and Raayya Hajaj (ibid.) and the inconclusive
findings reported with respect to the tragic deaths of Souad and Amal Abd Rabbo and the
grave wounding of Samar Abd Rabbo and their grandmother Souad (see A/HRC/12/48,
paras. 770-779).
43.
The Committee is fully aware of the difficulties involved in investigating alleged
violations that occurred in a situation of combat, in particular when it comes to the
collection of evidence, interviewing witnesses and victims, and the accurate establishment
of the facts, often in the absence of sufficient forensic tools. Yet, while acknowledging the
complexity and difficulty of the challenges presented to investigators in the wake of the
numerous allegations of wrongdoing by IDF soldiers during the Gaza conflict, it is worth
noting that out of 36 incidents related to Gaza referred to in the Committee’s previous
report, more than one third remain unresolved or with an unclear status two years after the
events took place. That situation raises serious concern as to whether the existing
mechanisms are capable of insuring that investigations are conducted in a prompt manner.
Presumably this is an issue that is under careful review by the Turkel Commission and will
be addressed in part two of its report.
44.
The promptness of an investigation is closely linked to the notion of effectiveness.
An effective investigation is one in which all the relevant evidence is identified and
collected, is analyzed, and leads to conclusions establishing the cause of the alleged
violation and identifying those responsible. In that respect, the Committee is concerned
about the fact that the duration of the ongoing investigations into the allegations contained
in the FFM report – over two years since the end of the Gaza operation – may seriously
impair their effectiveness and, therefore, the prospects of achieving accountability and
justice.
3.
Transparency
45.
The issue of the transparency of Israel’s investigations is a concern that has been
highlighted by a number of different sources and appears to be a matter of some dispute.
Thus, in his testimony to the Turkel Commission, the MAG indicated that his office, as a
32
33
Testimony of the Chief Military Advocate General, Avichai Mandelblit, to the Turkel Commission,
Session Number Four, 26 August 2010.
In its previous report the Committee noted that as a general rule an investigation should commence
and progress with reasonable expedition. Determining whether an investigation has met this standard
of reasonableness depends on the specific circumstances of the case (A/HRC/15/50, para. 25).
11
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