Last week it was published that the Military Advocate General (MAG) Corps plans to investigate 99 incidents that occurred in the course of Operation Protective Edge. That same day, Adalah – the Legal Center for Arab Minority Rights in Israel received replies to some of the appeals we had sent to the authorities requesting the opening of independent criminal investigations into specific events.
Ostensibly, it is possible to speculate why there is a need for the international commission of inquiry that was established by the UN Human Rights Council if Israel is conducting its own investigations.
However, the replies received from the MAG demonstrate and reinforce the claims made by human rights organizations which repeatedly emphasize that investigations are not conducted in conformity with the standards set in international humanitarian law that the State of Israel is obliged to comply with during military action.
Therefore, any examination conducted by the state, whether it leads to the opening of an investigation or is concluded without investigation, is faulty and lacks legal legitimacy.
In order fulfill the obligation to investigate set in international humanitarian law, an inquiry must be independent, professional, transparent, comprehensive and impartial.
The investigation mechanisms that have been employed up to the present time by the army do not conform with these criteria and were criticized by the Turkel Commission, which recommended the adoption of several measures aimed at altering and improving the investigation apparatus so that it would conform with the demands of international law. The state has not yet implemented these recommendations.
Although the relevant authorities are attempting to highlight the fact that changes have been made in the bodies that conduct investigations, in comparison with previous offensives, the Turkel Commission recommendations have only been partially implemented.
For example, although the Turkel Commission recommended the establishment of an independent investigation mechanism that is not linked to the military, investigations are still carried out by a unit that is not independent and is subject to the army.
In addition, although the Commission recommended the publication of legal and criminal norms in the form of a law that would regulate and adopt the prohibitions set in the laws of war, this law and the legal norms have not yet been published or approved; moreover, despite the fact that the Commission recommended setting a specific and prompt schedule for the investigation of incidents regarding which there is a suspicion of a grave breach of the laws of war, a date has not yet been set.
Furthermore, the investigative procedure itself does not conform with the required standards. For example, although the Turkel Commission recommended a process of factual evaluation including the questioning of complainants and non-military witnesses and the documentation of the investigation and clarifications that were requested, the replies we received reveal that all of the material and all of the testimonies collected by the investigative unit are classified as secret evidence.
The confidentiality of evidentiary material has an implication not only on the execution of an independent and transparent investigation, it completely negates the rationale behind the investigation, which should clearly be to deeply and comprehensively examine the accounts presented by the parties involved.
The confidentiality of the evidence held by the investigative unit also contradicts an additional recommendation made by the Turkel Commission which concerns the implementation of the Rights of Victims of Crime law whose purpose is to ensure the right of a victim to receive information regarding the criminal process and his right to be present at a hearing that is held behind closed doors in the framework of the legal procedures.
An additional recommendation of the Turkel Commission that has not been implemented regards the obligation to provide reasons concerning decisions, particularly when a file has been closed. The vague and unspecified explanations that were received by Adalah concerning the closing of some of the files only serve to clearly demonstrate that the investigations are not conducted in conformity with either international law or with the recommendations of the Turkel Commission.
Thus, for example, the explanation given in a reply to a letter regarding the bombing of the Kawari' family home in Khan Younis which killed eight civilians, including six children, and injured 25 others, was that it was not possible to change the trajectory of bomb which had been launched despite the fact that a number of people were spotted in the area of the attack.
The large number of uninvolved individuals who were killed in this attack and the disproportional harm to civilians, which ostensibly raise the suspicion of a grave violation of the laws of war, were not considered in any way whatsoever when it was decided to close the file.
At this stage, it appears that the full implementation of the Turkel Commission recommendations is far off and, therefore, investigations regardless of their results will not realize their fundamental purpose. It is, therefore, clear that the current investigation apparatus lacks legal legitimacy.
The purpose of investigations, as they are conducted at this time, is to create the illusion that the State of Israel is complying with its duty to investigate and in this way enable it to be granted immunity from international criticism.
Under these circumstances, and as long as the State of Israel does not conduct independent investigations concerning grave suspicions regarding the violation of the laws of war, the only option left is that of an international commission of inquiry.
Adv. Sawsan Zaher is the acting executive director of Adalah, the Legal Center for Arab Minority Rights in Israel.