On 19 December 2010, the Military Advocate General submitted to the Public Commission to Examine the Maritime Incident of 31 May 2010, chaired by justice (Ret.) Jacob Turkel, a second position paper.
The paper presents and analyzes Israel’s system for examining and investigating allegations of misconduct and violations of the Laws of Armed Conflict, by the IDF forces.
This paper is currently available in Hebrew only.
The position paper is divided into six parts. The first part describes the military justice system of the IDF and its three main components: the Military Advocate General Corps, the Military Police Criminal Investigation Division, and the Military courts Unit, as well as the civilian supervision over the military justice system carried out by the civilian Attorney General and the Supreme Court.
This part also describes the investigation policy regarding alleged violations of the Law of Armed Conflict by the IDF.
The second and third parts of the paper examine the legal framework relevant to the duty to investigate under international law.
The second part focuses on the Law of Armed Conflict which is the main legal source applicable to IDF’s operational activities; While the third part deals with the duty to investigate under International Human Rights Law, in light of recent voices calling to its application on different aspect of combat action, including investigations of misconduct.
Both parts describe the legal sources for the duty to investigate, the applicable standards for fulfilling the duty, and the circumstances which trigger such investigations.
The second and third parts of the paper conclude that in the course of the ongoing armed conflict between Israel and the Palestinian terrorist organizations, including the Hams regime in Gaza, the duty to investigate is governed only by the Law of Armed Conflict, and not by International Human Rights Law. This duty arises whenever there is a suspicion for a violation of the Law of Armed Conflict, which cannot be derived from the mere fact that a civilian was harmed or killed during the hostilities. In most cases, a preliminary examination is needed in order to determine whether such a suspicion exists. When investigation is required, it should be carried out in good faith and in accordance with the standards of functional independence of the investigating and prosecuting authorities, effectiveness, and promptness – all of which implemented while taking into account the special character of the incidents investigated.
The fourth part of the paper describes, as means of comparison, the practice of four western states regarding investigation of wartime misconduct – United states of America, United Kingdom, Canada and Australia.
Based on the normative framework laid down in the second and third parts of the paper, the fifth part discusses the compatibility of IDF’s investigation policy regarding alleged violations of the Law of Armed Conflict with Israel’s obligations under International law. In this regard, it responds to the main criticism directed against the independence of Israel’s military justice system.
The sixth part of the paper details the manner in which IDF’s investigation policy was implemented to examine the allegations raised regarding the activities of the forces involved in the Naval Incident of 31 May 2010.
The paper is concluded with an appendix, responding to the report recently published by the “Committee of Independent Experts”, established by the Human Rights Council to monitor and assess the leal proceedings undertaken by the State of Israel regarding the allegations included in the “Goldstone Report”.