General Assembly: United Nations
General Assembly: United Nations
General Assembly: United Nations
Original: English
Summary
This report is submitted to the Human Rights Council pursuant to its resolution 13/9.
The Committee reviewed numerous reports, including the official reports submitted to the
United Nations Secretary-General by the Government of Israel and the Palestinian side
pursuant to General Assembly resolution 64/254, as well as other documents, reports and
articles by non-governmental organizations and military justice experts. The Committee
undertook two field missions, to Amman and to the Gaza Strip, to interview victims and
witnesses, Government officials and human rights organizations. The Committee was not
granted access to Israel and the West Bank.
The Committee sought to assess investigations for compliance with international
standards of independence, impartiality, effectiveness, thoroughness and promptness.
* Late submission.
GE.10-16225
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Contents
Paragraphs Page
I. Introduction............................................................................................................. 1–4 3
II. Mandate and approach ............................................................................................ 5–16 3
A. Mandate .......................................................................................................... 5–7 3
B. Methods of work............................................................................................. 8–16 4
III. Applicable law and standards.................................................................................. 17–34 6
IV. The Government of Israel ....................................................................................... 35–64 11
A. Investigations conducted................................................................................. 35–41 11
B. Assessment ..................................................................................................... 42–64 12
V. The Palestinian side................................................................................................. 65–88 18
A. The Palestinian Authority ............................................................................... 65–75 18
B. The de facto Gaza authorities ......................................................................... 76–88 20
VI. Conclusions............................................................................................................. 89–101 22
A. Israel ............................................................................................................... 89–95 22
B. The Palestinian side ........................................................................................ 96–101 23
Annexes
I. List of stakeholders consulted .......................................................................................................... 25
II. Table: Incidents in the report of the United Nations Fact-Finding Mission on the Gaza Conflict ... 27
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I. Introduction
1. By its resolution 13/9, the Human Rights Council decided, in the context of the
follow-up to the report of the International Independent Fact-Finding Mission (hereinafter
FFM report),1 “to establish a committee of independent experts in international
humanitarian and human rights laws to monitor and assess any domestic, legal or other
proceedings undertaken by both the Government of Israel and the Palestinian side, in the
light of General Assembly resolution 64/254, including the independence, effectiveness,
genuineness of these investigations and their conformity with international standards”.
2. On 14 June 2010, the High Commissioner for Human Rights announced the
appointment of Mr. Christian Tomuschat, Professor Emeritus at Humboldt University
Berlin, former member of the United Nations Human Rights Committee and the
International Law Commission (President in 1992), as Chair of the Committee. The other
two members were: Judge Mary McGowan Davis, former Justice of the Supreme Court of
the State of New York and former federal prosecutor, who has advised widely on
international justice issues, including for the International Criminal Tribunal for Rwanda
and the International Criminal Court; and Mr. Param Cumaraswamy, jurist and former
Special Rapporteur of the Commission on Human Rights on the independence of judges
and lawyers.
3. The Office of the United Nations High Commissioner for Human Rights (OHCHR)
established a secretariat to support the Committee.
4. The present report is submitted to the Human Rights Council pursuant to its
resolution 13/9.
A. Mandate
5. The Committee interpreted its mandate by reading Human Rights Council resolution
13/9 in conjunction with General Assembly resolution 64/254, in which the General
Assembly reiterated its call upon the Government of Israel and the Palestinian side to
conduct investigations “that are independent, credible and in conformity with international
standards into the serious violations of international humanitarian and international human
rights law reported by the [United Nations] Fact-Finding Mission [on the Gaza Conflict],
towards ensuring accountability and justice”.
6. The Committee understood “domestic, legal or other proceedings” to refer to
investigations, disciplinary proceedings and prosecutions undertaken by either military or
civil justice systems. In accordance with the General Assembly’s resolution, the
Committee’s primary focus was on those proceedings related to the serious violations
alleged in the FFM report. However, the reference to “any” proceedings in the Human
Rights Council’s resolution meant that the Committee was not restricted to the allegations
in the FFM report but could review proceedings pertaining to any incident connected to the
military operations in Gaza. Additionally, the Committee looked into specific legal issues
of institutional responsibility and reform processes relating to the legal regime of armed
1
A/HRC/12/48.
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conflict in the aftermath of these operations, which Israel codenamed “Operation Cast
Lead”.
7. Regarding the temporal scope of the mandate, the Committee considered that any
proceedings initiated by Israel or the Palestinian side which commenced on or after 18
December 2008 were relevant to its task.
B. Methods of work
2
“The operation in Gaza: factual and legal aspects—27 December 2008 – 18 January 2009”, July 2009
(hereinafter “The operation in Gaza”); “Gaza operation investigations: an update”, January 2010
(hereinafter “January update”) (A/64/651, annex I); “Gaza operation investigations: second update”,
July 2010 (hereinafter “Second update”) (A/64/890, annex I).
3
“Report of the Palestinian Independent Investigation Commission established pursuant to the
Goldstone Report”, August 2010 (A/64/890, annex II).
4
“Case of applying recommendations of the United Nations Fact-Finding Mission report in relation to
the Israeli aggression against Gaza (December 2008 to January 2009)” prepared by the Government
Committee for Follow-up to the Implementation of the United Nations Fact-Finding Mission Report
of the de facto Gaza authorities; “Report of the Independent Legal Committee to Monitor
Implementation of the United Nations Fact-Finding Report Recommendation on Gaza Conflict”,
presented to the Committee in Gaza on 15 August 2010.
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5
A/HRC/12/48, paras. 596–629, 706–735, 764–769, 770–779, 780–787, 844–866, 913–941, 1064–
1075, 1076–1085, 1112–1126.
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Israel and the Palestinian side. The Committee has faced considerable constraints in
discharging the other part of its mandate, namely “to monitor” relevant proceedings. Owing
to the lack of access to Israel and the West Bank, the Committee was able to visit only the
Gaza Strip. While in Gaza, the Committee did not receive any detailed information
substantiating claims that criminal or other proceedings had been initiated by the de facto
Gaza authorities.
16. The Committee has laboured under strict time limitations.
6
See discussion in the FFM report (A/HRC/12/48, paras. 281–285).
7
First Geneva Convention, art. 49; Second Geneva Convention, art. 50; Third Geneva Convention, art.
129; Fourth Geneva Convention, art. 146.
8
International Committee of the Red Cross (ICRC), Customary International Humanitarian Law,
vol. I, Jean-Marie Henckaerts and Louise Doswald-Beck, eds. (Cambridge University Press, 2005),
rule 158.
9
The Committee follows the position of the FFM report that the substantive rules applicable to either
international or non-international armed conflicts are broadly converging in this area (A/HRC/12/48,
para. 281).
10
Jean Pictet (ed.), Commentary: Fourth Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (Geneva, ICRC, 1958), pp. 592–593.
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20. In contrast, international human rights law sets out more elaborate standards with
respect to the duty to investigate. The Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment requires “prompt” and “impartial”
investigations by competent authorities into allegations of torture (art. 12). The
International Covenant on Civil and Political Rights does not refer explicitly to a duty to
investigate; however, the Human Rights Committee has consistently urged States parties to
undertake full criminal investigations in cases of serious violations of human rights so as to
bring the perpetrators to justice.11 Despite the Covenant’s silence on this point, the Human
Rights Committee has held that a failure to investigate alleged human rights violations,
such as violations of the right to life and enforced disappearances, itself constitutes a
violation of the Covenant.12
21. The human rights treaties and soft law instruments rely on a range of criteria or
standards, at times overlapping, to guide investigations. Most of the relevant
pronouncements stem from the Human Rights Committee. Its jurisprudence runs largely
parallel to the jurisprudence of the European Court of Human Rights and the Inter-
American Court of Human Rights. The most common criteria – referred to in the FFM
report as “universal principles”13 – are independence, impartiality, thoroughness,
promptness and effectiveness. In addition, soft law standards specify that investigative
bodies should have adequate powers to carry out their duties; soft law standards also
provide direction with respect to collecting and analysing evidence, undertaking autopsies,
reporting by medical experts, calling and protecting witnesses, involving victims and family
members, providing budgetary and technical resources, as well as establishing independent
commissions of inquiry.14 Transparency is also a key element, both as to the manner in
which the inquiry is conducted and in ensuring there is public scrutiny of the results.15
Human rights bodies have defined the most common criteria as follows:
22. Independence. Both the body undertaking the investigation as well as its members
should be independent in the sense of being institutionally detached from those implicated
in the events. For example, those potentially implicated in violations should have no
supervisory role, whether direct or indirect, over those conducting the investigation.16
Independence goes beyond institutional independence, however: investigatory bodies and
11
See, e.g., its general comment No. 31 (2004) on the nature of the legal obligation on States parties to
the Covenant, para. 15.
12
See, e.g., A/HRC/12/48, footnote 1153; Umetaliev et al. v. Kyrgyztan, communication No.
1275/2004, views of 30 October 2008, paras. 9.4–9.6; Amirov v. Russian Federation, communication
No. 1447/2006, views of 2 April 2009, paras. 11.2–11.4.
13
A/HRC/12/48, para. 1814.
14
Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions (Economic and Social Council resolution 1989/65, annex, principles 9–17); Principles on
the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (General Assembly resolution 55/89, annex).
15
Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions, principles 10, 16 and 17; Principles on the Effective Investigation and Documentation of
Torture, principles 2, 3, 4 and 5 (b). See also Committee against Torture, Danilo Dimitrijevic v.
Serbia and Montenegro, communication No. 172/2000, views of 16 November 2005, para. 7.3, and
Osmani v. Serbia, case 261/2005, 8 May 2009, para. 10.7; and Inter-American Court of Human
Rights, case of the “Las Dos Erres” Massacre, No. 211, Judgement, 24 November 2009, para. 236.
16
European Court of Human Rights, Davydov and Others v. Ukraine, application Nos. 17674/02 and
39081/02, Judgement, 1 July 2010, para. 277; Principles on the Effective Prevention and Investigation
of Extra-legal, Arbitrary and Summary Executions, principle 15; Principles on the Effective
Investigation and Documentation of Torture, principle 3 (b).
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their members should not be unduly influenced by powerful social groups, such as the
media, industry or political parties.17
23. Impartiality. Impartiality is closely related to independence. While independence
relates to the establishment and functioning of an investigative body and its members,
impartiality refers to the question of whether an investigator is or is likely to be biased. The
Human Rights Committee has stated that “judges must not harbour preconceptions about
the matter put before them, and that they must not act in ways that promote the interests of
one of the parties”.18 Similar considerations apply to investigators. Indications that
investigators uncritically adhere to one interpretation of events without bothering to explore
alternatives, including the version of events advanced by the complainant, or fail to
acknowledge a lack of evidence to support their interpretation of events, could indicate a
lack of impartiality.19
24. Thoroughness and effectiveness. This standard refers to the completeness and
comprehensiveness of an investigation. Thorough and effective investigators should:
undertake necessary autopsies and medical examinations; collect and record all relevant
evidence; conduct site visits as appropriate; identify, question and take statements from all
relevant witnesses; question witnesses comprehensively so that the investigation is able to
establish the cause of the alleged violation and those responsible; and provide conclusions
based on a comprehensive analysis of all relevant elements.20 The Committee against
Torture has found that inconsistencies in the results of investigations, as well as a lack of
qualifications of key experts, such as the doctor undertaking an autopsy, can be evidence of
a lack of thoroughness.21
25. Promptness. As a general rule an investigation should commence and progress with
reasonable expedition.22 Determining whether an investigation has met this standard of
reasonableness depends on the specific circumstances of the case. Cases of torture and
extrajudicial killings – where medical evidence might disappear – and enforced
disappearances – where an individual’s life might be in imminent danger – require
immediate action. The Committee against Torture suggests that the requirement to
undertake a prompt investigation means that an investigation should be initiated
immediately when there is a suspicion of torture or ill-treatment, namely, within hours or
days.23 It has found delays of 15 months and 10 months between the alleged act and the
17
Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd rev. ed. (N.P.
Engel, 2005), pp. 320–321.
18
Karttunen v. Finland, communication No. 387/1989, views of 23 October 1992, para. 7.2.
19
European Court of Human Rights, Assenov and Others v. Bulgaria, Judgement, 28 October 1998,
para. 103.
20
European Court of Human Rights, Musayev and Others v. Russia, application Nos. 57941/00,
58699/00 and 60403/00, Judgement, 26 July 2007, para. 162; Gül v. Turkey, Case 22676/93,
Judgement, 14 December 2000, para. 89–90; Cennet Ayhan and Mehmet Salih Ayhan v. Turkey,
application No. 41964/98, Judgement, 27 June 2006, para. 88; Nachova and Others v. Bulgaria,
application Nos. 43577/98 and 43579/98, Judgement, 6 July 2005, para. 113.
21
Ristic v. Yugoslavia, communication No. 113/1998, views of 11 May 2001, para. 8.6. See also
European Court of Human Rights, Kopylov v. Russia, application No. 3933/04, Judgement, 29 July
2010, para. 169; Akulinin and Babich v. Russia, application No. 5742/02, Judgement, 2 October 2008,
para. 51.
22
European Court of Human Rights, Isayeva, Yusupova and Bazayeva v. Russia, application Nos.
57947/00, 57948/00, 57949/00), Judgement, 24 February 2005, paras. 209–213; Benuyeva and Others
v. Russia, application No.8347/05, Judgement, 22 July 2010, para. 112.
23
Blanco Abad v. Spain, communication No. 59/1996, views of 14 May 1998, para. 8.5.
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24
See Halimi-Nedzibi v. Austria, application No. 8/1991, 18 November 1993, para. 13.5; M’Barek v.
Tunisia, case 60/1996, 10 November 1999, paras. 11.5–11.7.
25
Musayev and Others v. Russia, para. 160.
26
A/HRC/12/48 paras. 270–285, 304.
27
On 13 September 1989, the Swiss Federal Council informed the States parties that it was not in a
position to decide whether the letter constituted an instrument of accession “due to the uncertainty
within the international community as to the existence or non-existence of a State of Palestine”.
28
See Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253 (p. 267, para. 43).
29
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 136 (pp. 179–180, paras. 109–111).
30
See, for instance, the Barcelona Declaration of the Euro-Mediterranean Ministerial Conference, 27–
28 November 1995.
31
A/HRC/12/48, para. 307.
32
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226 (p.
240, para. 25); Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territories, Advisory Opinion, I.C.J. Reports 2004, p. 136 (p. 178, para. 106); Case concerning
Armed Activity on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p. 168 (p. 243, para. 216); Application of the International Convention on the
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conflict as such between the duty to investigate under IHL and IHRL. Accepting that the
IHRL standards apply in the current situation of armed conflict, the question arises as to
how to interpret the more elaborate IHRL standards of investigation in the light of the pre-
eminent position of IHL as the specialized body of law designed for armed conflict.
30. The Committee believes that the gap between the expansive standards under IHRL
and the less defined standards for investigations under IHL is not so significant. Several
criteria under human rights law can be met within the context of armed conflict. Above all,
investigators must be impartial, thorough, effective and prompt; otherwise, an investigation
would be no more than a manoeuvre of artful deceit. Any investigations that meet these
criteria may be called credible and genuine. Credibility presupposes also that the
investigating bodies enjoy some measure of independence. The standard of promptness is
alluded to in the ICRC Commentary, which refers to the duty to search for and prosecute
the perpetrator with speed.
31. It is important to note the growing trend towards requiring comparable standards for
investigations under IHL and IHRL. The Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian Law, adopted by the General
Assembly on 16 December 2005 as a set of rules designed to develop the law, state that the
“obligation to respect, ensure respect for and implement international human rights law and
international humanitarian law as provided for under the respective bodies of law, includes,
inter alia, the duty to: … (b) Investigate violations effectively, promptly, thoroughly and
impartially and, where appropriate, take action against those allegedly responsible in
accordance with domestic and international law”.33
32. Nonetheless, there are constraints during armed conflict that do impede
investigations. For example, not every death during an armed conflict can be effectively
investigated. Similarly, the level of transparency expected of human rights investigations is
not always achievable in situations of armed conflict, particularly as questions of national
security often arise. The nature of hostilities might obstruct on-site investigations or make
prompt medical examinations impossible. The conflict might have led to the destruction of
evidence, and witnesses might be hard to locate or be engaged in conflict elsewhere. When
the fighting is over, some of these constraints tend to lose their relevance. As summarized
by the Special Rapporteur on extrajudicial, summary or arbitrary executions: “On a case-
by-case basis a State might utilize less effective measures of investigation in response to
concrete constraints. For example, when hostile forces control the scene of a shooting,
conducting an autopsy may prove impossible. Regardless of the circumstances, however,
investigations must always be conducted as effectively as possible and never be reduced to
mere formality.”34
33. The purpose and objectives of IHL also affect the legal significance of some IHRL
standards of investigation beyond the common criteria of independence, impartiality,
thoroughness, effectiveness and promptness mentioned above. The overriding concern of
IHRL to protect the rights and freedoms of individuals from the abuse of State power is not
the primary focus of IHL. The latter seeks first to balance the lawful use of force with the
protection of individuals. Consequently, some human rights standards, such as the
involvement of victims in investigations, while desirable, are not requisite for evaluating
the inquiries into alleged IHL violations. However, the Committee acknowledges that, in
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the light of the Basic Principles and Guidelines on the Right to a Remedy and Reparations,
victims’ access to justice is increasingly being accepted as a relevant criterion applicable to
investigations into alleged war crimes.
34. Finally, international humanitarian law and human rights standards do not require
any specific body to undertake investigations. Military justice systems usually take the lead
in inquiring into alleged violations of IHL. This is consistent with Additional Protocol I to
the Geneva Conventions reflecting customary law principles, which places a duty on High
Contracting Parties to require military commanders “to prevent and, where necessary, to
suppress and to report to competent authorities breaches of the Conventions and of this
Protocol” as well as “to initiate disciplinary or penal action against violators” (art. 87).
Military investigators have the specialized knowledge of combat conditions and munitions
that are important to such investigations. However, the use of military courts for
prosecution of alleged human rights violations has been controversial and has been found to
lack the independence and impartiality required under IHRL.35 Nonetheless, both military
and civilian justice systems may properly undertake investigations of incidents occurring in
armed conflict, the only requirement being that the mechanisms employed conform to the
various standards discussed above.
A. Investigations conducted
35. Israel has issued three reports detailing the proceedings it has undertaken, including
investigations into some of the allegations raised in the FFM report (see footnote 2 above).
At the centre of Israel’s investigation system is the Military Advocate General (MAG). He
supervises the rule of law in the military, acts as legal adviser to the Chief of Staff and to
other military authorities in respect of law and justice, and provides legal supervision of
disciplinary law in the military.36
36. The MAG relied on three mechanisms for examining and investigating allegations
related to the Gaza conflict. The first is the operational debriefing or command
investigation: an “inquiry held in the army, in accordance with IDF orders, regarding an
event which occurred during training or operational activity, or in relation to them”.37 The
command investigation forwards its findings to the MAG, who decides whether or not to
order a criminal investigation. Ordinary command investigations examined 90 allegations,
including civilian injuries and deaths, and destruction of civilian property.
37. Second, the Minister of Defense and the Chief of General Staff may appoint an
officer or group of officers, often high-ranking, to investigate in confidence high-profile or
sensitive matters and then submit their findings and recommendations to the MAG. These
investigations are known as special command investigations. On 20 January 2009, the
Chief of General Staff ordered five special command investigations headed by Colonels not
personally related to the incidents. The investigations covered 30 alleged violations of IHL
grouped as follows: harm to a large number of civilians not directly participating in the
hostilities; damage to United Nations and international facilities; shooting at medical
facilities, buildings, vehicles and crews; destruction of private property and infrastructure
35
See, e.g., E/CN.4/1995/61, para. 93.
36
Military Justice Law, sect. 178.
37
Ibid., sect. 539A (a).
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B. Assessment
Positive developments
42. The Committee welcomes certain positive steps that have resulted from Israel’s
investigations into complaints raised in relation to the Gaza conflict. The adoption of new
written procedures for the protection of civilians in urban warfare should help to increase
that protection in armed conflict and ensure that IDF places more emphasis on civilian
safety. The establishment of a “humanitarian officer” for every fighting battalion with
responsibility for handling the civilian population should be highlighted as an innovative
means to educate soldiers and advise commanders on the protection of civilians and civilian
property and the planning and coordination of humanitarian assistance. Likewise, the New
Order Regulating the Destruction of Private Property for Military Purposes should help to
minimize such destruction in the future. The establishment of a clear doctrine and strict
38
“January update”, para. 96.
39
Ibid., paras. 124–126.
40
Ibid., para. 50.
41
Ibid., para. 132.
42
Ibid., para. 67.
43
“Second update”, para. 10.
44
“January update”, paras. 117–120.
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orders on the use of munitions containing white phosphorous is a step forward. In addition,
the Committee notes the establishment of the Turkel Commission, which includes two
international observers.45 Part of its mandate is to examine “the question of whether the
mechanism for examining and investigating complaints and claims raised in relation to
violations of the laws of armed conflict, as conducted in Israel generally,… conform with
the obligations of the State of Israel under the rules of international law”.46
43. In spite of the many investigations undertaken and the sophisticated nature of
Israel’s military justice system, the Committee has concerns about the investigations
conducted into the Gaza conflict thus far.
Lack of cooperation
44. As a result of the lack of cooperation from Israel, the Committee could rely only on
three public reports of the Government, supplemented by information from NGOs and
witnesses. The information in the three reports is inadequate as a basis for a reliable
evaluation of the independence, effectiveness and genuineness of investigations into such
serious allegations. The available information is extensive, providing detail on many
investigations although not on all. The Committee would have preferred to speak directly
with investigators to assess the thoroughness and effectiveness of their work. Instead, the
Committee is left with many questions. The fact that it had difficulty verifying whether
Israel had investigated all 36 incidents in the FFM report illustrates the opacity of the
information available. Owing to the lack of cooperation, the Committee is unable to make a
definitive determination as to whether the investigations carried out by Israel meet the
criteria in resolution 13/9.
45. First, in some cases, the Committee could not ascertain whether Israel had met its
duty to investigate in relation to all 36 incidents. For example, the Committee was unable to
find any information as to whether or not an investigation into the death of Muhammad
Hajji and the shooting of Shahd Hajji and Ola Masood Arafat47 was launched. This incident
might have been the subject of one of the 90 command investigations or the first special
command investigation that considered harm to civilians not directly participating in the
hostilities. No reference is made to any investigations into the alleged deprivation of liberty
of AD/02.48 Likewise, the Committee was unable to find information on whether inquires
were made into the allegations of indiscriminate killing of members of the Abu Halima
family49 and instead had to rely on NGO material.50 Cooperation with Israel would have
enabled the Committee to verify that information.
46. In other cases, it is evident that investigators compiled a good deal of information. A
case in point is the incident at the el-Bader flour mill, destroyed by an air attack.51 The
MAG reopened the investigation upon receiving new evidence and provided further
explanations to support his conclusion that the mill had not been intentionally targeted. The
example illustrates a serious attempt on the part of Israeli investigators to explain what
happened at the flour mill.
45
“Second update”, paras. 158–163.
46
Ibid., para. 160.
47
A/HRC/12/48, paras. 745–754.
48
Ibid., paras. 1127–1142.
49
Ibid., paras. 788–801.
50
Human Rights Watch, Turning a Blind Eye: Impunity for Laws-of-War Violations during the Gaza
War (April 2010), p. 40, footnote 132.
51
A/HRC/12/48, paras. 913–941.
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47. A second category of cases raises questions about the extent of the inquiries
undertaken. For example, the Committee would have benefited from clarification from
Israeli investigators with respect to the shooting of Majda and Rayya Hajaj at Juhr ad-Dik
on 4 January 2009.52 The Israeli report of the investigation into this incident notes the
indictment of a soldier on the charge of manslaughter for shooting a civilian at the time and
place where the Hajaj women – one of whom was carrying a white flag – were killed.53 Yet,
the press release announcing the soldier’s indictment appeared to concern an incident where
a man, rather than two women, was shot, suggesting that the indictment may relate to an
entirely different incident.54 The admitted confusion as to the identity and number of the
victims at Juhr ad-Dik that day calls into serious question whether a full and prompt
investigation was undertaken into the shooting of the Hajaj women.
48. Another case concerned the Abd al-Dayem condolence tents incident.55 The Fact-
Finding Mission alleged that Israeli soldiers had launched a deliberate attack on civilians,
killing 5 and injuring 20. The results of the command and criminal investigations suggest
instead that soldiers were firing on combatants launching a Grad rocket and that soldiers
“did not identify any civilians in the vicinity” of “the terrorist squad”.56 The Committee
notes the discrepancy in the two versions of the incident. Owing to the lack of cooperation
from Israel, it is unable to confirm that extensive efforts were taken by investigators to
reconcile these conflicting accounts.
49. In the al-Quds hospital case,57 there is insufficient information to determine with any
accuracy what the results of the inquiry demonstrate. Israel has communicated very little
with respect to this incident. The first Israeli report indicated that an inquiry was ongoing
into attacks on medical facilities.58 The second report noted that the third special command
investigation examined incidents of shootings at medical facilities, buildings, vehicles and
crews.59 The third report reflected that disciplinary action was taken against some officers
as a result of these attacks,60 but it is unclear whether that disciplinary action corresponded
to the attack on al-Quds hospital or to attacks on other medical centres. The Committee has
no basis for assessing whether this investigation was, in fact, effective and thorough.
50. Third, owing to a lack of cooperation from Israel, the Committee is not in a position
to evaluate a range of allegations in the FFM report about the way in which the Israeli
system of military investigations actually functions. For example, it is alleged that: the
system of command investigations was not effective owing to the failure of investigators to
comply with regulations and orders;61 command investigations obstructed criminal
investigations by destroying the scene of the crime and obstructing and delaying the process
of identifying and collecting evidence;62 penalties imposed on Israeli offenders had been
noticeably more lenient than those imposed on Palestinians;63 command investigations had
52
Ibid., paras. 764–769.
53
“Second update”, paras. 99–102.
54
See IDF Military Advocate General takes disciplinary action, indicts soldiers following investigations
into incidents during Operation Cast Lead, 6 July 2010. Available from
http://dover.idf.il/IDF/English/Press+Releases/10/07/0601.htm.
55
A/HRC/12/48, paras. 867–885.
56
“Second update”, paras. 113–117.
57
A/HRC/12/48, paras. 596–629 (al-Quds hospital) and paras. 630–652 (al-Wafa hospital).
58
“The operation in Gaza”, para. 376.
59
“January update”, paras. 111–112.
60
“Second update”, para. 60.
61
A/HRC/12/48, para. 1816.
62
Ibid., para. 1817.
63
Ibid., paras. 1818 and 1825.
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Promptness
51. The Committee has reservations as to whether investigations were sufficiently
prompt. Promptness requires investigations to commence and progress with reasonable
expedition. The Committee notes that many Palestinian witnesses were interviewed only at
the very end of 2009, while many allegations of IHL and IHRL violations were reported
almost immediately at the end of “Operation Cast Lead” in January 2009 and at the latest in
September 2009 with the publication of the FFM report. Such delays can result in evidence
being lost or compromised, and in the kind of confusing and conflicting testimony that
affected the results of the inquiries into the shooting of Majda and Rayya Hajaj and the
attack on the el-Bader flour mill referred to above. Without additional information on when
specific investigations actually got under way, the Committee is not in a position to make a
definitive finding on the expeditiousness with which Israel conducted the relevant
proceedings.
64
Ibid., para. 1819.
65
Ibid., para. 1820.
66
Ibid., para. 1829.
67
Ibid., para. 1831.
68
See, e.g., HCJ 4723/96, Avivit Atiyah v. Attorney-General 51(3) P.D. 714; HCJ 425/89, Jamal Abdel
Kader Mahmoud v. the Chief Military Prosecutor, 43(4) P.D. 718; HCJ 372/88, Fuchs v. the Military
Advocate General, 42(3) P.D. 154; HCJ 425/89, Zofan v. the Military Advocate General 43(4) P.D.
718; Cr.A. 6009/94, Shafran & Ors v. the Chief Military Prosecutor, 48(5) P.D. 573; HCJ 442/87,
Shaul v. the Military Advocate General, 42(2) P.D. 749; HCJ 4550/94, Isha v. the Attorney-General,
49(5) P.D. 849.
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serious violations of IHL and IHRL in the FFM report directly link to the advice he
provided.
54. Indeed, Israel publicly stated that the MAG gave legal advice on IHL to
commanders at all levels leading up to and during the Gaza conflict and that “the lawyers
examined the legality of planned targets, participated in the operational planning process,
helped direct humanitarian efforts and took part in situation assessments, exercises and
simulations”.69 However, as noted above, the Fact-Finding Mission strongly criticized the
objectives, strategy and policy underlying the entire Gaza operation.70 The link between the
advice given and the allegations in the FFM report underlines the importance of the MAG
not only acting impartially, but also being seen to act impartially.
55. One way to dispel any suspicion of a lack of impartiality is to examine the results of
the investigations. Of the 36 incidents in the FFM report, the Committee notes the
following findings: no violation or discontinuation of proceedings for various reasons (20);
unclear results (7); disciplinary action taken (3); indictments (1); ongoing criminal
investigations (5). Although the Committee does not have access to the full evidence and
reasoning behind these decisions, given the seriousness of the allegations, the military
investigations thus far appear to have produced very little.
56. The Committee notes that civilian oversight of the MAG decisions provides a
commendable mechanism to protect against arbitrariness. However, the Committee is not
aware of any requests for judicial review of a decision of the MAG related to investigations
connected to the Gaza conflict. While any interested party, including NGOs, can seek a
High Court judicial review, even in the course of armed conflict, Palestinians in Gaza face
significant hurdles.
69
“The operation in Gaza”, para. 216.
70
A/HRC/48/12, para. 1895.
71
Consultation with Adalah, Amman, 29 July 2010; consultation with the Palestinian Centre for Human
Rights, Gaza City, 15 August 2010.
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where Israel admitted it had made an operational error leading to the deaths of 23 civilians
– PCHR filed the compensation form on 11 February 2009 and a criminal petition on 18
May 2009, only to receive a formal letter acknowledging receipt of its petition on 13
September 2009 and requesting a power of attorney (which PCHR had already filed).
PCHR has received no further information on the progress of this compensation claim.72
Furthermore, Palestinian witnesses in Gaza are not always granted a permit to travel out of
Gaza and so cannot reach courts in Israel, particularly since the closure of the Gaza Strip in
June 2007.73 Consequently, access to justice is rarely guaranteed in practice to Palestinian
complainants.
59. The experience of victims and witnesses when giving testimony at the border and in
accessing Israeli justice more broadly helps to explain why Palestinians have little
confidence in the Israeli investigations. The Committee interviewed 28 witnesses, of whom
19 had given evidence at the Erez border. Witnesses had had to wait long hours at the
border. One of the witnesses in the al-Samouni case reported having to wait 13 hours and
being refused access to sanitary facilities for hours, finally being allowed to use a toilet, but
only in the company of soldiers.74 Another witness to the Halawa incident had to wait four
hours without water or food; the witness was forced to wait an hour and a half to use a
toilet.75 Another person related to the Abd Rabbo incident had to wait six hours at the
border and was sent home without being interviewed.76
60. In the view of the Palestinians residing in Gaza, the Israeli military justice system is
simply the extension of the same military system that organized and carried out “Operation
Cast Lead”. Most distrust its ability to deliver justice. For this reason, many potential
witnesses declined to appear in Erez. Perhaps this is not surprising since victims of military
operations naturally perceive a deep bias and predisposition towards self-preservation and
national interests among those representing the adversary State. However, in the interests of
performing effective and impartial investigations, the Committee emphasizes the
importance of treating all victims and witnesses, whether Israeli or Palestinian, with dignity
and courtesy.
72
Discussions with PCHR, Gaza, 15 August 2010.
73
PCHR, “Memorandum for the United Nations Committee of Experts”, annex I, August 2010.
74
Interviews, Gaza, 15 August 2010.
75
Interviews, Gaza, 16 August 2010.
76
Interviews, Gaza, 15 August 2010.
77
A/HRC/12/48, paras. 1394–1404 (use of force during demonstrations in the West Bank); paras. 1411–
1418 (violence by settlers against Palestinians in the West Bank).
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the Gaza Strip, including the Legislative Council building, was a legitimate target, warning
that it was incompatible with the principle of distinction.78
64. Finally, Israel has not conducted investigations into decisions made at the highest
levels about the design and implementation of the Gaza operations.79 A core allegation in
the FFM report was that the systematic and deliberate nature of the destruction in Gaza left
the Mission “in no doubt that responsibility lies in the first place with those who designed,
planned, ordered and oversaw the operations”.80 Those alleged serious violations go beyond
individual criminal responsibility at the level of combatants and even commanders, and
include allegations aimed at decision makers higher up the chain of command. The official
inquiry must be conducted by a truly independent body, given the obvious conflict inherent
in the military’s examining its own role in designing and executing “Operation Cast Lead”.
78
A/HRC/12/48, para. 392.
79
In this regard, the FFM report names particular individuals, including the Deputy Prime Minister, Eli
Yishai, and the Foreign Minister, Tzipi Livni, as well as Major-General Dan Harel, whose statements
during “Operation Cast Lead” support its contentions that the Operation was indeed intended to cause
disproportionate destruction and violence against civilians as part of a deliberate policy. The Fact-
Finding Mission also charges that Israel’s strategic goals demonstrated a qualitative shift from
relatively focused operations to massive and deliberate destruction. See A/HRC/12/48, paras. 1177–
1216.
80
Ibid., para. 1895.
81
Issa Abu Sharar, Chair and former Head of the Supreme Court and former President of the Supreme
Judicial Council; Judge Zuhair al-Surani, former Head of the Supreme Court and former President of
the Supreme Judicial Council; Ghassan Farmand, Professor of Law at Birzeit University; Yasser al-
Amuri, Professor of International Law at Birzeit University.
82
See Decree concerning the formation of an independent commission to follow up on the Goldstone
report, article 2 (A/64/651, annex II, attachment I).
83
A/64/890, annex II, chap. II, para. 60.
84
Ibid., para. 62.
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85
Ibid., para. 63.
86
Ibid., paras. 68–70.
87
The Commission covered allegations in the FFM report as follows: arrest and detention by security
forces (A/HRC/12/48, paras. 1555–1558); torture and ill-treatment (paras. 1559–1560); freedom of
association (para. 1561); freedom of the press; freedom of expression and opinion (paras. 1564–
1570); freedom of assembly (paras. 1571–1575). The Commission also attempted to cover
allegations of violations by armed groups and security services in the Gaza Strip including: launching
of attacks within civilian areas (paras. 446–460); detention of Gilad Shalit (paras. 1336–1344);
killings, torture and other human rights violations (paras. 1345–1372); and rocket and mortar attacks
by Palestinian armed groups on Israel (paras. 1594–1691).
88
A/64/890, annex II, chap. II, para. 62.
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73. The Commission set out the limitations impeding its work, including the fact that it
was unable to travel to the Gaza Strip. While these limitations affected the thoroughness of
its work, the Commission was able to interview victims, witnesses and representatives of
human rights organizations in the Gaza Strip by videoconference.89 However, it is unclear
to what extent its report will lead to criminal investigations and prosecutions there.
74. The Committee also has some concerns about the promptness of the investigations.
The FFM report published allegations of violations in September 2009. Yet the
Commission was established only in January 2010, presumably in response to General
Assembly resolution 64/10 (para. 4) rather than to the FFM report itself. This delays the
start of criminal investigations and prosecutions. That said, the Committee observes that the
Commission undertook a task of significant proportions with reasonable expedition so that
it was able to submit its results to the Secretary-General in a timely manner.
75. Finally, the Committee emphasizes that investigations are only the first step to
achieving accountability for alleged human rights violations and that the prosecution of
perpetrators, as well as the provision of an effective remedy to those whose rights have
been violated, should follow promptly. At the time of writing, the Committee had not
received any information to indicate that criminal investigations or prosecutions were
actually under way in the West Bank. On 6 September 2010, the Committee received a
copy of a letter sent by the Prime Minister, Mr. Sallam Fayyad, to the Chair of the
Commission, Mr. Issa Abu-Sharar, reiterating the commitment of the Council of Ministers
“to the full implementation of the recommendations contained [in the Commission’s report]
towards respecting and ensuring respect of human rights and public freedoms in Palestine”.
The Committee strongly encourages the Palestinian Authority to live up to this commitment
through prompt and effective prosecutions where appropriate.
76. The de facto Gaza authorities established two committees in response to General
Assembly resolution 64/254. The United Nations received the report of the first Committee
in January 2010 and the report of the second in August 2010 (see footnote 4 above).
77. The first Committee was an entirely governmental body headed by the Minister of
Justice of the de facto Gaza authorities. The other Committee members were members of
the Prime Minister’s Legal Council, the Under-Secretary of the Ministry of Foreign Affairs,
the Under-Secretary of the Ministry of Justice, the Chair of the Military Jurisdiction
Authority, the Public Prosecutor, the Head of the Central Documentation Committee, a
Judge of the Court of Appeal, the Director-General of Legal Affairs at the Ministry of
Justice, the Director-General of Fatwa and Legislation, the Director-General of the
Legislative Council, and the General Controller of the Ministry of the Interior. Its report
focused entirely on Israeli Government policy vis-à-vis the Gaza Strip and the conduct of
Israeli military troops during the Gaza conflict.
78. It did not carefully consider the violations allegedly perpetrated by the de facto Gaza
authorities or associated armed groups. However, in its report, it stated that all claims
concerning the conduct of the de facto Gaza authorities and armed groups should be
directed to the Office of the Prosecutor-General.
79. The report, while submitted as a response to the FFM report, did not discuss the
Fact-Finding Mission’s recommendations in detail, nor did it propose measures to address
alleged violations committed by the de facto Gaza authorities or the armed groups under its
89
Ibid., para. 66.
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control. The report is not an investigative report, but simply a description of what, in the
view of the de facto Gaza authorities, the situation currently is in the Gaza Strip. It
primarily reiterated the allegations of the FFM report against Israel.
80. However, the report did announce the establishment of a follow-up Independent
Legal Committee (hereinafter “second Gaza Committee”), composed of three national and
three international experts, to implement the Fact-Finding Mission’s recommendations “in
accordance with international standards.”
81. This second Gaza Committee90 presented its report to this Committee in Gaza on 15
August 2010. Its national experts were introduced as Gaza-based lawyers with many years’
experience in international law practice. Its three international experts were international
lawyers from Egypt and Saudi Arabia. They were unable to enter the Gaza Strip and were
limited to communicating with the national members by telephone. The Committee accepts
that the de facto Gaza authorities sought to establish an independent body to undertake
investigations.
82. The second Gaza Committee made field visits, interviewed victims and officials, and
reviewed criminal investigation files. However, its report did not include sufficient
information to demonstrate systematically the steps it took to collect and evaluate evidence.
More details would have shed light on the thoroughness of its investigations.
83. The second Gaza Committee’s report did give examples of criminal proceedings
related to alleged violations of IHL and IHRL, including a case where a number of
defendants were convicted and imprisoned, while others were given suspended prison
sentences. Some cases were settled out of court between the families involved. While in the
Gaza Strip, the Committee requested the Prosecutor-General to provide it with specific
information about the number and progress of the investigations his Office had undertaken.
His Office subsequently responded in writing, but its submission contained no statistics or
other data substantiating the report’s reference to investigations or prosecutions undertaken
by the de facto Gaza authorities.
84. The second Gaza Committee’s report stated in addition that all persons detained on
political grounds had been released; Palestinian groups had not deliberately violated the
principle of distinction; there was no credible testimony to support the charge that
Palestinian armed groups had intentionally targeted Israeli civilians when launching rockets
against Israeli targets; mosques and civilian buildings had not been used as storage space or
bases for weapons; and there was no evidence that Palestinians had used civilians as human
shields.
85. The Committee is not in a position to ascertain the veracity of any of these
assertions.
86. The Committee also has concerns related to the impartiality of the second Gaza
Committee’s investigations. The report did not seriously address the recommendations by
the Fact-Finding Mission to the de facto Gaza authorities. This is in stark contrast to the
report of the Palestinian Authority’s Commission, which demonstrated a sincere effort on
its part to investigate and expose the culpability of the government authorities. Instead, the
second Gaza Committee – like the first – addressed recommendations to the United Nations
and the international community, while its conclusions concentrated on criticizing Israel’s
policies and actions towards Gaza, rather than on addressing those of the de facto Gaza
authorities. This gives the impression that the investigations sought to deflect attention from
90
Mr. Abdollah Alasha’al (Chair, Egypt); Mr. Basem A’alem (Saudi Arabia); Mr. Mahmood
Almobarak (Saudi Arabia); Mr. Muhammad No’man Elnahhal (Gaza); Mr. Salem Elsaqqa (Gaza);
Mr. Nazem Owaida (Gaza).
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the alleged violations of IHL and IHRL by the de facto Gaza authorities and raises concerns
about their credibility and genuineness.
87. Moreover, some aspects of the report sought to explain away allegations of serious
violations of IHL. For example, the second Gaza Committee suggested that the
unavailability of modern military technology could not preclude armed groups from
defending themselves. This implicitly acknowledges the truth of the allegations in the FFM
report that armed groups violated IHL by launching weapons at Israel that were incapable
of striking precise targets, while seeking to justify the violation and absolve the
perpetrators.
88. The investigations of the second Gaza Committee, which began more than a year
after the Gaza conflict, also raise questions as to the promptness of its inquiry. The report
set out reasons for the delay, noting the difficulties inherent in undertaking effective
investigations in the wake of the destruction caused by the conflict. This Committee
understands that the chaos resulting from armed conflict had an impact on the second Gaza
Committee’s capacity to undertake investigations. In this sense, the strict application of the
standard of promptness might not be appropriate.
VI. Conclusions
A. Israel
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requirements for investigations under IHRL, although they are not strictly applicable
to investigations under IHL, owing to the differing objectives of investigations under
these two bodies of law.
93. Nonetheless, without the full participation of victims and witnesses in
investigations, their effectiveness and thoroughness suffer. The Committee notes that
international standards are evolving in this area, with ever stronger emphasis on
affording access to justice for victims even with respect to investigations into alleged
violations of IHL.
94. The Committee does not have any information on whether Israel has
undertaken investigations into the allegations raised in the FFM report concerning
IHRL violations in the West Bank. In this regard, Israel has not met its duty, under
the International Covenant or under the Convention against Torture, to investigate
these claims.
95. Similarly, there is no indication that Israel has opened investigations into the
actions of those who designed, planned, ordered and oversaw “Operation Cast Lead”.
The FFM report contained serious allegations that officials at the highest levels were
complicit in violations of IHL and IHRL. Israel has not met its duty to investigate this
charge. The Committee observes that the military justice system would not be the
appropriate mechanism to undertake such an investigation, given the military’s
inherent conflict of interest.
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101. The second report, prepared by three national and three international legal
experts, provides some information about the actual measures taken to redress the
violations that were alleged, but fails to substantiate assertions that all political
prisoners have been released and criminal prosecutions have taken place in response
to the FFM report. On the basis of the information before it, the Committee cannot
conclude that credible and genuine investigations have been carried out by the de
facto authorities in the Gaza Strip.
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Annex I
[English only]
Diplomatic missions
Permanent Mission of the Arab Republic of Egypt to the United Nations in Geneva
Permanent Mission of Israel to the United Nations in Geneva
Permanent Mission of the Hashemite Kingdom of Jordan to the United Nations in Geneva
Permanent Observer Mission of Palestine to the United Nations in Geneva
Domestic authorities
Investigative bodies
Non-governmental organizations
Addameer, al-Haq, Badil, Cairo Institute for Human Rights, Christian Aid, Defence
National (Israel), Geneva for Human Rights, Human Rights Watch, International
Federation for Human Rights (FIDH), Save the Children, UN Watch, the Women’s
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International League for Peace and Freedom, the World Council of Churches. In addition,
the Committee received submissions from: Adalah, al-Mezan, B’Tselem, Hamoked, the
Palestinian Centre for Human Rights, the Euro-Mediterranean Human Rights Network
(EMHRN).
Independent experts
International organizations
26
Annex II
[English only]
Table: Incidents in the report of the United Nations Fact-Finding Mission on the Gaza Conflict
A/HRC/15/50
17. Deir al-Balah police attacks 393-438 Command investigation No violation
18. Abbas police station 393-438 Command investigation No violation
19. Zeytoun police stations 393-438 Command investigation No violation
20. Al-Shujaeiyah and al-Tuffah police station 393-438 Command investigation No violation
27
28
A/HRC/15/50
Use of Palestinians as human shields
Incident Paragraphs Investigation body Status
FFM report
21. Abbas Ahmed Ibrahim Halawa 1064-1075 MPCID No violation
22. Majdi Abd Rabbo 1033-1063 MPCID Disciplinary action
23. Mahmoud Abd Rabbo al-Ajrami 1076-1085 MPCID No violation
24. AD/03 1086-1088 MPCID Discontinued
insufficient evidence
Arbitrary detention
Incident Paragraphs Investigation body Status
FFM report
25. Al-Atatra incident 1112-1126 Sixth special command investigation Ongoing
26. AD/02 1127-1142 MPCID Unclear
27. AD/03 1143-1164 MPCID Discontinued
insufficient evidence
28. AD/06 1107 Unclear Unclear
Use of harmful weapons
Incident Paragraphs Investigation body Status
FFM report
29. Al-Quds hospital 596-629 Special command investigation Unclear
Possible disciplinary action
30. Al-Wafa hospital 630-652 Special command investigation Unclear
Possible disciplinary action
31. UNRWA 543-595 Special command investigation Apology, disciplinary
action, compensation
Attacks on infrastructure and food production
Incident Paragraphs Investigation body Status
FFM report
32. El-Bader flour mill 913-941 Command investigation No violation
33. Sawafeary chicken farm 942-961 Command investigation No violation
34. Abu Jubba cement company 1012-1017 Command investigation No violation
Attacks on water and sewage installations
Incident Paragraphs Investigation body Status
FFM report
35. Gaza wastewater treatment plant 962-974 Command investigation No violation
36. Namar wells group 975-986 Command investigation No violation