Israeli army lags in reforming probes into Palestinian deaths
By Gili Cohen
[8 September 2014] - A year and a half after the Turkel Commission published recommendations for improving the way Israel investigates suspected violations of the laws of war, the army has yet to implement key suggestions.
The Military Police, for example, hasn’t set up a special division to investigate incidents that occur during operations in the West Bank, nor has the Military Advocate General’s Corps set precise deadlines for how long such investigations should take. As a result, the B’Tselem and Yesh Din human rights groups say they have no confidence in military probes into suspected crimes against Palestinians, charging that the system suffers from “serious systemic problems that make it unable to conduct professional investigations.”
B’Tselem even took the unusual step of refusing the MAG Corps’ request for information on potential crimes by Israeli soldiers during the recent war in Gaza. B’Tselem director Hagai El-Ad said that based on experience after previous rounds of fighting in Gaza, his group does not believe that the corps’ investigations will get at the truth or make sure soldiers responsible for violations are punished.
“Since no significant change has been made in Israel’s law enforcement system – of which the MAG Corps is part – it seems the suspicions won’t be investigated this time either, and that there’s no intention of investigating the legality of the orders given the army or the responsible parties in the government or among senior officers,” he wrote in a letter to the corps.
Military prosecutors say they regret the NGO’s unwillingness to cooperate with the army in its effort to investigate various incidents. In most cases, the army added, it initiates investigations into incidents where wrongdoing by soldiers is suspected even before it is contacted by human rights groups. The Turkel Commission was created to investigate the raid on the Mavi Marmara, a Turkish-sponsored aid flotilla that tried to break the Gaza blockade in May 2010, and which ended in 10 deaths to activists aboard. But the panel also examined Israel’s method of investigating suspected war crimes.
Its report, published in February 2013, concluded that “in general,” Israel’s investigative system meets the demands of international law. But it also issued 18 recommendations for improving the system.
Israel Defense Forces officials say they have started the process of implementing the Turkel recommendations, and that some have recently been instituted in practice, and indeed, some have. For instance, responsibility for investigating suspects’ complaints of abuse during Shin Bet security service interrogations has been transferred from the agency to the Justice Ministry. Also, the IDF set up a General Staff committee to investigate questionable incidents during operations.
But other recommendations haven’t been implemented. For example, Yesh Din and B’Tselem say legislation hasn’t been passed to bring Israeli criminal law into compliance with international law, nor have senior officers or civilian officials been held criminally responsible when their underlings committed crimes.
One significant change, instituted in April 2011, is that the Military Police now automatically investigates all killings of Palestinians by Israeli forces in the West Bank that don’t occur during “actual combat.”
Yet in May, Haaretz found that of 18 probes into Palestinian deaths opened in the last two years, only three had been completed. According to Yesh Din, the Military Police opened 199 investigations in 2013, mainly for violence against Palestinians, yet these probes produced only six indictments.
According to statistics from the MAG Corps, since November 2012, 20 investigations were opened into deaths in the West Bank, of which six were closed, two generated indictments, and another four are on the verge of a decision. The rest of the investigations are continuing.
The MAG Corps also hasn’t complied with the commission’s suggestion that it publish annual statistics on how long its investigations take.
The IDF said that during the deliberations of the Ciechanover Committee, which is discussing ways to implement the Turkel recommendations, the MAG Corps suggested a maximum length of time for a military investigation. According to an IDF officer, the time set was less than two years, and is a shorter period than required for a civilian criminal investigation. There the attorney general’s guidelines call for an investigation into a crime carrying up to a 10-year sentence to be completed in 18 months, while the probe into crimes with longer sentences must be completed within two years.
Another key recommendation was that the Military Police set up special “operational affairs” units “in the areas where the incidents to be investigated happen” – that is, in the West Bank. This hasn’t been done either.
The IDF said it has begun the staff work to set such a body to be staffed by “operational” investigators who will focus solely on such violations. As part of this plan, another Military Police base will be set up that will have two branches, one in the West Bank and one in the south, which will focus on investigating operational incidents. According to a military source, this issue is awaiting the approval of the deputy chief of general staff.
The Turkel Commission also recommended that the MAG Corps publish an updated and comprehensive document of guidelines governing the IDF investigative mechanisms, but this hasn’t been done.
'Not just for appearance’s sake’
Yesh Din Executive Director Neta Patrick said she considers the system “broken,” and that “adopting the Turkel recommendations could have been a very good start” toward fixing it. “Investigations must be real and effective, not investigations for appearance’s sake,” she added.
The MAG Corps responded that it is implementing the recommendations of the Turkel Commission to the degree possible, and has told the Ciechanover Committee how it plans to assimilate the recommendations. However, army sources note that this is a lengthy process that partially began even before the commission’s recommendations were made, and the process is expected to continue.
The military noted, however, that one of the Turkel recommendations, that investigations be opened with only a few weeks after the incident in question, is being implemented for Operation Protective Edge that ended last month. During the fighting itself, the MAG Corps began to examine dozens of incidents, using a Turkel-recommended mechanism in which professional committees of military men and a legal adviser examine the events.
Even before the fighting began, military sources noted, Chief of General Staff Lt. Gen. Benny Gantz named a permanent General Staff committee, headed by Maj. Gen. Noam Tibon, that examines claims of wrongful incidents during battle. Six teams are operating in this framework that include jurists and intelligence people. Some of teams have already met with commanders who fought in Gaza, including battalion commanders. The MAG Corps plans to announce within a few days the results of the examinations of several incidents by this General Staff committee.
Yesh Din and B’Tselem are especially critical of the army’s investigations of incidents during previous operations in Gaza. After Operation Cast Lead in 2009, for instance, the IDF examined around 400 suspected violations of the laws of war. Of these, 52 resulted in Military Police investigations, including one in which a colonel was investigated for negligence over an air strike that killed 21 members of the Samouni family.
Few trials after Cast Lead
But these investigations produced only three trials. One soldier was sentenced to seven and a half months for stealing a credit card, two soldiers received a three-month suspended sentence and were demoted for using a 9-year-old boy as a human shield, and one soldier was sentenced to 45 days in jail for killing a Palestinian after being convicted in a plea bargain for illegally using a weapon. The Samouni case was closed.
In addition, six officers faced disciplinary charges over three other incidents: shelling that hit an UNRWA facility; shelling that killed 15 Palestinians in a mosque, including nine civilians; and the use of a Palestinian as a human shield.
In 2012, following Operation Pillar of Defense in Gaza, the IDF examined 82 incidents but opened no criminal investigations at all. Five incidents are still being evaluated by military prosecutors, and in one case the investigating team was replaced during the probe, the army said.
Regarding the low number of investigations and indictments, the MAG Corps says most cases where civilians are harmed or property damaged stem from so-called collateral damage during an attack on a military target, or from simple mistakes that inevitably happen during wars.
“That’s regrettable, but in itself, it certainly doesn’t attest to violations of the laws of war. It stems directly from the operations of the Palestinian terrorist organizations, which chose to commit their criminal activity under cover of a civilian population,” said Col. (res.) Liron Libman, a former chief military prosecutor and former head of the IDF’s international law division.
Noting that there’s no “objective index” for how many indictments must result from a given number of investigations, Libman added: “A prosecutor in a system that aspires to justice cannot be a contractor for convictions or indictments. That violates fundamental concepts of justice. Every criminal incident must be examined on its own merits, and sometimes, even if there’s an initial suspicion, there isn’t always evidence that allows for a trial.”
IDF: 'Working through Ciechanover team’
The IDF Spokesman said: “The IDF recognizes the importance of the detailed recommendations in the Turkel report. It is working through the team headed by Dr. Ciechanover, which was appointed by the Israeli government, to present parameters for carrying out the recommendations according to the rationale behind them. It should be stressed that the implementation of some of the recommendations began before publication of the report, and continued afterward. The implementation of other recommendations requiring new orders and additional resources has begun, and will soon be completed. The team will soon finish its work.”