The Occupation’s Fig Leaf: Israel’s Military Law Enforcement System as a Whitewash Mechanism

Report summary, May 2016

The military law enforcement system is supposed to handle complaints filed against soldiers for harm caused to Palestinians in the West Bank, including cases of violence and gunfire that resulted in injury or death. Such harm is endemic to the occupation, which has been in place for nearly fifty years.

The role of the military law enforcement system has been narrowly defined to begin with: it investigates only specific incidents in which soldiers are suspected to have acted in breach of the orders or directives they were given. The system does not investigate the orders themselves nor the responsibility of those who issue them or determine the policy. As such, the system is oriented toward low ranking soldiers only, while senior military and government officials, including the Military Advocate General (MAG), are absolved in advance of any responsibility. In this state of affairs, even if the system had fulfilled its tasks, its contribution to law enforcement would still remain limited. However, an examination of the operation of the military law enforcement system indicates that it makes no attempt to fulfill even this limited mandate.
Ever since B’Tselem was established more than 25 years ago, it has applied to the MAG Corps regarding hundreds of incidents in which Palestinians were harmed by soldiers, demanding the incidents be investigated. Some of B’Tselem’s applications led to the launching of criminal investigations. In many cases, B’Tselem assisted investigators in making arrangements for them to collect statements from Palestinian victims and eyewitnesses, and by obtaining medical records and other relevant documents. Once the investigations were concluded, B’Tselem followed up with the MAG Corps to get information as to the case outcome. In some cases, B’Tselem appealed the MAG Corps’ decision to close a case, and in a few instances, even petitioned Israel’s High Court of Justice (HCJ) against a decision to close a case, or regarding unreasonable delays in the MAG Corps’ processing of a case.

Since the second intifada began in late 2000, B’Tselem has demanded an investigation in 739 cases in which soldiers killed, injured, beat or used Palestinians as human shields, or damaged Palestinian property.

An analysis of the responses B’Tselem received as to how the military law enforcement system handled these 739 cases shows that in a quarter (182) no investigation was ever launched, in nearly half (343), the investigation was closed with no further action, and only in very rare instances (25), were charges brought against the implicated soldiers. Another thirteen cases were referred for disciplinary action. A total of 132 cases are still at various processing stages, and the MAG Corps was unable to locate 44 others.

How does the military law enforcement system operate?

Over the course of more than 25 years of operation, we have gathered information from hundreds of complaints B’Tselem filed with the military law enforcement system. In addition to the vast amount of information collected with respect to the processing of these cases, over the years B’Tselem has requested and received scores of investigation files from the Military Police Investigations Unit (MPIU). B’Tselem staff members have also met with officials inside the military law enforcement system dozens of times over the years, and corresponded at length with the MAG Corps and other military officials. All this information has helped B’Tselem gain a great deal of experience and given it vast and detailed organizational knowledge regarding how the system works and the considerations that guide it. It is the sum of this knowledge that serves as the basis for pointing to the structural failures that underpin the military law enforcement system’s ability to process a sizeable caseload and yet close the vast majority of cases without any further action:

With MPIU investigations conducted negligently, investigators cannot get at the truth. Almost no effort is made during the investigation to collect external evidence, the system citing as an excuse difficulties of which it has been aware for years and which it has made no attempt to resolve. Instead of evidence, investigations rely almost exclusively on statements collected from soldiers and Palestinians. Nevertheless, the investigation files show that MPIU investigators are hard put to collect these statements, which are often obtained only months after the incident. At witness statement interviews, investigators function more like stenographers taking dictation than staff tasked with uncovering the truth. This is the case even when soldiers’ statements are found to contradict the accounts given by other soldiers or by the complainants.

The investigation file is transferred to the Military Advocacy for Operational Affairs, which is guided by considerations that almost inevitably dictate closing the file with no further action. Many cases are closed for “absence of guilt”, since the MAG Corps simply assumes that the accounts given by soldiers suspected of committing an offense are reliable – usually with no supporting evidence. In addition, the decision of the MAG Corps – which accompanies the investigations from the very start and oversees them – has done nothing to improve or make them more rigorous, instead finding the lax MPIU investigations sufficient for making decisions in cases. Under these circumstances, the fact that many cases are closed for absence of evidence is no surprise. Since no serious effort is made to obtain evidence, it clearly could not support a criminal case.

In many other cases the Military Advocacy for Operational Affairs elects not to launch a criminal investigation at all. Sometimes, it justifies its decision on the grounds of “absence of guilt”. Here, too, it does so on the basis of soldiers’ accounts of events. Sometimes, in cases in which there are Palestinian fatalities, the grounds are that the deaths were in “combat situations”, an exclusion that grants sweeping immunity to soldiers from criminal investigations, far above and beyond that granted by international humanitarian law.

The military law enforcement system also draws legitimacy from the ostensible existence of oversight mechanisms within the civilian system in the form of the Attorney General and the Supreme Court, saying they are meant to oversee the work of the MAG, who wields extensive authorities, as well as the work of the MAG Corps as a whole. However, the Attorney General elects to delegate most of his powers to the MAG and refrains from intervening in his decisions. As for the Supreme Court, it is not meant to serve as an oversight mechanism, and in the few cases in which it was asked to do so, for the most part it preferred not to intervene.

The military law enforcement system is plagued by a host of issues in the basic way it is run: The system is inaccessible to Palestinian complainants, who cannot file complaints with the MPIU directly and must rely on human rights organizations or attorneys to file the complaints on their behalf. The processing of each complaint lasts months, and even years, so that often enough soldiers who are the subject of the complaint are no longer under military jurisdiction. Both the MPIU and the MAG Corps act without transparency, and getting information from them – both about a complaint filed, as well as with general information about their work – requires repeated requests.

This is the system that officials bring as proof – to Israel and the world – of their claim that the military does everything in its power to investigate complaints against soldiers responsible for harming Palestinians and to prosecute the offenders. Top officials boast of the system’s effectiveness and values, discounting any substantive criticism, despite the fact that the system’s operation and the outcomes of its work are well known to senior officials both inside and outside the military.

While changes have been made to the military law enforcement system over the years, they mostly served to reinforce the impression that efforts were being made to get at the truth, and did not resolve the system’s substantive problems.

The deliberations and recommendations of the Turkel Commission ought to be considered against this backdrop. The Commission, which published its conclusions already three years ago (February 2013), recommended a number of improvements to the military law enforcement system. The following were among the Commission’s recommendations: amendments to legislation that would include legislation against war crimes and address the criminal responsibility of commanding officers for the actions of their subordinates; improving MPIU and MAG Corps work methods – including setting shorter schedules for processing time; establishing an MPIU unit designated for handling complaints by Palestinians; greater transparency in the work of the MAG Corps; and a number of measures meant to enhance the MAG’s independence. The implementation of these recommendations, which has already begun, may improve appearances of the current system, but it will not remedy the substantive flaws plaguing the military law enforcement system.

After the Turkel Commission published its recommendations, the government appointed another committee to implement them – the Ciechanover Committee, which submitted its own recommendations in August 2015. In its report, the Ciechanover Committee advocated the implementation of some of the Turkel Commission recommendations verbatim, stated that the implementation of others would require allocation of additional resources, and suggested some minor changes in yet other recommendations. The Ciechanover Committee concluded by stressing that its report is not the final word on the subject, and that some issues still require more work. It recommended the establishment of another agency that would follow up on the implementation of its recommendations.

A semblance of law enforcement

And so, report after report, committee after committee, the discourse in itself creates the illusion of movement toward changing and improving the system. This illusory movement allows officials both inside and outside the system to make statements about the importance of the stated goal of enforcing the law on soldiers, while the substantive failures remain as they were and most cases continue to be closed with no measures taken.

Among other things, the semblance of a functioning justice system allows Israeli officials to deny claims made both in Israel and abroad that Israel does not enforce the law on soldiers who harm Palestinians. In so doing, the state ensures that the military law enforcement system will remain in the sole purview of the military. The military, in turn, will be able to continue its investigation policy in which only the junior ranks are (ostensibly) investigated, while senior commanders and civilian superiors are absolved of accountability for unlawful acts committed under their authority.

These appearances also help grant legitimacy – both in Israel and abroad – to the continuation of the occupation. It makes it easier to reject criticism about the injustices of the occupation, thanks to the military’s outward pretense that even it considers some acts unacceptable, and backs up this claim by saying that it is already investigating these actions. In so doing, not only does the state manages to uphold the perception of a decent, moral law enforcement system, but also maintains the military’s image as an ethical military that takes action against these acts (defined as “aberrations”) and even has an extensive, professional system for doing so.

Effective investigations that get at the truth are critically important. For the victims and their loved ones such a system would mean getting justice, in that action would be taken against those responsible for death and injury.An effective law enforcement system will also serve the public interest by deterring soldiers and officers from committing similar offenses and preventing future harm. This is why establishing legal liability and accountability for human rights violations is the core of the activities of human rights organizations both in Israel and abroad.

And so, for 25 years, with a view to establishing accountability and preventing future harm, we contacted the military law enforcement system and demanded that soldiers suspected of harming Palestinians be investigated. Over the years, the military law enforcement system has developed the expectation that human rights organizations, including B’Tselem, serve as subcontractors for the military investigative system: that they submit the complaints, coordinate collecting statements, obtain documents, and so forth.

Although this is not B’Tselem’s job but the responsibility of the military system, we have elected to perform it for the last 25 years for a variety of reasons. One of the reasons we did so was that we hoped that in this way we were helping bring justice to the Palestinian victims and to establish deterrence that would prevent future similar incidents. If that had been the outcome, this paper would not have been written. In reality, however, B’Tselem’s cooperation with the military investigation and enforcement systems has not achieved justice, instead lending legitimacy to the occupation regime and aiding to whitewash it.

B’Tselem will no longer play a part in the pretense posed by the military law enforcement system and will no longer refer complaints to it. The experience we have gained, on which we base the conclusions presented in this report, has brought us to the realization that there is no longer any point in pursuing justice and defending human rights by working with a system whose real function is measured by its ability to continue to successfully cover up unlawful acts and protect perpetrators.

We will continue to document and report on Israel’s human rights abuses in the occupied territories, but we believe that the task of advancing human rights protection in the occupied territories will not be served by efforts to help shoddy investigations that would, in any case, end up being much watered down by MAG lawyers. The fight for human rights will be better served by denouncing this system and exposing it for what it is.

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