Alleged Investigation: The failure of investigations into offenses committed by Israeli soldiers

8/3/2019 Alleged Investigation: The failure of investigations into offenses committed by Israeli soldiers

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Alleged InvestigationTHE FAILURE OF INVESTIGATIONS INTO OFFENSES

COMMITTED BY IDF SOLDIERS AGAINST PALESTINIANS

August 2011


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ALLEGED INVESTIGATION

THE FAILURE OF INVESTIGATIONS INTO OFFENSES

COMMITTED BY IDF SOLDIERS AGAINST PALESTINIANS

August 2011


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Research and writing: Lior Yavne

Information coordination and research assistance: Roni Pelli, Atty. Emily Schaeer, Atty. Ido Tamari

Editor: Atty. Michael Sard

English translation: Philip Barnea

English editing: Shoshana London Sappir

Cover photo: Ziv Stahl

Design: Yehuda Dery Studio

Yesh Din would like to thank HaMoked The Center or the Deense o the Individual, Rabbis or Human Rights

and Breaking the Silence or their assistance.

Public Council: Shulamit Aloni, Michael Ben Yair, Shlomo Gazit, Ruth Heshin, Yehudit Karp, Paul Kedar, Ilan Paz,

Yair Rotlevy, Talia Sasson, Michal Smoira-Cohen

Yesh Din Volunteers: Rachel Aek, Dahlia Amit, Hanna Aviram, Yehudit Elkana, Maya Bailey, Hanna Barag, Ruth

Ben Shaul, Sigal Bergman, Rochale Chayut, Eran Ereli, Tami Gross, Avner Harari, Dina Hecht, Niva Inbar, Tamari

Kadman, Daniel Kahn, Edna Kaldor, Ruthie Kedar, Joel Klemes, Lior Livne, Judy Lotz, Aryeh Magal, Sarah Marliss,

Idan Oren, Rina Plesser, Nava Polak, Dr. Nura Resh, Yael Rokni, Maya Rothschild, Idit Schlesinger, Dr. Hadas Shintel,

Ilana Meki Shapira, Dr. Tzvia Shapira, Ayala Sussman

Staff: Firas Alami, Muhannad Anati, Yudit Avidor, Azmi Bdeir, Caroline Beck, Haim Erlich, Adar Grayevski, Moneer

Kadus, Atty. Avisar Lev, Noa Levy, Alex Liport, Roni Pelli, Atty. Carmel Pomerantz, Ruth Ristik, Atty. Emily Schaeer,

Atty. Michael Sard, Atty. Muhammad Shuqier, Ziv Stahl, Atty. Ido Tamari, Lior Yavne, Atty. Shlomy Zachary, Dana

Zimmerman

This publication has been produced with the assistance o the European Union. The contents o this

publication are the sole responsibility o Yesh Din and can in no way be taken to reect the views o

the European Union.

Yesh Din Volunteers for Human Rights | 11 Rothschild Blvd | Tel Aviv, 66881

Teleax: 03-516-8563 | [email protected] | www.yesh-din.org

All rights reserved to Yesh Din Volunteers for Human Rights, Tel Aviv, 2011


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ALLEGEDINVESTIGATION

CONTENTS

ACRONYMS

PRINCIPAL FINDINGS AND RECOMMENDATIONS 8

INTRODUCTION 14

ABOUT THE PROJECT AND THE METHODOLOGY OF THIS REPORT 16

CHAPTER 1: THE MILITARY LAW ENFORCEMENT SYSTEM AND THE

INVESTIGATION OF OFFENSES IN THE OPT 19

THE MILITARY POLICE CRIMINAL INVESTIGATIONS DIVISION 19

THE MILITARY ADVOCATE FOR OPERATIONAL AFFAIRS UNIT 21

STAGES IN THE INVESTIGATION OF OFFENSES IN THE OPT 23

NOTICES, INVESTIGATIONS AND INDICTMENTS: FIGURES 25

Opening Investigations And Submitting Indictments, 2000-2010 26

Lack Of Data Regarding Grounds For Closure 28

Notices 28

Convictions, Acquittals, And Cancellation Of Indictments 30

Conviction Of Soldiers In Connection With Civilian Deaths 30

CHAPTER 2: OPERATIONAL DEBRIEFING HINDERS CRIMINAL

INVESTIGATIONS 32

THE PLACE OF THE OPERATIONAL DEBRIEFING IN THE INQUIRY PROCESS 32

THE OPERATIONAL DEBRIEFING IS A STUDY TOOL 34


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INQUIRY PRIOR TO INVESTIGATION: A PROLONGED PROCESS THAT

IMPAIRS THE EFFECTIVENESS OF THE INVESTIGATION 36

ADDITIONAL EXAMPLES

Yesh Din File 1515/08: The Inquiry Process Dragged On For More

Than Three Years Without Collecting A Single Testimony 39

Yesh Din File 1588/08: Yesh Din Is Asked To Present Evidence As

A Condition For Considering An Investigation 40

Yesh Din File 1702/09: The Differences Between The Versions Of Palestinians And Soldiers Requires Investigation 42

CHAPTER 3: THERE ARE NO MPCID BASES IN THE WEST BANK 45

THE UNIT THAT INVESTIGATES EVENTS IN THE OPT HAS NO BASES THERE 45

DIFFICULTIES IN LODGING COMPLAINTS AT DCOS 46

LOSS OF COMPLAINTS DURING TRANSFER FROM ISRAEL POLICE TO

MILITARY POLICE CRIMINAL INVESTIGATIONS DIVISION 48

USE OF DCOS TO COLLECT STATEMENTS 52

FAILURE TO APPEAR TO COLLECT STATEMENTS 53

LACK OF ACCESS HINDERS INVESTIGATIONS 60

CHAPTER 4: KEY FLAWS IN CRIMINAL INVESTIGATIONS 61

DELAYS AND HOLDUPS IN THE START OF AN INVESTIGATION AND

ITS PROGRESS 61

INTERPRETERS 67


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IDENTIFICATION LINEUPS, CONFRONTATIONS AND POLYGRAPH 74

FAILURE TO QUESTION KEY WITNESSES 77

INVESTIGATORS DO NOT VISIT THE SCENE 79

RELIANCE ON THE UNITS TO IDENTIFY IMPLICATED SOLDIERS 80

REFRAINING FROM INVESTIGATING SENIOR OFFICERS AND EXAMINING

THE LEGALITY OF ORDERS 81Yesh Din Files 1366/08 And 1626/08: Collective Punishment At Al-Arrub 83

Northern Court Martial File 497/03: A Tank Commander Stood Trial But The

Responsibility Of Superior Ranks Was Not Sufficiently Investigated 84

DELAYS IN MAGC DECISIONS AFTER THE CONCLUSION OF INVESTIGATIONS 86

Data From Yesh Dins Monitoring 86

Yesh Din File 1581/08: More Than Two Years After The Soldier Was Released From

Detention The Magc Still Hadnt Reached A Decision Regarding The Outcome

Of The Investigation 87

Yesh Din File 1366/07: Policeman-Witness Not Questioned; The Suspect Doesnt

Remember; The Case Was Closed 89

Yesh Din File 1853/09: The Investigation File Is Passed From Hand To Hand Until

Its Closure 91

Yesh Din File 1631/08: Investigation Material Passed From Mpcid To Piu To

Israel Police And Then Disappears 93

CHAPTER 5: REFUSAL OF VICTIMS AND WITNESSES TO FILE

COMPLAINTS AND TESTIFY 96

LACK OF TRUST IN LAW ENFORCEMENT AGENCIES 97

COMPLAINANTS RECANT ON THEIR COMPLAINTS FOR FEAR OF BEING

HARMED 98


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CONCLUSION AND RECOMMENDATIONS 101

RECOMMENDATIONS 103

APPENDIX: ADDITIONAL DATA 1

DELIVERERS OF NOTICES THAT LED TO THE OPENING OF MPCID

INVESTIGATIONS, 2006- 2009 105

INVESTIGATION FILES BY TYPE OF OFFENSE, 2003- 2009 106

INVESTIGATION FILES OPENED BETWEEN 2007- 2010 BASED ON THE

LOCATION OF THE OFFENSE 106

INCIDENCE OF MPCID INVESTIGATIONS INTO OFFENSES AGAINST

PALESTINIANS IN THE OPT OUT OF ALL MPCID INVESTIGATIONS 107

TABLES

Table 1: Status of complaints and investigations monitored byYesh Din, April 30, 2011 17

Table 2: The opening of investigations by the MPCID and resulting indictments,

2000-2010 27

Table 3: The ratio between the number of notices given to the MPCID, the number

of investigation files opened and subsequent indictments served, 2000-2010 29

Table 4: Notices received by the MPCID categorized by the person giving

the notice, 2008-2009 46


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ACRONYMS

DCO - District Coordination Ofce

HCJ - High Court o Justice

IDF - Israel Deense Forces

OPT - Occupied Palestinian Territories

MPCID - Military Police Criminal Investigations UnitMAG - Military Advocate General

MAGC - Military Advocate Generals Corps

MAOA - Military Advocate or Operational Aairs


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8

PRINCIPAL FINDINGS AND

RECOMMENDATIONS

Only three and hal percent o complaints received by the Military Police Criminal

Investigations Unit (MPCID) and the Military Advocate Generals Corps (MAGC) o criminal

oenses allegedly committed by soldiers against Palestinian civilians and their property in

the West Bank ultimately lead to indictments. In other words, a complaint made to the

military law enorcement bodies o oenses by soldier against Palestinians havea 96.5% chance o being dismissed without an indictment being fled against the

suspected soldiers. This report attempts to examine the reasons why so ew o the cases

examined and investigated by the IDF result in indictments.

The report is based upon Yesh Dins monitoring o the military law enorcement agencies

processing o 192 separate complaints made on behal o Palestinian complainants, and

on the study o the contents o 67 investigation fles opened by the MPCID and closed

by the MAGC without indictments being fled against deendants. The reports fndings

are also based on inormation and fgures the IDF provided Yesh Den in response to the

organizations requests over the past years.

There is no way o knowing how widespread the phenomenon o oenses by soldiers

against Palestinians is: how many times over the past years soldiers looted property rom

homes they entered or the purpose o searches, shot civilians in defance o the rules

o engagement and with no operational justifcation, beat and humiliated passersby at

checkpoints and on roadsides. It is reasonable to assume that in many o these incidents

the victims o the oense rerained in advance rom complaining to the Israeli Army so that it

could investigate the oenders and place them on trial. Nonetheless, rom the beginning o

the second intiada to the end o 2010, the MPCID received 3150 complaints (also known

as notices) o criminal oenses allegedly committed by soldiers against Palestinians in

the territories. The complaints cover a wide spectrum o oenses including severe harm

to Palestinians and their property: acts o killing and wounding, looting, thet and other

damage to property, violence, abuse o passersby and detainees and other similar oenses.

In 38% o the notices made concerning suspected criminal acts by soldiers against

Palestinians, no criminal investigation was started ollowing the notices. The reasons or this

could be the policy o the MAGC not to investigate oenses committed under operational

circumstances, the decision by parties within the MPCID that that the complaint did not


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indicate the commission o an oense or even, in some instances, the loss o data gathered

in an investigation. The reports fndings indicate that o the 3150 notices made to theMPCID between the years 2000-2010, 1949 resulted in investigations but only 112 o the

investigation fles 3.5% o the notices have resulted, so ar, in indictments against

suspects.

In the last decade, the MAGC instituted a policy known as the investigation policy.

According to this policy, investigations into certain oenses (such as looting or abuse)

are started immediately upon receipt o a complaint. However, the opening o a criminal

investigation into alleged oenses committed during operational actions is conditional uponholding a preliminary inquiry that is generally based on an operational debriefng.

The operational debriefng, a tool used by commanders in order to draw operational

conclusions and learn rom operational ailures and mishaps, is not intended to gather

evidence or to determine individual criminal responsibility. For the most part, the operational

debriefng is held by parties within the chain o command o the unit involved in the

alleged oense; those carrying out the debriefng are not investigators and they lack both

the appropriate training and the proper tools to unearth evidence. Indeed, fgures recentlyprovided by the MAG show that in 30 o the 267 debriefngs reviewed by the Military

Advocate or Operational Aairs (MAOA) (since the end o March 2007) a decision was

made to start a criminal investigation. In other words, in 89% o the cases in which an

operational debriefng was held ollowing the receipt o a complaint, it was decided not to

open a criminal investigation.

Additionally, the very conducting o an operational debriefng may undermine an

eective investigation: the decision to open a criminal investigation is put on hold untilthe completion o the inquiry process. This process, as shown by fgures appearing in

the report, takes, in many cases, a very long time, which harms the eectiveness o an

MPCID investigation, i and when it opens, because the time that goes by enables evidence

to be destroyed or concealed and impairs witnesses memories. Conducting operational

debriefngs prior to a criminal investigation also harms the prospective investigation as there

is a very real possibility o the soldiers involved in the incident coordinating their versions o

the events, with questioning by their commanding ofcers being used as a dress rehearsal

or the criminal investigation.


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The MPCID has no base within the territories and not even a permanent acility

that complainants can approach themselves to give their complaints to MPCID

investigators, so that the investigators can gather all the required inormation and decide,

or themselves, the credibility o the complaint. I such a base existed, then the MPCID and

the MAGC would be able to reach prompt decisions regarding the necessary investigatory

procedures. Failing this, military law enorcement units rely on various intermediaries primarily

ofcers rom the Israel Police and human rights organizations in the territories in order to

obtain, through them, complaints regarding oenses by IDF soldiers against Palestinians.

They use these intermediaries in order to acilitate the oten complex coordination required

to arrange the time and place or collecting testimonies. In many instances, dierentproblems and mishaps that arise on the way prevent the giving o testimonies and oten

cause complainants to withdraw their complaints.

Chapter 4 o the report, based on the examination o dozens o investigation fles, reviews

the main ailures and aws in MPCID investigations that make a signifcant contribution to

the ailure rate in the investigation o oenses committed by IDF soldiers against Palestinians

and their property. Among other things, investigation logs in MPCID fles indicate signifcant

delays in conducting investigation procedures ollowing the receipt o the original notice(complaint). In many instances, the very opening o an investigation is delayed or many

weeks until the appointment o an investigator to the case.

As the vast majority o MPCID investigators neither speak nor read Arabic, they rely on

the services o translators who are not members o the MPCID. This problem oten

causes delays in collecting complainants testimonies and in some cases even impairs the

possibility o obtaining a ull version o the events rom complainant and witnesses.

MPCID investigators hardly ever make use o conventional investigation tools:

polygraph tests o subjects were held in only a ew o the fles in which suspects were

located and whose contents were examined by Yesh Din. However, in many cases suspects

who agreed to polygraph examinations were never sent to take them. Conrontations

between Palestinian eyewitnesses and suspects are never held. Live identifcation

lineups those in which the eyewitness is allowed to identiy by sight suspects presented

beore him are not held either. Instead, in certain cases MPCID investigators make use o

photographic lineups, in which the identifcation o suspects is considered less eective

than in live lineups and, as a result, photographic lineups are o lesser evidentiary value.


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In many instances, central witnesses are not questioned: both Palestinians and military

personnel. Many investigation fles include only the complainants testimony, and lack

the testimony o Palestinian eyewitnesses. In some cases, it appears that investigators

made no eort whatsoever to summon additional Palestinian eyewitnesses who could

add details to the complainants testimony and thereby either acilitate the location o

suspects or strengthen the evidence against them. At the same time, in many cases

neither soldiers nor their commanding ofcers, whose evidence it is reasonable to

assume could shed light on the incident, were interrogated.

As a rule, MPCID investigations o oenses committed against Palestinians are conductedrom the investigators ofces and the investigators rarely go out into the feld. This ailure

applies both to the scene o the incident the delay in the opening o investigations into

complaints in itsel usually hinders the collection o relevant fndings rom the scene and

also to the bases o the units involved to perorm searches, locate documents etc. Because

the investigators rarely go themselves to the bases o the units suspected o involvement

in criminal oenses and ail to locate and impound documents that could assist in the

identifcation o the soldiers involved, they rely, in many cases, on the military units

themselves to locate and identiy the soldiers involved in the incident. This systematicreliance on the cooperation o elements within the units involved raises suspicions that those

same elements may, on occasion, rustrate the assistance that the investigators require.

As a rule, in the investigation fles examined by Yesh Din, MPCID investigators rerained

rom questioning senior ofcers under warning, both feld ofcers and sta ofcers. Even

in those fles where the investigation raised suspicions as to the existence o illegal policies

or procedures, investigators ailed to widen their investigation in order to determine the

responsibility o senior ofcers.

Even ollowing the conclusion o a criminal investigation and the transer o the investigation

material to the MAGC or a decision, the fnal decision regarding the ate o an investigation

fle is delayed or many months. In the fles monitored by Yesh Din, on average almost 14

months passed rom the initial transer o the investigation fle to the MAGC to the decision

by the MAGC whether to close the fle or to press charges. Among the fles monitored by

Yesh Din and or which a decision by the MAGC has yet to be received, there are many in

which more than two years have passed with no decision being made regarding their ate.

One o the most difcult obstacles that prevent law enorcement upon IDF soldiers suspected

o criminal oenses against Palestinians in the Occupied Palestinian Territories (OPT) is


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the reluctance o the victims o the oenses and eyewitnesses to testiy beore the

investigatory bodies. This results rom victims ears that they may come to harm, eitherrom the soldiers who discover they fled a complaint or by the denial o various permits.

The victims o oenses also doubt the sincerity o the intention o Israeli law enorcement

agencies to investigate complaints against Israeli military personnel.

This combination o actors, the main points o which are reviewed in this report, results in the

negligible number o cases in which notices o alleged oenses led to criminal investigations

which, in turn, resulted in indictments against deendants: only 3.5%. The chances that a

criminal oense committed by an IDF soldier against a Palestinian will successullynavigate the obstacle course o lodging a complaint, an MPCID investigation and a

decision by the MAGC beore fnally resulting in an indictment, are almost nil. The

barriers on the road to law enorcement, the major ones o which are detailed in this report,

are not works o nature but rather the result o conscious decisions, o the non-allocation o

resources and the lack o adequate oversight o the investigators work.

It is the position o Yesh Din that, under these circumstances, the State o Israel is not

meeting its obligation to protect the civilian population living in the area it occupiedthrough the proper and eective investigation o suspicions o criminal oenses

committed by soldiers.

RECOMMENDATIONS

The MAGC must stop making the opening o criminal investigations conditional on1.

a prior inquiry procedure and the MPCID must launch criminal investigations into all

complaints that, prima acie, indicate suspicion o a criminal oense. In those instanceswhere it becomes apparent that the incident reported by the complainant occurred

under circumstances that do not involve criminal intent the investigation fle should

be closed, even at its early stages. However, the act that an incident occurred within

the ramework o an operational activity must not, in itsel, provide immunity rom

investigation.

The MPCID must maintain a permanent presence at least in the north and the south2.

o the West Bank to make it easier or those wishing to lodge complaints to do so and

be received by MPCID investigators who will take their complaints and testimonies

directly.


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The MAGC must train the MPCID investigators who investigate oenses against3.

Palestinians in the laws o armed conict and the obligations arising rom them. Aspecial emphasis should be placed on the investigation o crimes concerning collective

punishment and other similar oenses that arise rom the illegitimate policies o feld

commanders.

The MPCID must make a serious and concerted eort to ensure that a large number o its4.

investigators, at least those who come into direct contact with Palestinian complainants

and eyewitnesses, speak Arabic and are capable o working in that language.

The MAGC must make eorts to allay Palestinians ears that they will be harmed i they5.

lodge complaints against members o the security orces. Among other measures, in

certain cases the MAGC should consider granting the victims o crimes immunity rom

prosecution i they were involved in light oenses and take frm action in cases when

the MPCID or MAGC learn o the harassment o complainants.

The MAGC must increase the size o its establishment and allocate sufcient, trained6.

personnel or the needs o the MAOA unit.


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INTRODUCTION

Only 3.5% o the complaints received by the Military Police Criminal Investigations Division

(MPCID) and the Military Advocate Generals Corps (MAGC) regarding alleged criminal

oenses committed by soldiers against Palestinian civilians and their property in the West

Bank result in indictments. In other words, complaints made to military law enorcement

authorities regarding oenses committed by soldiers against Palestinians have a 96.5%

chance o being closed without an indictment being fled against the suspected soldiers.

This fnding emerged rom Yesh Dins continuous monitoring over the past ew years o theIDFs law enorcement apparatus that is supposed to protect the civilian population in the

Occupied Palestinian Territories (OPT) rom criminal oenses carried out by its soldiers.

This report attempts to identiy the reasons that such a small number o investigations and

examinations carried out by the IDF yield criminal indictments.

The IDF maintains an apparatus to enorce the law on its soldiers both by virtue o the

provisions o Israeli law that apply to it and by virtue o its obligations as an occupying orce

in a territory subject to belligerent occupation set orth in international law. International

humanitarian law (the laws o war) and the laws o occupation (which are a branch o

international humanitarian law) require the occupying power to respect the lives, dignity and

property o residents o the occupied territory. Along with the negative responsibility to

rerain rom harming the lives, dignity and property o the civilian population in an occupied

territory, international law imposes a positive obligation on the occupying power to

take active measures to ensure the protection o that population rom injury that was not

instigated by the occupying orce. A central tool in the realization o this positive duty is

the investigation o criminal oenses committed by soldiers against the civilian population

living in the occupied territory and its property and the prosecution o those responsible orthem.1

The sources o the duty set orth in international law to investigate oenses by IDF soldiers in the OPT and the proessional1.

standards resulting rom these sources were discussed in detail in a number o documents recently submitted to the Public

Commission to Examine the Maritime Incident o May 31, 2010 (henceorth: the Turkel Commission). The commissions

letter o appointment authorizes it, among other things, to examine whether the examination and investigation apparatus

relating to complaints and allegations raised regarding the inringement o the Law o Armed Conict, in eect in Israel in

general [] are compatible with the obligations o the State o Israel with regard to International Law (Section 5 o Israeligovernment decision number 1796 rom June 14, 2010). Among the documents presented to the Turkel Commission that

dealt at length with the obligation to investigate and the standards resulting rom such obligation: the Military Advocate

General (MAG),A Second Position Paper on Behal o the Military Advocate Generals Corps, (MAG Headquarters, 19


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Military law enorcement authorities stress that conducting criminal investigations in the

occupied territories is no simple task: As opposed to other investigations, conducting aninvestigation in the [OPT] is to a large extent like scoring a goal rom your penalty box,

according to the commander o the MPCID and the Chie Military Police Ofcer.2 The ormer

MAG, Brigadier General Menachem Finkelstein, explained:

[] There are inherent diculties: it is dicult to recreate the scene, it is not always

possible to locate witnesses, and in many cases we lack witnesses rom the other

side. We can not always obtain medical documents which we could do during the

rst intiada, when we controlled the area and we had access to all the data sosometimes people avoid justice. We dont ignore these diculties; we are trying to deal

with them.3

In the past decade, according to fgures produced by Yesh Din, only 6% o investigations

opened by the MPCID regarding alleged criminal oenses committed by IDF soldiers

against Palestinians in the territories produced indictments. The MPCID and the MAGC

do not collect data regarding the reasons or the closure o the 94% o investigation fles

that did not result in indictments. This ailure denies the public access to fgures regarding

the number o investigations closed due to the suspicions being reuted as opposed to the

number o investigations closed due to the ailure o the investigators to locate suspects

in committing the oenses or to locate sufcient to indict the oenders. This ailure also

prevents the possibility o identiying and repairing systemic ailures in the law enorcement

systems.

December 2010); Yesh Din, The duty to investigate: Comparing examination and investigation procedures relating

to complaints raised regarding inringements o the Law o Armed Confict to the obligations o the State o Israel

according to international law (position paper, March 23, 2011); The Association or Civil Rights in Israel,Does the

Procedure in Force or the Investigation o Inringements o the Law o Armed Confict Meet the Obligations o the

State o Israel? (Position Paper, 28 March, 2011) [Hebrew]. The documents are available on the web sites o the various

organizations.

Quoted by Amir Rappaport, The MPCID does not know its job.2. Maariv, January 1, 2005.

Protocol number 157, meeting o the Knesset Constitution, Law and Justice Committee, February 3, 2004.3.


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ABOUT THE PROJECT AND THE METHODOLOGY

OF THIS REPORT

As part o a multi-year project conducted by Yesh Din to reinorce law enorcement

procedures upon security personnel who commit oenses against Palestinians and their

property, the organization represents the Palestinian victims o such oenses, aids the law

enorcement authorities and monitors investigation and prosecution procedures relating to

the complaints lodged by the victims o the oenses.

Yesh Din volunteers, accompanied by the organizations feld researchers, collect testimonyrom Palestinians who were victims o criminal oenses allegedly committed by members o

the security orces. As much as possible, Yesh Dins volunteers collect documents that could

assist in the investigation. Victims o oenses who wish to do so, give the organizations legal

advisor power o attorney to represent them in monitoring the progress o the investigation

into their complaint. Due to the lack o an MPCID reception desk in the territories, Yesh Din

assists many victims o oenses in making their complaints either by telephone or in writing.

Based on the power o attorney given the organization, Yesh Din monitors the progress o

MPCID investigation procedures and the MAGCs decision-making process.

When necessary, Yesh Din oers to help the law enorcement authorities arrange the

collection o testimonies rom complainants and eyewitnesses. All dealings with law

enorcement authorities are documented by the organization and have been used in the

compilation o this report. The report is based on Yesh Dins monitoring o the MPCID and

MAGCs processing o192 discrete complaints that were made against IDF soldiers in

which Yesh Din represents the complainants beore military law enorcement authorities.

The ollowing table presents the status o the complaints and investigations Yesh Din has

been monitoring:


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Responsible agency Status Number o

incidents

Closed Indictment served 4

File closed but soldiers involved were

subjected to disciplinary action

2

File closed ollowing criminalinvestigation

48

File closed without criminal investigation 15

File shelved by MPCID 11

Handled by MAGC "Inquiry" procedure 11

Under review ollowing investigation 56

Handled by MPCID Under investigation 8

Under investigation completion 9

Complaints

cancelled/lost

The complainant requested that the

complaint be cancelled

23

The complaint/investigation materials

were lost

5

Total 192

Table 1: Status o complaints and investigations monitored by Yesh Din, April

30, 2011

Alongside Yesh Dins documentation o its contacts with the law enorcement agencies,

the organization also examines the actual investigations by reviewing the investigation

fles themselves. As part o the research or this report, Yesh Din examined 67 MPCID

investigation fles rom recent years. In 44 o the investigation fles Yesh Din represented

the complainants and, ollowing the decision to close the investigation, a copy o the fle was

made available to Yesh Din. An additional 23 fles were provided to Yesh Din or examination

by HaMoked - Center or the Deense o the Individual, which represented the complainants

in the cases, and one additional fle was provided by Rabbis or Human Rights.

The examination o the investigation fles revealed signifcant aults and ailures in investigationprocedures and these were documented in a data base prepared especially or this purpose.

We should point out that the research carried out by Yesh Din does not take the place o


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the reasoning o the military advocate who decided to close the investigation fle and that

this report does not deal with the question o whether one military advocate or anotherwas right or wrong when they decided to close a specifc investigation fle. The aim o

this research is to identiy repeated ailures that signifcantly harm the chance o MPCID

investigations producing evidence against suspects and leading to indictments against the

perpetrators o crimes.

In addition to monitoring investigations and examining investigation fles, Yesh Din was

aided by inormation provided by the IDF spokesperson in response to a series o questions.

The requested inormation related to procedures, personnel in the units responsible orlaw enorcement in the army and other fgures. The inormation we received is included in

the reports various chapters. The IDF spokesperson has also assisted Yesh Din or some

years in obtaining copies o judgments handed down by courts martial concerning soldiers

accused o harming Palestinians and their property, and also copies o the indictments

served against them. This assistance enables Yesh Din to publish reliable data regarding

the number o investigation fles that are ultimately translated into indictments. Yesh Din has

been publishing such data since 2008.

Chapter 1 o this report contains current data rom Yesh Dins research regarding the number

o complaints that became investigations and other data on this matter. Chapter 2 deals

with the use o operational debriefngs as part o the criminal procedure, and how the use o

operational debriefngs undermines the chance o conducting a proper criminal investigation.

Chapter 3 deals with the difculties resulting rom the act that the MPCID does not have an

investigation base in the OPT. Chapter 4 reviews key ailures Yesh Din identifed in MPCID

procedures, based on an analysis o the investigation fles it examined and inormation it

has about the investigations the organization has been monitoring over the past years.

Chapter 5 discusses an additional aspect o the difculty to conduct investigations in theterritories: the unwillingness o many Palestinians to lodge complaints regarding oenses

that they claim security personnel committed against them, both because o ear they will

be harmed and because o their lack o aith in Israels law enorcement agencies. The fnal

chapter summarizes the reports conclusions and Yesh Dins recommendations resulting

rom them.


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CHAPTER 1

THE MILITARY LAW ENFORCEMENT SYSTEM AND THE

INVESTIGATION OF OFFENSES IN THE OPT

I am aware o the act that the percentage is not high, somewhere in the region o 6%

to 9%, that result in ling indictments or disciplinary action.

(Chie Military Police Ocer in testimony to the Turkel Commission).4

The military law enorcement system consists o three main bodies: the Military Police,

the Military Advocate Generals Corps (MAGC) and the Courts Martial Unit. Oenses are

investigated by military police who are authorized by the Military Advocate General (MAG) to

act as criminal investigators and who act within the ramework o the Military Police Criminal

Investigations Division (MPCID). In some cases, military prosecutors acting on behal o

the MAGC accompany investigations and they are the ones who decide on the uture o

the investigation fle once the investigation is completed: they have the authority to order

the case closed, to order an indictment or to return the fle or additional investigation o

matters they think where not investigated ully. In the report Exceptions: Prosecution o

IDF soldiers during and ater the second intiada (henceorth: Exceptions) Yesh Din

reviewed the results o indictments served in courts martial concerning oenses allegedly

committed against Palestinians in the OPT rom the start o the second intiada to 2007. The

report presented fgures on the numbers o complaints (notices) and the investigations

that led to indictments. This chapter includes current fgures and background inormation

about the frst two links in the chain o military law enorcement upon IDF soldiers in the OPT:

the MPCID and the Military Advocate or Operational Aairs (MAOA) Unit.

THE MILITARY POLICE CRIMINAL INVESTIGATIONS DIVISION

The Military Police Criminal Investigations Division (MPCID) is a military unit commanded

by a Colonel and is part o the IDFs Military Police. The MPCIDs commanding ofcer is

subordinate to the Chie Military Police Ofcer. Some 500 soldiers and ofcers serve in the

MPCID, 400 o which serve in various investigation and intelligence capacities.5 Alongside

Minutes o the testimony o Brig.-Gen. Meir Ohana, Chie Military Police Ofcer, to the Turkel Commission, April 14, 2011,4.

p. 9.

Ibid., p. 3.5.


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investigators doing their regular army service, the MPCID also uses investigators on reserve

duty, unit veterans who do their reserve service there.6

Most o the MPCIDs activity is within three sub-units, divided by geographical parameters:

MPCID North, MPCID Center and MPCID South. Each unit is commanded by a Lieut.-Col.,

and each consists o several bases (MPCID North and South have three bases each and

MPCID Center has our bases) commanded by junior ofcers ranking between Lieutenant

and Major.7 These investigation units deal with oenses related to drugs, property, unlawul

use o weapons, violence and oenses against Palestinians in the OPT.

Additionally, each o the regional MPCID units has a central investigations unit that deals

with the more complex and sensitive cases as well as a regional base or the investigation o

trafc accidents. Alongside the regional units, MPCID also includes two national units: The

Central Unit or Special Investigations that deals with especially sensitive cases, and has

surveillance capacity and the power to use undercover agents, and the Fraud Investigation

Unit.8

Except or a single base near Jerusalem, the MPCID has no investigation base in the West

Bank and had none in the Gaza Strip in the years preceding the withdrawal o Israeli orces

rom the Strip in 2005 (the disengagement). One investigation base was expanded in

February 2005 in order to deal with Palestinian complaints the Sharon and Samaria

MPCID base, which is also located outside o the West Bank, on an IDF base near Netanya

(the Beit Lid Base). However, investigations regarding oenses committed in the OPT are

also conducted by designated teams on other bases, by geographical location: the MPCID

bases Sharon and Samaria and Jerusalem belong to MPCID Center and the Beersheba

and Urim bases are part o MPCID South.9 The division o labor between the bases is also

The IDF spokesperson declined to provide Yesh Din with fgures regarding the number o investigators assigned to6.

investigations in the OPT (whether on regular or reserve duty) and the number o reserve days allocated or that purpose.

IDF spokespersons response to a query by Yesh Din, October 28, 2007.

Minutes o the testimony o Brig.-Gen. Meir Ohana, Chie Military Police Ofcer, to the Turkel Commission, April 14, 2011,7.

p. 3-5. A description o the structure o the MPCID can also be ound on the Military Police web site: http://www.aka.id.il/

chamatz/klali/deault.asp?catId=38988&docId=39596 (henceorth: Military Police website). Viewed on March 3, 2011.

Letter rom the MPCID Commanding Ofcer to MAG,8. The Turkel Commission Report the Investigations andExamination Apparatus. 29th March 2011. Available on the commissions web site: http://www.turkel-committee.gov.il/

fles/wordocs/9482kamtzar.PDF [Hebrew].

IDF spokespersons response to a query made by Yesh Din, October 28, 2007.9.


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decided according to geographic location with each base being responsible or investigations

in the areas covered by specifc regional brigades. The number o investigations the MPCIDconducts in the OPT is not large in relation to the units total activities: by multi-year average,

in the years 2000-2010 the number o MPCID investigations o oenses committed by

soldiers against Palestinian was only 6% o the units total number o investigations.10

As a rule, MPCID investigators are conscripted soldiers who have been drated to serve in

the Military Police. Male investigators are chosen rom among the conscripts drated into the

Military Police during basic training, whereas emale investigators are selected prior to their

conscription into the IDF. MPCID investigators go through a short basic training ollowed bya ten-week criminal investigators course at the Military Police College.11

The training o MPCID investigators provides them with basic investigation skills questioning,

collecting evidence and so on and prepares them to conduct criminal investigations on

the range o investigations the MPCID handles. Upon completion o the training, they

are authorized by the MAG to act as criminal investigators. During their military service,

investigators take an advanced investigation course that lasts or one month. However,

the MPCID provides no additional ormal, specialized training or investigators who handle

complaints by Palestinians regarding oenses against them. The supplementary training o

investigators in this area is provided by the coaching and mentoring o veteran investigators

on the bases they are assigned to and in periodic training days.12

THE MILITARY ADVOCATE FOR OPERATIONAL AFFAIRS UNIT

The purpose o the MAGC is to assist the IDF in ulflling its missions according to law and

to establish within the IDF the rule o law and the importance o a air trial.13 The MAGC

consists o three divisions: the law enorcement division including the Military Prosecution

and Military Advocacy; the Legal Advisory division that includes the Advisory and Legislation

departments, the Legal Advisor or Judea and Samaria (West Bank) and the International

See ull data in the appendix.10.

Military Police website. Viewed March 3, 2011.11.

IDF spokespersons response to a query made by Yesh Din, October 28, 2007; Minutes o the testimony o Brig.-Gen. Meir12.

Ohana, Chie Military Police Ofcer, to the Turkel Commission, April 14, 2011, p. 23.

MAG, query rom the Committee on the investigation and examination apparatuses in Israel concerning complaints13.

and allegations regarding violations o the Law o Armed Conict. Letter rom the MAG to the secretary o the Turkel

Commission, March 29, 2011.


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Law Department; and the Training and Research Division, including the School o Military

Law.14

The Chie Military Prosecutor is responsible or the Military Prosecution and has the rank o

Colonel. His duties include the supervision o the MPCID and providing it with proessional

direction, and ordering the opening o investigations and completion o investigations.15

Towards the end o 2007, a section or Operational Aairs was established within the Military

Prosecution system with the aim o combining and concentrating matters relating to

operational aairs under one roo while creating the added value o specialization, uniormity,

efciency, improvement and betterment o the treatment o this area.16

The Operational Area the MAOA unit was ounded to deal with includes, among other

things, handling investigations o IDF training accidents, providing investigation summaries

to the amilies o soldiers killed in action, and handling oenses by IDF soldiers against

Palestinians in the OPT. Until the unit was established, ollowing a comprehensive

restructuring o the MAGC, the various regional military advocates were responsible or

decisions about investigations o oenses by soldiers against Palestinians in the OPT.

The MAOA units workload is huge. In 2008 alone, the unit received in all the aoresaid

areas 441 criminal investigation fles rom the MPCID, over 400 complaints and some 20

operational investigations.17 In 2009 the unit handled 939 operational complaints that were

reviewed, 333 o which became MPCID fles.18 The MAOA, which has only a small number

o subordinate lawyers, is responsible or handling all o those cases.

This division is the result o a restructuring o the MAGC in 2007. Among other things, the change was aimed at separating14.

the role o the legal advisor rom responsibility or prosecution, previously the dual responsibility o the military advocates

o the various judiciary districts (at regional command bases and the various military arms). Despite the said structural

separation, the MAG still wears two hats: the Legal Advisor and the Chie Military Prosecutor. For Yesh Dins criticism

o this situation, see: The Duty to Investigate: Compatibility o Israels Duties under International Law with the

Examination and Investigation o Complaints regarding Violations o the Law o Armed Confict Law o Armed Confict

(Position Paper 23 March 2011) (henceorth:the Duty to investigate), pp. 36-37 [Hebrew].

MAG, query rom the15. Committee on the investigation and examination apparatuses in Israel concerning complaints

and allegations regarding violations o the Law o Armed Confict. Letter rom the MAG to the secretary o the Turkel

Commission. March 29, 2011.

MAGC,16. Operations Report or 2008, p. 14 [Hebrew].

Ibid., ibid.17.

MAGC,18. Operations Report or 2009, p. 21 [Hebrew].


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Prior to issuing an indictment, the MAOA units powers concerning oenses by soldiers and

ofcers against Palestinian civilians and their property in the OPT concentrate on the twoollowing critical stages o the law enorcement process:

Deciding whether to open a criminal investigation ollowing complaints o oensesa.

allegedly committed by soldiers and ofcers, concerning incidents that occurred during

operational activity (in other cases the investigation is supposed to be opened by the

MPCID without the need or authorization o the MAOA). According to the procedures

developed by the MAG, he makes the decision whether to open investigations in such

cases, based on the recommendations o the MAOA unit, only ater an operationaldebriefng, usually by parties in the chain o command o the units involved in the case

and ater the fndings o the aoresaid debriefng are passed on to the MAOA unit.19

Deciding whether or not to take legal action ollowing the conclusion o an MPCIDb.

investigation. The MAOA is empowered to authorize the closing o an investigation fle

or the return o the fle to the MPCID or urther investigation, as well as recommending

that the MAG press charges against suspects in the cases it handles.

STAGES IN THE INVESTIGATION OF OFFENSES IN THE OPT

General Sta Order 33.0304 entitled MPCID Inquiries and Investigations details the rules

and actions regarding criminal investigations in the IDF as well as other examinations that

are not part o criminal proceedings.

A criminal investigation is preceded by a complaint, known in the MPCID as a notice. This

statement may be given to the MPCID by a Palestinian complainant or a proxy human

rights organizations or private attorneys; by the MAGC, to which organizations and attorneys

oten direct their complaints; by representatives o IDF feld units, required by IDF standing

orders to pass on to the MPCID complaints o certain oenses allegedly committed by their

soldiers; and by other parties.20

For more detail regarding the use o operational debriefngs and the problems arising rom the MAGs policy to base19.

decisions regarding the opening o criminal investigations on their fndings, see Yesh Din report,Exceptions: Prosecution

o IDF Soldiers During and Ater the Second Intiada, 2000-2007 (henceorth: Exceptions ), pp, 20- 23; BTselem,Void o Responsibility: Israel Military Policy Not to Investigate Killings o Palestinians by Soldiers (September 2010)

(henceorth:Void o Responsibility).

See data in Table 4 below.20.


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However, giving a notice does not necessarily mean that an investigation will be launched.

Over the past decade, since the start o the second intiada in 2000, the opening o criminalinvestigations into alleged oenses committed during operational activities has been

conditional upon the holding o a preliminary inquiry. This inquiry process is usually based

on the operational debriefng held by elements in the chain o command o the unit involved

in the alleged oense.

Based on the examination o the fndings o the operational debriefng by the MAGC (and

in the event o death, by the MAG), a decision is made as to whether to open a criminal

investigation by the MPCID.21

I the incident o which the complaint was made did not occurduring an operational action, or i it was an oense that could not be justifed as part o an

operational action (or example, oenses o looting or abuse o a prisoner), an investigation

is supposed to open immediately, without the need or authorization rom the MAOA.

In those cases when the MAGC decides, ater completion o the inquiry process and

examination o the material collected therein, not to open a criminal investigation into the

circumstances o the event, that ends the criminal processing o the notice (although there

could be an order to put the involved soldier on disciplinary trial, whose gravity is less and

does not constitute part o a criminal proceeding).

In the event that a decision is taken to instigate a criminal investigation, the investigation

will be held at the MPCID base in the geographic location under whose responsibility the

oense was committed. Upon completion o the investigation, the fle will be summarized and

transerred to the MAGC (until the end o 2007 the military advocate o the jurisdiction and

since then to the MAOA). A Military Advocate then will review the investigative material and

decide whether to close the case (due to lack o sufcient evidence to prosecute or because

the investigation showed that the event in question did not constitute a criminal oense);

On April 6, 2011, the State Advocacy inormed the High Court o Justice (within the ramework o a petition by BTselem21.

and the Association or Civil Rights in Israel regarding investigation policies) o a change in policy so that any case in which

a civilian was killed by the fre o IDF orces in the West Bank ( so long as the death was not the result o a a clear combat

situation) would lead to the opening o a criminal investigation, as had been customary prior to the second intiada.

However, in his testimony beore the Turkel Commission a ew days later ( April 11, 2011), the MAG explained that the

change o policy related only to cases o death and that cases in which Palestinians were injured (and not killed) by IDF

fre would not require the opening o an immediate investigation but merely an inquiry and that, in that respect, there was

no change in the prevailing policy since the start o the second intiada. The MAG urther explained that the new policy

was still in development. Minutes o the testimony o Military Advocate General Maj.-Gen. Avichai Mandelblit to the Turkel

Commission, April 11, 2011, pp. 16-17.


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to order the soldiers involved be put on disciplinary trial or take other command measures

against them; to return the investigation fle to the MPCID to complete the investigation withother necessary measures or to issue an indictment against the suspects.

NOTICES, INVESTIGATIONS AND INDICTMENTS: FIGURES

For some years, Yesh Din has been collecting fgures on the opening o criminal investigations

against members o the security orces and the number o indictments submitted on oenses

allegedly committed against Palestinians and their property in the OPT. These fgures, which

were not available to the public beorehand, enable us to deduce the extent to which theIDF ulfls its duty to protect the civilian population o the OPT against criminal oenses

committed by its soldiers.

The fgures are examined rom a multi-year perspective, since the start o the second intiada

in late September 2000, when the IDF changed its criminal investigation policy on some o

the complaints o alleged oenses by soldiers against Palestinians, particularly shootings

incidents.22 We published our frst fgures on this issue in 2008, in the Exceptions report.

The fgures in the report included the number o criminal investigations that led to indictments

rom the outbreak o the second intiada in September 2000 to the end o 2007. The act

sheet published in February 2010 presented updated fgures, as o the end o 2009. This

chapter contains current fgures on the number o investigations that yielded indictments, as

well as additional fgures concerning law enorcement in the IDF upon soldiers and ofcers

allegedly involved in criminal oenses against Palestinian civilians and their property.23

For a description o the investigation policy since the start o the second intiada and the MAGCs explanations o its22.

necessity, see the Second MAGC Position Paper (MAG Headquarters, December 19, 2010) (henceorth:Second MAGC

Position Paper), pp. 8-19 [Hebrew]. See also BTselem,Void o Responsibility, pp. 13-16.

The source or all inormation and data in this chapter is the IDF. Most o the fgures were provided to Yesh Din by the IDF23.

spokesperson, ollowing requests made by the organization to the IDF based on the Freedom o Inormation Act. The IDF

spokesperson also provides Yesh Din, upon its request, with copies o indictments and judgments concerning oenses

committed by soldiers against Palestinians and their property in the OPT. These documents acilitate the monitoring o a

number o investigation fles that led to indictments and the result o the legal proceedings in those fles.


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OPENING INVESTIGATIONS AND SUBMITTING INDICTMENTS,

2000-2010

From the beginning o the second intiada to the end o 2010, the MPCID opened 1949

criminal investigations into suspicions o oenses committed by soldiers against Palestinians

and their property. This fgure includes a wide range o serious oenses against Palestinian

civilians and their property: killing and injury, looting, thet and other property damage,

violence and abuse o passersby and detainees and so orth.

According to the fgures as well as the analysis o the indictments and judgments availableto Yesh Din, at the time o writing this report at the end o April 2011, only six percent

(6%) o these investigations led to indictments. This multi-year fgure is identical to the

corresponding fgure we published in the Exceptions report about investigations opened

up to the end o 2007.24

Exceptions24. , p. 17.


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Table 2: The opening o investigations by the MPCID and resulting indictments,

2000-201025

Year Investigation fles

opened by the

MPCID

Investigation fles that yielded indictments

Number o fles Percentage o

investigation fles

opened2010 143 3 2%

2009 236 7 3%

2008 323 19 6%

2007 351 10 3%

2006 153 9 6%

2005 155 5 3%

2004 189 12 6%

2003 146 16 11%

2002 155 23 15%

2001 82 7 9%

2000 16 1 6%

Total 1,946 112 6%

The source o the inormation on the number o investigation fles opened: a letter rom Capt. Tal Bernstein, aide to the25.

Chie Military Police Ofcer, to Atty. Hoshea Gottlieb, Secretary o the Turkel Commission, April 17, 2011. The letter can

be accessed on the Turkel Commission web site at http://www.turkel-committee.gov.il/fles/wordocs/9482kamtzar.PDF

[Hebrew]. The source o the fgures on indictments served: Yesh Dins research based on indictments and judgments

provided to the organization by the IDF spokesperson. The fgures represent indictments served based on investigation

fles actually opened or each o the years in question (even i the indictment was submitted at a later date). The fgures

are current or the end o April 2011 and it is entirely possible that additional indictments will be submitted at a later date,

based primarily on investigation fles opened in the years 2009 and 2010.


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LACK OF DATA REGARDING GROUNDS FOR CLOSURE

In response to repeated demands by Yesh Din to receive fgures on the grounds or

closure fles, the MAGC said, through the IDF spokesperson, that it does not collect

data regarding the grounds or closing investigation fles in which investigations

have been completed and, as a result, it cannot provide data on their distribution.26

Thereore, even though it is clear that some o the investigation fles were closed

ater the investigators and military advocates who examined the evidence were

convinced there was no criminal oense at the basis o the complaint, it is impossibleto know how many investigation fles were closed due to lack o guilt and how many

cases were closed ater the investigators ailed to collect sufcient evidence to place

suspects on trial.

As we pointed out in the Exceptions report, the lack o reliable inormation rom the

MAGC about the scope o the ailure o MPCID investigators in the investigation o

oenses makes it very difcult to instruct investigators and prosecutors on how to

correct repeated system ailures.27

NOTICES

In 38% o the notices given concerning suspicions against soldiers o oenses against

Palestinians, no criminal investigations are opened ollowing the notice. The reasons or

this could be the MAGCs policy not to investigate complaints o certain types o oenses

committed under operational conditions, as well as the decision by MPCID ofcials that

the complaint does not indicate a criminal oense and, in some cases, even the loss o

investigation materials.

An examination o the disparity between the number o notices given to the MPCID over

the last years and the number o investigations that opened and the number o indictments

The IDF spokespersons response to queries rom Yesh Din rom March 10, 2011 and April 26, 2010. The spokesperson26.

gave similar answers to previous queries rom Yesh Din. See:Exceptions, p. 18, ootnote 14.This criticism is not new. In the27. Exceptions report, Yesh Din criticized the MAGC and MPCIDs ailure to collect data

on the grounds or closing investigation fles about oenses against Palestinian civilians. Unortunately, the military law

enorcement agencies still rerain rom collecting the aorementioned inormation.


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Year Notices

given

to the

MPCID

Investigation fles

opened

Investigation fles that

led to indictments

being served

Total Percentage of

notices

Total Percentage of

statements

2010 201 143 71% 3 1.49%

2009 415 236 57% 7 1.69%

2008 432 323 75% 19 4.4%

2007 477 351 74% 10 2.1%

2006 323 153 47% 9 2.79%

2005 292 155 53% 5 1.71%

2004 469 189 40% 12 2.56%

2003 236 146 62% 16 6.78%

2002 194 155 80% 23 11.86%2001 90 82 91% 7 7.78%

2000 21 16 76% 1 4.76%

Total 3,150 1,949 62% 112 3.56%

The fgures represent indictments based on investigation fles that opened each year (even i the indictment was presented28.

at a later date). The source o the data or number o notices given to the MPCID: a letter rom Capt. Tal Bernstein, aide

to the Chie Military Police Ofcer, to Atty. Hoshea Gottlieb, Secretary o the Turkel Commission, April 17, 2011. The letter

can be accessed on the Turkel Commission website at http://www.turkel-committee.gov.il/fles/wordocs/9482kamtzar.

PDF [Hebrew]. The source o the fgures on indictments served: Yesh Dins research based on indictments and judgments

provided to the organization by the IDF spokesperson.

served on the basis o those investigations shows that the chance o a notice given to the

MPCID ultimately resulting in an indictment against the suspects is minimal: 3,150 noticesgiven to the MPCID in the years 2000-2010 resulted in 1,949 investigations, but only 112

o the investigation fles representing just 3.5% o the notices have so ar resulted in

indictments against suspects.

Table 3: The ratio between the number o notices given to the MPCID, the

number o investigation fles opened and subsequent indictments served,

2000-201028


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CONVICTIONS, ACQUITTALS, AND CANCELLATION OF INDICTMENTS

Indictments are served by the MAGC in regional courts martial. According to Yesh Dins

inormation, as o April 30, 2011, 190 soldiers and ofcers had been indicted by the

MAGC or oenses o harming Palestinians civilians and their property. In the case o nine

deendants, legal proceedings are still pending or their results have not yet been provided

to Yesh Din.

O the 181 deendants the results o whose legal proceedings are known to Yesh Din, the

vast majority (163 deendants, 90%), were convicted at the end o the legal proceedings intheir matter. Nine o the deendants were acquitted (5%) and indictments submitted against

11 deendants were either cancelled or commuted to disciplinary trials.

CONVICTION OF SOLDIERS IN CONNECTION WITH

CIVILIAN DEATHS

Between the years 2002-2009, the MPCID opened 173 investigations intosuspicions Palestinian civilians were unlawully killed by IDF soldiers.29 Only 14 o

these investigation fles resulted in indictments against 19 deendants.

By April 2011, legal proceedings against 18 o the 19 deendants were completed.

One was acquitted, the charges against one deendant were dropped and the

remaining 16 deendants were convicted o various oenses.

The indictments issued dealt with incidents in which 17 Palestinian civilians had been

killed since the beginning o the second intiada. In the last indictment issued in this

matter, St.-Sgt. S., a soldier in the Givati Brigade, was charged with manslaughter and

unbecoming conduct. The indictment charged the accused with the manslaughter

The Israeli government published fgures showing that between 2002- 2008 the MPCID opened 162 investigations in to29.

the deaths o Palestinian civilians (source : State o Israel: The Operation in Gaza: Factual and Legal Aspects, July 2009, p.

110, para. 295). An additional 11 investigations were opened in 2009 (source: IDF spokespersons reply to a query rom

Yesh Din, April 26, 2010). The IDF spokesperson rerains rom providing data on the distribution o MPCID investigations

opened in 2010 by category. As a result, we do not have the fgures or the number o investigation fles opened into the

deaths o Palestinians in 2010.


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o a person whose identity was unknown during Operation Cast Lead, while thedeceased was walking close to a group o people o whom at least one was raising

a white ag.30

Even though 16 deendants have so ar been ound guilty o various oenses ollowing

investigations opened to clariy the circumstances o the killing o civilians, only fve

were convicted o oenses explicitly associated in the verdict with the deaths o

civilians: three Palestinians and one British citizen.31

In the cases o other deendants, the courts martial specifcally stated that the

MAGC had ailed to prove the connection between the deendants acts and the

civilian deaths under the circumstances attributed to the accused in the original

indictments.32

General Sta/816/1030. The Military Prosecutor v St.-Sgt. S.

Two additional deendants were convicted o oenses connected with attempts to disrupt investigations. One ofcer was31.

convicted o causing the death o a 16-year-old due to negligence (LAC/135/03Military Prosecutor v. Capt. Zvi Koratzky

and appeals judgment 64/04; a soldier was convicted o killing a British citizen and other oenses and his ellow soldier

was convicted o oenses relating to attempts to disrupt the investigation (South/10/04Military Prosecutor v.Sergeant

Tayseer Heib and appeals judgment 96/05; South/7/04 Military Prosecutor v.Sgt. Imad Atawna); two soldiers were

convicted in connection with the killing o a resident o the village o al-Yamun, one o causing death by negligence and

both o them or the oense o giving alse inormation and unbecoming conduct (North/450/04Military Prosecutor v.

St.-Sgt. D.G.A., North/451/04 Military Prosecutor v. St.-Sgt. R. A. and appeals judgment 154/04; two junior ofcers were

convicted o negligence or their part in the death o an inant due to an accidental burst o fre rom a heavy machine gun

(North/186/04 Military Prosecutor v. Sec.-Lt. Zvi Winikand Sec.-Lt. David Glazel and appeals judgment in the case o

Sec.-Lt. Zvi Winik59/09). See Exceptions pp. 54-59.

For urther details on this issue, see32. Exceptions, pp. 49-72. Since the publication o Exceptions judgments have been

given in the cases o two additional deendants that were initially charged with the deaths o two Palestinian civilians. In

both o these cases, the deendants were convicted o dierent oenses without their conviction being linked to the deaths

o the deceased. In the fle Central Court Martial 186/04/C Sgt.-Maj. G. A. was charged with oenses relating to the death

o the youth Omar Matar, 14, and the wounding o his 16- year- old riend in March 2003 (See Exceptions. p. 60 ). The

accused admitted to the charges in a revised indictment and was convicted o illegal use o a weapon and given a three-

month suspended prison sentence and a demotion to the rank o Private. St.-Sgt. L.I. was convicted in case C/158/03 (see

Exceptions, p. 55 ) o exceeding authority to the extent o risking lie or health and sentenced to a seven- month suspended

prison term and a NIS 1000 fne.


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CHAPTER 2

OPERATIONAL DEBRIEFING HINDERS CRIMINAL

INVESTIGATIONS

I say once again that the issue o the debrieng and the investigation involve an

inherent tension between them [] and we are aware also o the possibility that

there can sometimes be some orm o coordination between the soldiers and this

could disrupt, delay or harm our investigations. But this is the challenge we ace asinvestigators, the challenge o nally reaching the truth, based on the current policy. In

other words, I cant change the policy. So, some o the policies are now changing. In

incidents involving death, I have no doubt that this will have some eect, but we are

still subject to certain policies

(Chie Military Police Ocer in testimony to the Turkel Commission)33

THE PLACE OF THE OPERATIONAL DEBRIEFING IN THE INQUIRY

PROCESS

When a complaint made to the MPCIP or the MAGC concerns an incident that occurred

during operational activity, the established policy is to hold an inquiry procedure beore

the MAGC orders a criminal investigation. In those instances where the complaint is made

to the MPCIP, its processing is put on hold until the MAGC has completed the inquiry

process. As stated by the MAGC, the main element o the inquiry is its examination o

the operational debriefng held by military personnel who are usually part o the chain o

command within the unit involved.

[] At rst a preliminary inquiry into the circumstances o the incident will be held as

part o an operational debrieng primarily from the point of view of the forces

involved and based on its ndings (and other available data) a decision will be made

Minutes o the testimony o Chie Military Police Ofcer Brig.-Gen. Meir Ohana to the Turkel Commission, April 14, 2009,33.

p. 36.


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33

Military Advocate General,34. Second MAGC Position Paper, p. 13 (our emphasis). For criticism o this procedure see:

Yesh Din, The Duty to Investigate; BTselemVoid o Responsibility; The Association or Civil Rights in Israel,Does the

Procedure in Force or the Investigation o Inringements o the Law o Armed Confict Meet the Obligations o the

State o Israel? (Position paper, March 28, 2011) [Hebrew]; Pro. Yuval Shany, Dr. Amichai Cohen and Atty. Ido Rosenzweig,

Response to the Military Advocate Generals Position Paper on the Investigation o Allegations o Violations o

International Humanitarian Law (February 10, 2011); Human Rights Watch, Promoting Impunity: Israels ailure to

investigate wrongdoing (June 2005).

The question was included in requests or inormation rom Yesh Din to the IDF spokesperson on March 15, 2007,35.December 28, 2009 and February 2, 2010.

Only recently did the IDF spokesperson answer our request thus: In the MAGCs internal computer system there is no36.

specifc reerence to the required details, or example: [] the number o operational debriefngs examined by the MAGC

and the number o debriefngs ollowing which criminal investigations were opened. Because o the aoresaid, it is not

possible to quantiy the number o debriefngs passed on rom the various units to MAGC departments ollowing which a

criminal investigation was opened by year and type o oense []. The IDF spokesperson pointed out that considering

the aoresaid, our questions in this matter as part o our requests or inormation would not be answered because their

handling would demand an unreasonable investment o resources, according to the reservation on inormation delivery in

the Freedom o Inormation Act (IDF spokespersons response to Yesh Din, March 10, 2010). A similar answer was providedby the IDF spokesperson to an identical request on April 26, 2009.

Minutes o the testimony o Military Advocate General Maj.-Gen. Avichai Mandelblit, to the Turkel Commission, April 11,37.

2011, p. 34 [Hebrew].

as to whether there is suspicion o a criminal oense that warrants the opening o an

MPCID investigation.34

Yesh Din has, over the past ew years, asked the IDF spokesperson a number o times or

fgures rom the MAGC on the number military debriefngs examined by the MAGC and the

number o such debriefngs in which, ater examination, the MAGC ordered the MPCID to

conduct a criminal investigation.35

The recurrent answer o the IDF spokesperson to Yesh Dins requests is that such data are

not collected by the MAGC,36

but in his testimony beore the Turkel Commission, the MAGpresented fgures on this issue rom recent years: in 30 instances o the 267 debriefngs

examined by the MAOA unit (since the end o 2007) it was decided to open a criminal

investigation.37 In other words, in 89% o the incidents in which MAGC examined an

operational debriefng held ollowing an event or which a complaint had been lodged it

decided not to launch a criminal investigation.


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THE OPERATIONAL DEBRIEFING IS A STUDY TOOL

The centrality o the operational debriefng in the inquiry process makes it, in many cases,

the only investigation tool used in a complaint. Even though the MAGC claims that the

inquiry process includes, apart rom the operational debriefng, the collection o evidence

by the MPCID and receiving press clips or materials rom human rights organizations,

experience shows that the collection o testimony rom Palestinians during the inquiry

process is rare. In many cases in which MPCID investigators invited Palestinian complainants

to give statements, this invitation was later cancelled due to an order rom the MAGC to

reeze the MPCID investigation until the completion o the inquiry.38

The High Court o Justice recognized the armys use o the operational debriefng in order

to draw conclusions:

The operational debrieng is, in general, the appropriate means o investigating events

that occurred during operational activities. It is, usually, carried out by proessional

parties acquainted with the events in the area and who have an understanding o

operational activities. It happens close to the time o the event when the event is

still resh in the minds o those taking part in the debrieng. It is acilitated in a direct

and uncomplicated ashion and has constituted an integral part o IDF operational

procedures since the inception o the IDF.39

However, both the HCJ and the Military Appeals Court state that the operational debriefng

is, frst and oremost, a tool or drawing conclusions and that it is not intended or use in

criminal proceedings:

The operational debrieng in the IDF has always been seen as an essential part o

the learning process that examines the planning and perormance procedures o the

studied event and the relationship between the planning and what actually occurred.

These relationships and procedures should be examined or every military operation

routinely, during training and during operational activity by, among other tools,

debriengs. The debrieng allows conclusions to be drawn or immediate implementation

while examining constantly the basic assumptions and axioms that govern the

operations o military units.

See examples below.38.

HCJ 6208/9639. Mor Haim et al v the IDF et al (PDI 52(3) 835, 834).


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[] These characteristics o the operational debrieng place it rmly, thereore, in the

realm o study. This is a dierent and separate realm rom the criminal realm. The

criminal realm deals with dened issues, its components are past-oriented with an

anity to the uture, but rom a criminal perspective. Criminal tools and sanctions

are concerned with the past, with what happened. Their purpose and aims are

unmistakably dierent rom the aims o the study process that has the debrieng at its

core. The debrieng all military debriengs including the operational debrieng, the

subject o this discussion is uture-oriented and its main ocus is the question what

will be rom now on. In the light o ears o those being investigated that they mayimplicate themselves, a condition or the implementation o the debrieng is, thereore,

its removal and separation rom the criminal realm; in that sense, the roots o the

debrieng are in the event that took place in the past, but its outlook and peak, and

especially its goal, are aimed orward, towards the uture. Truth springeth out o the

earth (Psalm 85:12). The condition or the growth o truth is a suitable climate. I the

cloud o criminality hovered rom above it would damage its habitat and prevent it rom

establishing strong roots and fourishing.40

The operational debriefng, thereore, is not an instrument meant or the collection o

evidence or or the determination o individual criminal responsibility but rather an instrument

to be used by commanders designed to assist in the drawing o operational conclusions

and to study operational ailures and aults. The characteristics o the operational debriefng

and the way it is conducted are derived rom these goals.

Internal examination: Other than in exceptional cases, the people who perorm operational

debriefngs are commanders within the chain o command o the units involved in the

operation under examination or their commanders rom superior units. To this, we mustadd the act that within the ramework o the operational debriefng no statements are taken

rom Palestinian victims o the oenses or rom eyewitnesses who are not military personnel.

Thus the inquiry procedure, in eect, constitutes an internal examination that lacks any

independence and that is, or the most part, conducted by the body that is suspected o

allegedly committing the oense, even i the fnal decision whether to open an investigation

is taken by the MAGC.

The Military Appeals Court, BS/42/0340. Chie Military Prosecutor v Sgt. Eldad Binyamin, paragraphs 27 -29. See also HCJ

ruling 2366/05Al-Nebari v the Chie o Sta et al.


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36

The person conducting the debriefng is not an investigator: An operational debriefng is

not conducted by investigators. Those in charge o the operational debriefng are not peoplewho were trained to conduct investigations and they lack the necessary investigatory and

orensic tools to fnd evidence and expose the truth.

The debriefng is not public: According to section 539a (b)(2) o the Military Justice Law

debriefng materials will be confdential to all persons and provided, in part or in whole,

only to those military bodies who need the debriefng or the ulfllment o their duties. The

act that all debriefng materials and conclusions are kept secret rom all non-IDF parties

prevents victims o oenses, human rights organizations or any other interested partiesrom appealing against the conclusions o the operational debriefng, especially when those

conclusions ail to lead to the opening o an investigation.

A debriefng can thwart an investigation: As aoresaid, criminal investigation are put on

hold until the conclusion o the inquiry process. In this situation, i the inquiry by way

o an operational debriefng is prolonged, the eectiveness o the MPCID investigation is

impaired, i it opens at all. Not only is the debriefng unproessional but, during the period

o the debriefng, which is conducted by military ofcials who have not been trained to deal

with suspicions o criminal oenses, the uture criminal investigation is damaged:

First and oremost, there is a very real concern o the coordination o testimoniesA.

between the soldiers involved in the incident;

Interviews with the soldiers involved in the incident constitute a sort o dress rehearsalB.

or the criminal investigation;

The time that elapses until the opening o a criminal investigation makes it possible toC.

destroy or conceal evidence ound at the scene o the incident with no possibility oreconstruction, so that in many cases an investigation opening at a later stage is unable

to gather evidence at the scene;

The time that elapses until the opening o an investigation can cause witnessesD.

memories to ade and provides an opportunity to abricate evidence.

INQUIRY PRIOR TO INVESTIGATION: A PROLONGED PROCESS THAT

IMPAIRS THE EFFECTIVENESS OF THE INVESTIGATION

Another important dimension o the harm the inquiry procedure can do to the chance o

conducting a comprehensive and thorough investigation is its prolongation. In 80 notices


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out o the 192 cases whose processing by the military law enorcement authorities Yesh Din

is monitoring, the MAGC or the MPCID made the fnal decision whether to close the fle withno investigation, to close a criminal investigation that had opened or to press charges.

For 15 o the aorementioned notices, the MAGC decided, ater an inquiry procedure, not

to open a criminal investigation. In these 15 cases, the average length o time between the

time that notice o the event was given to the MPCID and the announcement o the MAGCs

decision41 to close the fle without a criminal investigation was close to a year and our

months.

On the January 5, 2008, soldiers in an armored jeep in the village o Azoun fred live

ammunition, apparently in response to stones thrown at their vehicle. As a result, M.S.,

16, who was at the scene, was hit in the leg. On March 30, 2008, Atty. Natalie Rosen

asked the MAOA on behal o Yesh Din to investigate the incident and specifcally, why

the soldiers fred live ammunition even though they were in an armored vehicle, without

using less lethal riot control methods. On May 19 2009 a year and two months ater

contacting the MAGC the MAOA answered Yesh Din that ollowing an operational

debriefng the MAG had ordered the opening o a criminal investigation. Over a year and

hal rom the announcement o the opening o the investigation, and three years ater

the actual event, the MPCID inormed Yesh Din on December 28, 2010 that the fle had

been passed on to the MAOA. As o the end o April 2011 the MAGC has yet to reach

a decision regarding the outcome o this investigation fle.42

On March 21, 2010, the cousins Salah and Muhammad Qawarik, residents o the

village o Awarta, were shot and killed by soldiers while they were on amily land close

to the village. According to the shooters, soldiers rom the Nachshon Brigade, and as

was reported in the media, the cousins had tried to attack them with a broken bottleand a pitchork.43 The very next day Yesh Din gave a notice to the MPCID Sharon

and Samaria unit on behal o the deceaseds amilies and on March 23, 2010, Atty.

Michael Sard, on behal o Yesh Din, asked the MPCIDs chie investigations ofcer,

This reers to cases in which an inquiry was conducted and a decision was made by the MAGC not to open an MPCID41.

criminal investigation. It does not reer to those incidences when, ater the MPCID received a notice it decided not to

investigate the complaint. Yes Din has dealt with about ten such cases.

Yesh Din File 1390/08 (MPCID File Sharon and Samaria 210/09).42.

See, or example, Hanan Greenberg, A terrorist attack with a pitchork is thwarted: two Palestinians killed at a checkpoint,43.

Ynet, March 21, 2010, http://www.ynet.co.il/articles/0,7340,L-3865706,00.html [Hebrew].


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the MAOA and the Chie Military Prosecutor to decide to open an MPCID investigation

as soon as possible. Since the operational debriefng was not concluded or monthsand Yesh Dins reminders o its requests to order the opening o a criminal investigation

remained unanswered, on August 25, 2010, Yesh Din petitioned the HCJ on behal

o the deceaseds parents requesting that the court order the MAG to open a criminal

investigation into the circumstances o their deaths.44 In the States Response, given on

September 2, 2010, the MAG decided to open a criminal investigation that the State

claimed was unrelated to the petition beore the court.45

As o April 30, 2011, Yesh Din was monitoring 11 cases in which there was an ongoinginquiry process and in which the MAGC had not decided yet whether to open a criminal

investigation. Between the time notices o these incidents were given and April 30, 2011, an

average o 702 days had gone by almost two years. Six o these fles had been awaiting

decision or more than two years, in three cases between one and two years had gone by

since the original notice was given and the decision on two other notices had been delayed

or a little less than a year.

On December 12, 2008, Y.K., then 14, was on his way to his home in Hebron when a

soldier, hidden behind barrels about fve meters rom the boy, called him, in Hebrew,

to come closer. When the boy

Alleged Investigation: The failure of investigations into offenses committed by Israeli soldiers

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