At the end of 2000, a short time after the beginning of the second intifada, the Military Advocate General Corps (MAG) changed its policy regarding Military Police investigations. The MAG declared that the reality in the territories had become an “armed conflict” and hence there was no longer a justification for automatically opening a Military Police investigation in cases in which soldiers killed Palestinians. Instead, in such cases, an operational inquiry would be conducted within the unit and its findings would be transferred to the MAG. If the inquiry and other findings revealed that soldiers had seriously breached the open-fire regulations, an investigation would be opened. The new policy was not to apply when suspicion arose of criminal behavior by a soldier in cases of abuse, violence, and pillage. In these cases a Military Police investigation was to be opened upon receipt of the complaint.
In October 2003, the Association for Civil Rights in Israel and B’Tselem petitioned the Israeli High Court of Justice against the new policy. The petitioners requested that the MAG be required to order a Military Police investigation into every case in which a soldier killed a Palestinian civilian who was not taking part in hostilities. In April 2011, in the framework of the petition, the State Attorney's Office announced a new policy: a Military Police investigation would be opened automatically in every case in the West Bank in which a soldier killed a Palestinian civilian who was not taking part in hostilities. The announcement also stated that this policy would not apply to the Gaza Strip. Following this announcement, the High Court of Justice rejected the petition, despite the objections of the appellants.
This policy change is welcome. The current policy, however, remains problematic in several ways.
As the announcement reveals, the change is based on the fact that the situation in the field has calmed down, and does not stem from a principled change in the approach or a change in the definition of the reality as an “armed conflict”. Should circumstances change, the MAG's office may revert to the policy it held during the second intifada according to which it does not automatically opening an investigation. For this reason, and since the change does not apply to the Gaza Strip, it does not ensure compliance with Israel’s obligations.
The MAG still sweepingly defines the reality in the territories as an armed conflict. Some of the military activity in the Occupied Territories is indeed combat action; however, a significant portion of the tasks carried out by soldiers - such as staffing checkpoints, dispersing demonstrations, and arrests - constitute regular policing. These are functions which soldiers carried out during the first intifada as well. Furthermore, even if we accept the MAG’s definition, this does not absolve the army of its duty to investigate injury to civilians. International law prohibits intentional attacks on civilians even in cases of "armed conflict." In every case in which civilians are injured in such a conflict, the incident must be investigated to ensure that the soldiers complied with these rules.
The operational inquiry will remains the basis on which a decision will be made as to whether to order a criminal investigation into civilian deaths in the Gaza Strip, and into those cases where civilians were killed in combat activities in the West Bank. Yet an operational inquiry is not the appropriate method by which to make such a determination. Firstly, an operational inquiry is a summary of the information provided by the soldiers involved in an incident – the same soldiers who will have to take responsibility if it is found that they carried out actions that were illegal. As such, the reliability of an operational inquiry is inherently limited. Secondly, an operational inquiry is carried out by military personnel who have not been trained to conduct investigations. And thirdly, an operational inquiry is intended to help improve operational activity, not to examine criminal responsibility of the soldiers involved.
According to statements by the army spokesperson and press report, the army continues to conduct operational inquiries into every incident in which Palestinians were killed by soldiers. The operational inquiry occurs before an MPIU investigation is opened, and the investigators are able to take testimony from soldiers and other witnesses. This chronology is liable to thwart the criminal investigation since in the course of the operational inquiry the soldiers involved describe the events together, which could enable them to coordinate their stories. Moreover, those who conduct the inquiry are authorized to investigate further – including by taking testimony in the field, examining weapons, etc. – all activities which could taint the MPIU investigation. Lastly, when the operational inquiry concludes, its findings are published and can influence the MPIU investigators. Despite repeated requests by B'Tselem, the military authorities have not provided the organization with reliable data concerning the number of Military Police investigations opened in cases of death or the outcomes of those investigations.
From September 2000 to April 2011, when the MAG Corps changed its investigation policy, B'Tselem demanded a criminal investigation into 304 cases in which soldiers killed Palestinians. From the information available to B’Tselem, it appears that investigations were opened in only 73 of these cases. As far as B'Tselem knows, indictments were filed in nine of these cases, and 23 investigations were closed with no measures taken against soldiers; in 27 cases the MPIU completed the investigation but the case was still awaiting the decision of the Military Advocate General; and 14 cases are still under investigation. B'Tselem was informed that, regarding 168 cases, no investigation would be opened and that in 44 cases, the MAG Corps had not yet decided whether to open an investigation. Regarding 14 cases, the MAG Corps told B'Tselem that the files could not be located, and five files had been transferred to other investigative bodies.
In addition, between the MAG announcement of its change in policy and through the end of February 2012, five Palestinians have been killed on the West Bank by soldiers. In each of these cases, a MPIU investigation was opened immediately after the event although, insofar as is known to B’Tselem, none of them has yet been concluded. The decision not to open Military Police investigations as a rule, the flaws in operational inquiries, and the negligent handling of the rare investigations that were opened, have all conveyed a message to commanders and soldiers that there is little chance they will be held accountable even if they stray from the orders they receive and injure innocent persons.