On Friday, 29 January 2010, Israel submitted to the UN an update on the investigations opened following Operation Cast Lead in the Gaza Strip. The 46-page document offers almost no new information, except for updated figures on the investigations. The report states that, to date, the military has begun to examine 150 cases, most of which are still under review. In 36 cases, a Military Police investigation was initiated; the others were examined in the framework of military debriefings. This report, like previous information that official sources have published, does not specify which cases are being examined or the stage each investigation has reached.
A significant part of the report is devoted to proving the military justice system's ability to handle complaints about the military's conduct during the operation on its own. As a result of this emphasis, only part of the story is presented, while the way in which the system operates in reality is largely ignored. Several examples follow.
- The report extols the establishment of the Judge Advocate's Office for Operational Affairs in 2007, which handles, among other things, complaints against soldiers who mistreated Palestinians. The report does not mention that the unit lacks sufficient personnel and is highly overloaded by the massive number of files it has received, nor that it takes months and even years for decisions to be made on many of the files. As a result, even if a decision is ultimately made to open a Military Police investigation, the investigation is ineffective and is unlikely to expose the truth.
- The report states that the Military Police Investigation Unit is staffed by hundreds of skilled investigators, including reservists, who have undergone special training. However, MPIU investigations regarding Palestinian complaints have many structural problems: the MPIU has no base in the Occupied Territories, the investigators do not visit the scene of the incident, and they do not have a criminal forensics lab at their disposal. In addition, in most cases, investigators cannot access the Palestinian victims without the assistance of human rights organization, and most investigators do not speak Arabic. The report also refrains from pointing out that, once the investigation is completed, files wait for long periods, sometimes years, for the chief military prosecutor to decide how to proceed. In this case, too, the delayed decisions diminish the effectiveness of the process.
- The report also provides only part of the picture regarding civilian supervision of the military justice system, creating the impression that there is tight supervision. Whether this is the proper degree of supervision or not, it is important that the facts be presented precisely. For example, the report states that the attorney general is empowered to examine all the decisions of the Judge Advocate General (JAG), but does not mention that this intervention is rare and occurs only in extremely exceptional cases. The report also states that the Supreme Court is empowered to cancel decisions of the JAG, giving three cases as illustrations. However, in one of these cases, the Supreme Court did not interfere, as the JAG changed his decision before the judgment was given. The other two cases are the highly unusual exceptions to the rule and certainly do not attest to a policy. The report does not mention that Supreme Court justices have time and again reiterated their hesitance to interfere in the JAG's discretion.
No system can investigate itself. The report emphasizes the independence of the military justice system in interpreting the law. However in all other matters, it is an integral part of the military. As such, it depends on the military system for budgets, personnel complements, and promotions. For example, the last two JAGs were personally given the rank of major general by the Chief of General Staff. All the decision-makers involved in the handling of complaints are subject to this system.
Furthermore, regarding the investigation of complaints that were filed against the army's conduct during the operation, the independence of the JAG's Office is even more in doubt. The Office was involved, for example, in drafting the open-fire regulations for Operation Cast Lead, in deciding what constituted a legitimate target, and in approving the use of certain weapons. Therefore, if it is found that these determinations contravene international humanitarian law, members of the JAG's Office are liable to be investigated and prosecuted themselves. Clearly, then, they cannot be put in charge of these investigations.
Military debriefings are the major tool used by the JAG's Office to investigate the army's conduct during the operation. These debriefings are conducted by senior officers inside the military, who have no professional training in conducting such investigations, and are not independent of the persons whose acts they are supposed to investigate. In addition, as the debriefings remain confidential even after they are completed, there is no way to examine the questions raised in them, and the degree of the seriousness in which they were conducted.
The military debriefings and MPIU investigations focus on specific cases. The assumption underlying them is that the soldiers acted within a legal framework, and that the only thing left to examine is whether they deviated from the orders given them. However, this assumption is fundamentally wrong. Many suspicions of breaches of international humanitarian law during the operation relate specifically to the policy that was dictated to the soldiers. For example, decisions regarding the legitimacy of targets and the weapons permitted for use were made prior to the operation. The military investigations currently under way do not question the legality of these decisions. This method of investigation, in which policy is not at all examined, leads to most of the responsibility for violations being placed only on the soldiers in the field, while the senior officers and the political echelon, who were responsible for giving the orders, go free.
To date, more than one year after the operation ended, all the investigations conducted by Israel have led to the prosecution of a single soldier, who was convicted and sentenced to seven months' imprisonment for stealing a Palestinian's credit card. This result is hardly surprising, given that Israeli officials, among them the Minister of Defense and the Chief of General Staff, declared almost from the beginning of the operation that the IDF “is the most moral army in the world”.
B'Tselem again urges Israel to immediately establish an independent investigative apparatus composed of persons from outside the military. The investigation must examine not only the conduct of the soldiers in the field but also the orders given them and the policy that was set by the senior military echelon and the political echelon.