Void of Responsibility, Sept. 2010

Sept. 2010, Comprehensive report

From the beginning of the first intifada, in December 1987, to the outbreak of the second intifada, in September 2000, the Military Police Investigation Unit (MPIU) investigated almost every case in which Palestinians not taking part in hostilities were killed. At the beginning of the second intifada, the Judge Advocate General's Office announced that it was defining the situation in the Occupied Territories an “armed conflict,” and that investigations would be opened only in exceptional cases, in which there was a suspicion that a criminal offense had been committed. This policy, which led to a significant drop in MPIU investigations of homicide cases, ignored the varying character of the army's actions in the Occupied Territories, and treated every act carried out by soldiers as a combat action, even in cases when these acts bear the clear hallmarks of a policing action.

The primary tool used to determine whether to open an MPIU investigation is the operational inquiry, whose principal purpose is to learn lessons to improve operational activity in the future, and not to identify persons responsible for past failings. In November 2005, in the framework of a hearing on a petition filed by B'Tselem and the Association for Civil Rights in Israel objecting to the policy of not opening MPIU investigations, the army instituted a procedure calling for preliminary investigation, within a limited period of time, of cases in which Palestinians not taking part in hostilities were killed. However, the procedure did not set a time framework for making decisions whether to order an MPIU investigation or to prosecute alleged offenders. As a result, these decisions may be delayed months, even years, thus preventing effective handling of suspected criminal acts within a reasonable time from the day that the incident occurred. The establishment, in 2007, of the Office of the Judge Advocate for Operational Matters, which was intended to improve the efficiency in handling complaints and reduce the handling time, did not bring about significant change.

During the period covered by the report (2006-2009), B'Tselem made a demand for an MPIU investigation in 148 cases. The Judge Advocate General's Office ordered an MPIU investigation in only 22 cases. In 36.3 percent of the cases in which an MPIU investigation was opened, the investigation did not begin until a year or more after the incident occurred. Where an MPIU investigation was carried out, two ended with the Judge Advocate General's Office's decision to close the file without prosecution; the others await decision. In 95 cases, 1 6 of which date from 2006, preliminary handling by the Judge Advocate General's Office has not been completed, and B'Tselem has not been informed whether an MPIU investigation will be ordered.

The lack of a decision in the vast majority of cases make it impossible to determine the considerations the Judge Advocate General's Office takes into account in deciding whether to order an MPIU investigation or to close the file. To explore the considerations, the report analyzes a number of instances in which the decision was made not to open an MPIU investigation and finds that MPIU investigations were not opened also in cases in which there was a serious suspicion of clear breach of international humanitarian law. Also, it seems that the interpretation of the circumstances of the incident is based solely on the results of the operational inquiry and the testimonies of the soldiers, and not on other eyewitness testimony and evidence that conflicts with the soldiers' description of the incident.

B'Tselem protests the sweeping classification of the situation in the Occupied Territories as an “armed conflict,” which effectively grants immunity to soldiers and officers, with the result that soldiers who kill Palestinians not taking part in hostilities are almost never held accountable for their misdeeds. By acting in this way, the army fails to meet its obligation to take all feasible measures to reduce injury to civilians, allows soldiers and officers to violate the law, encourages a trigger-happy attitude, and shows gross disregard for human life.