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Change in military investigation policy welcome, but it must not be contingent on the security situation

B'Tselem and the Association for Civil Rights in Israel (ACRI) welcome the Israeli military’s announced change of the policy of investigations, made today (6 April) in an updated statement to the High Court of Justice in a petition filed by the two organizations. At the same time, the organizations stress that the change of policy as presented by the Judge Advocate General (JAG) is insufficient to uphold Israel’s obligations regarding accountability and the protection of the right to life. In their petition of October 2003, B'Tselem and ACRI demanded that the JAG open a Military Police investigation in every case in which IDF solders kill a Palestinian civilian who was not taking part in hostilities. 

The JAG’s announcement indicates that the policy change is dependent on the security circumstances. This means that renewed security tension could lead to the policy's reversal and a return to the situation in place over the past ten years, in which the vast majority of civilian deaths were never investigated.

It is clear that the announced change is not only the result of the petition to the High Court. It is the culmination of ten years of intensive effort to overturn the military’s policy not to automatically open investigations in such cases. The organizations pursued accountability in hundreds of individual cases and engaged in public education and advocacy to promote change on the policy level. The right to life is meaningless without effective accountability mechanisms when a person is killed. For this reason, changing this policy was a central focus of our activities. 

B'Tselem and ACRI added that the decision to open a criminal investigation is necessary but not sufficient. Those investigations opened must be conducted effectively, professionally, and with complete transparency. Toward this end, the organizations will continue to monitor the handling of the investigations.

 

Background and statistics

The military today announced that: “every case in which uninvolved Palestinians are killed by IDF fire be investigated immediately by the Criminal Investigation Division. This will apply unless it occurred during an activity with clear elements of combat (e.g. fire exchange).”

During the first Intifada the IDF acted in accordance with General Staff order 33.0304, which requires that a military police investigation be initiated in every case in which a Palestinian civilian is killed, except for cases defined as “hostile terrorist activity”. Following the outbreak of the second Intifada, in September 2000, then-Judge Advocate General, Maj. Gen. Menachem Finkelstein, changed this policy, and ordered that military police investigations only be initiated in cases in which there is a suspicion of criminal behavior by the soldiers. The decisions are based on the findings of operational inquiries. The current JAG, Maj. Gen. Avichai Mandelblit has continued this policy since taking office.

The change of policy resulted in a drastic drop in the number of investigation launched by the Military Police:

According to B’Tselem statistics, from the beginning of the second intifada, on 29 September 2000, to the end of 2010, Israeli security forces killed 4,927 Palestinians in the West Bank and in the Gaza Strip, 970 of them minors (under age 18). At least 2,227 of the fatalities were not taking part in hostilities. Another 239 were the object of a targeted killing. Thousands more were injured. [These figures do not include the casualties in Operation Cast Lead.]

According to figures of the Judge Advocate General’s Office, in the years 2002-2008, Military Police investigations were opened into only 162 cases in which Palestinians were killed (we could not obtain official total figures for the entire intifada period).

Between 2001-2010, B'Tselem filed 300 requests that a Military Police investigation be conducted. The military opened Military Police investigations into only 61 of these cases, leading to the filing of only nine indictments.

In another 121 of the 300 requests, the JAG’s Office has not yet decided whether to open a criminal investigation. Some of these 121 cases occurred over five years ago. In 108 cases, the JAG’s Office decided not to open a Military Police investigation.

In the petition, B'Tselem and ACRI argued that a significant portion of the Palestinians had not been killed during hostilities, but while soldiers were carrying out a policing function, such as enforcing curfews, staffing checkpoints, and dispersing demonstrations. However, even in armed conflict, the army is not exempt from its obligation to investigate every case in which civilians not taking part in hostilities are hurt. In addition, the petition criticized the reliance on the operational inquiry as the basis for deciding whether to open a Military Police investigation. Given their nature and the manner in which they are conducted, operational inquiries are not an effective, thorough, and independent method of investigation.