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From the field

Israel's High Court: Army must investigate every case in which killing of Palestinian raised suspicions of breach of law

High Court rejects B'Tselem and ACRI petition, but stresses that investigating killings of civilians is essential to protecting the right to life:

On Sunday, 21 August 2011, Israel's High Court of Justice (HCJ) rejected a petition filed by ACRI and B'Tselem in which they demanded that the Judge Advocate General (JAG) be instructed to order a Military Police investigation into every case in which soldiers killed Palestinian civilians who did not take part in fighting. The Court declared the petition redundant due to the army's policy change in April 2011, instated in light of the drop in hostilities. According to the new policy, the Military Police Investigation Unit (MPIU) will investigate every incident in which a Palestinian who was not participating in the fight was killed in the West Bank. The petition was filed in October 2003.

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In her verdict, HJC President Dorit Beinisch stated: "Defending the right to life obligates the [IDF] combat units to exercise a wide variety of operations and avoid others. The petition before us deals with the duty to investigate deaths after the fact. The very fact that such an investigation is held has implications for the right to life, as it enables, first and foremost, arraignments in appropriate cases, and holding those who deviate from the law accountable. Furthermore, a criminal investigation is forward-looking regarding the duty to protect life. It deters potential future offenders, prevents debasement of the right to live, and contributes to an attitude respecting the rule of law. It should be stressed that there is no duty to investigate every death; only deaths that are suspected to have resulted from wrongful behavior must be investigated, particularly when there is concern that the law has been violated and a criminal offense perpetrated. This duty applies both in times of peace and in wartime."

Attorney Dan Yakir, ACRI Legal Advisor, commented that "We filed the petition eight years ago, and the last hearing on it was held almost five and a half years ago. It is unclear why the HJC waited so long before ruling on the petition, particularly as President Beinisch herself stressed that the issue at hand is protecting the lives of Palestinian civilians who are not involved in fighting. It is a shame that after such prolonged litigation, the Court chose to make do with the policy change that the JAG announced several months ago, without ruling on the disputed issues that were discussed at length. This means that, should the JAG decide to reduce or stop investigations again, ACRI and B'Tselem will have to file a new petition against the policy and start the entire process from scratch."

B'Tselem Executive Director Jessica Montell said in response: "The petition was rejected, but our struggle to change the investigation policy bore fruit. We struggled intensively for ten years to bring about this change, not only petitioning the High Court but also filing hundreds of demands that investigations be launched in specific cases, and public advocacy to promote the policy change. Launching an investigation is, of course, just the first hurdle. We need to make sure that the investigations, once launched, are conducted efficiently, professionally, and transparently. To this end, we will continue monitoring the process of the investigation."

Since the JAG announced policy change in April 2011, three Palestinians have been killed in the West Bank in two separate incidents. In both cases, the Military Police swiftly opened an investigation. B'Tselem is monitoring the progress and results of these investigations.