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From the field

B’Tselem welcomes Turkel Commission recommendations, test will be in implementation

Israeli human rights organization B’Tselem welcomes the recommendations of the Turkel Commission concerning investigations of violations of the laws of armed conflict and calls for full and prompt implementation. Implementation of the commission’s recommendations will lead to a substantive change in the Israeli military’s investigatory apparatus.

In its recommendations, the commission adopted several fundamental principles presented to it by representatives of B’Tselem, other human rights organizations and senior jurists. The commission accepted B’Tselem’s position that an operational inquiry is not suitable as a basis for deciding whether or not the Military Police Investigation Unit should investigate an incident, and also that an obligatory time frame must be fixed in order to prevent the procrastination and delay prevailing among military law enforcement authorities. Likewise, the commission determined that in the West Bank, an investigation should be begun immediately not only in cases of civilian fatalities, but in cases of also in cases of serious injuries to civilians.

B’Tselem further welcomes several other important recommendations in the Turkel Commission Report. First and foremost is the commission’s declaration that the duty to investigate alleged violations of the laws of war is applicable even during combat situations. Particularly noteworthy is the commission’s recommendation to establish a civilian body in the Ministry of Justice to oversee the legal advice of the Military Advocate General Corps. Equally welcome is the recommendation that personal criminal responsibility be applied to commanders and to government officials for the actions and offense of their subordinates and for cover-ups.

Also important are the recommendations that all interrogations – including of Palestinians– by the Israel Security Agency (known by its Hebrew acronym, Shabak) be filmed, and that the tasks of the Comptroller of Interrogee Complaints be transferred to the Department for the Investigation of Police. The commission also stated that Palestinian victims must benefit from all provisions accorded to victims in Israeli law.

For years B’Tselem has been cautioning that the Israeli military does not properly investigate suspicious of illegal conduct and refrains from enforcing the law with regard to security services personnel who have acted unlawfully. For all of the past decade, almost no investigations were opened in cases of Palestinian fatalities. Even at present, when such investigations are opened almost automatically in cases of Palestinian fatalities in the West Bank, they often last for a long time without reaching any conclusive decision, and are often conducted in a manner neither professional nor exhaustive. By the time the Military Advocate General Corps makes a decision regarding a case, even more time elapses. In most cases, years after the incident, a decision is made not to indict those involved. This policy is not in accordance with the military’s obligation to take all feasible measures to protect the lives and wellbeing of Palestinians. In addition, this policy creates a culture of impunity, which does not deter soldiers from acting unlawfully and harming Palestinian civilians.

The Turkel Commission made several significant decisions that may improve law enforcement with regard to soldiers who have harmed Palestinians. The commission’s fundamental decisions regarding the issue of what matters should be investigated, by whom and who should be the target of investigations, as well as its decisions with regard to the way investigations are conducted can all lead to a significant improvement in law enforcement in cases of soldiers who have harmed Palestinians.

B’Tselem calls on Prime Minister Benjamin Netanyahu to adopt the conclusions of the commission he appointed and implement them.

Background on the problems affecting the current investigative process:

B’Tselem figures reveal: Since implementation of new investigation policy, virtually all MP investigations of Palestinian deaths still open

As of April 2011, following a change in policy by the Military Advocate General (MAG) Corps, the Military Police Investigations Unit (MPIU) has launched inquiries into the deaths of twelve Palestinians killed in the West Bank by Israeli security forces. The policy change was adopted as part of the sessions of the Turkel Commission.

However, only one of the twelve investigations has been completed, and it was closed without taking legal action against the soldiers involved. In seven cases, the investigation is ongoing. In two other cases, the file has been transferred to the MAGs office for decision, and in a further two cases, the file was sent back to the MPIU for supplementation.

These figures, which are a consequence of procrastination and delays on the part of investigatory authorities, demonstrate that the new investigatory policy has not promoted accountability with regard to alleged criminal offenses. Appended to this press release is a list of the Palestinians killed in the West Bank whose deaths resulted in MPIU investigations since April 2011.

The Turkel Commission and investigation of laws of war violations

The Turkel Commission, appointed following the affair of the Marmara ship ­– which, on of 31 May 2010, tried to break the naval blockade imposed on the coast of the Gaza Strip – was charged with investigating, inter alia, the investigatory system in use in Israel to address allegations of violations of the laws of war. As part of the Commission’s deliberations, the MAG Corps announced a change in policy so that as of April 2011 an MPIU investigation would be opened in every case in which a Palestinian who was not taking part in hostilities was killed by security forces in the West Bank. B’Tselem applauded this change but wishes to highlight some of the remaining problems with the military’s investigatory apparatus:

  1. Conducting an operational inquiry to decide whether or not to open an MPIU investigation: According to the MAG Corps announcement, the decision whether to open an investigation into the killings of civilians during instances of combat in the West Bank, and in all cases in the Gaza Strip, will continue to be based on the findings of a military operational inquiry. An operational inquiry, however, is not the appropriate means of determining whether a criminal investigation is warranted. For one, the operational inquiry is a summary of testimonies by the soldiers involved in the incident. These soldiers will be the ones held accountable if found to have acted illegally – thus the credibility of the summary is diminished. Second, the inquiry is conducted by military personnel untrained in investigations. Third, the purpose of the inquiry is to improve military performance, not to assess criminal responsibility of the soldiers involved in the incident.
  2. The operational inquiry undermines MPIU investigations: According to announcements by the IDF Spokesperson and accounts in the media, the Israeli military still conducts operational inquiries in every case in which Palestinians are killed by soldiers. The operational inquiry takes place even before MPIU investigators can reach the scene and question soldiers and other witnesses. This sequence of events may undermine the investigation, because during operational inquiries soldiers present their versions of the incident in a joint debriefing and can therefore coordinate accounts. Moreover, in the course of the operational inquiry, military personnel are authorized to take additional investigatory actions, including collecting evidence in the field, examining weapons, etc., possibly impairing the subsequent MPIU investigation. Lastly, upon its completion, the findings of the operational inquiry are published and these might influence the MPIU investigators.
  3. Investigative delays: Neither the MAG Corps announcement nor any other military directive sets a time limit for the completion of the investigation. Consequently, MPIU investigations last for months, sometimes even years, preventing effective law enforcement on against perpetrators and providing no deterrent to future violations by others. Since the policy change in April 2011, 14 Palestinians have been killed in 13 different incidents in the West Bank. In 12 cases, an MPIU investigation was opened and, as far as is known to B’Tselem, to date, none has been concluded.
  4. Senior military officers and senior government officials are not investigated: MPIU investigations are conducted by soldiers and each investigation focuses on a single incident, aiming to examine whether the conduct of soldiers in that particular incident involved criminal actions. MPIU investigators are neither authorized nor competent to investigate issues of policy or of examining the instructions or directives given to soldiers. Furthermore, they are not authorized to investigate government officials, and structural limitations impede their investigation of senior military officers.

In light of the above, B’Tselem has demanded in the evidence it gave to the Turkel Commission that an effective independent investigatory mechanism be established to address suspected illegalities by members of the security forces and to investigate responsibility on the part of senior military officers and government officials. Such a mechanism could operate in situations in which an MPIU investigation is inappropriate.