“There is no longer any point in pursuing justice and defending human rights by working with a system whose real function is measured by its ability to continue to successfully cover up.”
The Israeli human rights organization B'Tselem announced this morning (Wednesday, 25 May 2016) that it will stop referring complaints to the military law enforcement system, in order to avoid contributing further to the pretense inherent in the work of this system. In a report published today entitled The Occupation’s Fig Leaf, B'Tselem explains that this decision was taken after a protracted period of reflection in the organization, based on its experience in hundreds of complaints B'Tselem has submitted to the military law enforcement system and dozens of Military Police Investigations Unit (MPIU) files it has examined. This experience has led B'Tselem to the recognition that there is no longer any point in pursuing justice and defending human rights by working with a system whose real function is measured by its ability to continue to successfully cover up unlawful acts and protect perpetrators. B'Tselem will continue to document and report on human rights violations by Israel in the Territories, but it will stop submitting complaints, coordinating meetings between the MPIU investigators and Palestinian victims and eyewitnesses, an securing various documents for the investigation authorities.
The role of the military law enforcement system has been narrowly defined to begin with: it investigates only specific incidents in which soldiers are suspected to have acted in breach of the orders or directives they were given. The system does not investigate the orders themselves nor the responsibility of those who issue them and make the policy. As such, the system is oriented toward low ranking soldiers only, while senior military and government officials, including the MAG, are absolved in advance of any responsibility. In this state of affairs, even if the system had fulfilled its tasks, its contribution to law enforcement would still remain limited. However, an examination of the operation of the military law enforcement system indicates that it makes no attempt to fulfill even this limited mandate.
The report presents data concerning complaints submitted by B'Tselem to the Military Advocate General (MAG) Corps since the beginning of the past decade. Since the second intifada began in late 2000, B’Tselem has demanded that the MAG Corps investigate 739 cases in the West Bank, in which soldiers killed, injured, beat or used Palestinians as human shields, or damaged Palestinian property. An analysis of the responses B’Tselem received as to how the military law enforcement system handled these 739 cases shows that in a quarter (182) no investigation was ever launched, in nearly half (343), the investigation was closed with no further action, and only in very rare instances (25), were charges brought against the implicated soldiers. Another thirteen cases were referred for disciplinary action. A total of 132 cases are still at various processing stages, and the MAG Corps was unable to locate 44 others.
Over the course of 25 years’ work with the military law enforcement system, B'Tselem has gained a great deal of experience and vast and detailed organizational knowledge regarding how the system works and the considerations that guide it. It is the sum of this knowledge that serves as the basis for pointing to the structural failures that underpin the military law enforcement system’s ability to process a sizeable caseload and yet close the vast majority of cases without any further action:
With MPIU investigations conducted incompetently, investigators cannot get at the truth. Instead of evidence, investigations rely almost exclusively on statements collected from soldiers and Palestinians. Nevertheless, the investigation files show that MPIU investigators are hard put to collect these statements, which are often obtained only months after the incident. Investigators at witness statement interviews function more like stenographers taking dictation than staff tasked with uncovering the truth. This is the case even when soldiers’ statements are found to contradict the accounts given by other soldiers or by the complainants.
The investigation file is transferred to the Military Advocacy for Operational Affairs, which is guided by considerations that almost inevitably dictate closing the file with no further action. Many cases are closed for “absence of guilt”, since the MAG Corps simply assumes that the accounts given by soldiers suspected of committing an offense are reliable – usually with no supporting evidence.
In many other cases the MAG Corps for Operational Matters elects not to launch a criminal investigation at all. Sometimes, it justifies its decision on the grounds of “absence of guilt”. Here, too, it does so on the basis of soldiers’ accounts of events. Sometimes, in cases in which there are Palestinian fatalities, the grounds are that the deaths were in “combat situations”, an exclusion that grants sweeping immunity to soldiers from criminal investigations, far above and beyond that granted by international humanitarian law.
The military law enforcement system also draws legitimacy from the ostensible existence of oversight mechanisms within the civilian system in the form of the Attorney General and the Supreme Court, saying they are meant to oversee the work of the MAG, who wields extensive authorities, as well as the work of the MAG Corps as a whole. However, the Attorney General elects to delegate most of his powers to the MAG and refrains from intervening in his decisions. As for the Supreme Court, it is not meant to serve as an oversight mechanism, and in the few cases in which it was asked to do so, for the most part it preferred not to intervene.
The military law enforcement system is plagued by a host of issues in the basic way it is run: The system is inaccessible to Palestinian complainants, who cannot file complaints with the MPIU directly and must rely on human rights organizations or attorneys to file the complaints on their behalf. The processing of each complaint lasts months, and even years, so that often enough soldiers who are the subject of the complaint are no longer under military jurisdiction. Both the MPIU and the MAG Corps act without transparency, and getting information from them both about a complaint filed, as well as with general information about their work – requires repeated requests.
While changes have been made to the military law enforcement system over the years, they mostly served to reinforce the impression that efforts were being made to get at the truth, and did not resolve the system’s substantive problems.
Effective investigations that get at the truth are critically important. This is why establishing legal liability and accountability for human rights violations is the core of the activities of human rights organizations both in Israel and abroad. And so, for 25 years, with a view to establishing accountability and preventing future harm, we contacted the military law enforcement system and demanded that soldiers suspected of harming Palestinians be investigated. One of the reasons we did so was that we hoped that in this way we were helping bring justice to the Palestinian victims and to establish deterrence that would prevent future similar incidents. If that had been the outcome, this paper would not have been written. In reality, however, B’Tselem’s cooperation with the military investigation and enforcement system has not achieved justice, instead lending legitimacy to the occupation regime and aiding to whitewash it.