[The following is the latest from Yesh Din on investigations into IDF offenses against Palestinians.]
Alleged Investigation: The Failure of Investigations into Offenses Committed by IDF Soldiers Against Palestinians
PRINCIPAL FINDINGS AND RECOMMENDATIONS
Only three and half percent of complaints received by the Military Police Criminal Investigations Unit (MPCID) and the Military Advocate General’s Corps (MAGC) of criminal offenses allegedly committed by soldiers against Palestinian civilians and their property in the West Bank ultimately lead to indictments. In other words, a complaint made to the military law enforcement bodies of offenses by soldier against Palestinians have a 96.5% chance of being dismissed without an indictment being filed against the suspected soldiers. This report attempts to examine the reasons why so few of the cases examined and investigated by the IDF result in indictments.
The report is based upon Yesh Din’s monitoring of the military law enforcement agencies’ processing of 192 separate complaints made on behalf of Palestinian complainants, and on the study of the contents of 67 investigation files opened by the MPCID and closed by the MAGC without indictments being filed against defendants. The report’s findings are also based on information and figures the IDF provided Yesh Den in response to the organization’s requests over the past years.
There is no way of knowing how widespread the phenomenon of offenses by soldiers against Palestinians is: how many times over the past years soldiers looted property from homes they entered for the purpose of searches, shot civilians in defiance of the rules of engagement and with no operational justification, beat and humiliated passersby at checkpoints and on roadsides. It is reasonable to assume that in many of these incidents the victims of the offense refrained in advance from complaining to the Israeli Army so that it could investigate the offenders and place them on trial. Nonetheless, from the beginning of the second intifada to the end of 2010, the MPCID received 3150 complaints (also known as “notices”) of criminal offenses allegedly committed by soldiers against Palestinians in the territories. The complaints cover a wide spectrum of offenses including severe harm to Palestinians and their property: acts of killing and wounding, looting, theft and other damage to property, violence, abuse of passersby and detainees and other similar offenses. In 38% of the notices made concerning suspected criminal acts by soldiers against Palestinians, no criminal investigation was started following the notices. The reasons for this could be the policy of the MAGC not to investigate offenses committed under “operational” circumstances, the decision by parties within the MPCID that that the complaint did not indicate the commission of an offense or even, in some instances, the loss of data gathered in an investigation. The report’s findings indicate that of the 3150 notices made to the MPCID between the years 2000-2010, 1949 resulted in investigations but only 112 of the investigation files – 3.5% of the notices – have resulted, so far, in indictments against suspects.
In the last decade, the MAGC instituted a policy known as the “investigation policy.” According to this policy, investigations into certain offenses (such as looting or abuse) are started immediately upon receipt of a complaint. However, the opening of a criminal investigation into alleged offenses committed during operational actions is conditional upon holding a preliminary “inquiry” that is generally based on an “operational debriefing.”
The operational debriefing, a tool used by commanders in order to draw operational conclusions and learn from operational failures and mishaps, is not intended to gather evidence or to determine individual criminal responsibility. For the most part, the operational debriefing is held by parties within the chain of command of the unit involved in the alleged offense; those carrying out the debriefing are not investigators and they lack both the appropriate training and the proper tools to unearth evidence. Indeed, figures recently provided by the MAG show that in 30 of the 267 debriefings reviewed by the Military Advocate for Operational Affairs (MAOA) (since the end of March 2007) a decision was made to start a criminal investigation. In other words, in 89% of the cases in which an operational debriefing was held following the receipt of a complaint, it was decided not to open a criminal investigation.
Additionally, the very conducting of an operational debriefing may undermine an effective investigation: the decision to open a criminal investigation is put on hold until the completion of the “inquiry” process. This process, as shown by figures appearing in the report, takes, in many cases, a very long time, which harms the effectiveness of an MPCID investigation, if and when it opens, because the time that goes by enables evidence to be destroyed or concealed and impairs witnesses’ memories. Conducting operational debriefings prior to a criminal investigation also harms the prospective investigation as there is a very real possibility of the soldiers involved in the incident coordinating their versions of the events, with questioning by their commanding officers being used as a “dress rehearsal” for the criminal investigation.
The MPCID has no base within the territories and not even a permanent facility that complainants can approach themselves to give their complaints to MPCID investigators, so that the investigators can gather all the required information and decide, for themselves, the credibility of the complaint. If such a base existed, then the MPCID and the MAGC would be able to reach prompt decisions regarding the necessary investigatory procedures. Failing this, military law enforcement units rely on various intermediaries – primarily officers from the Israel Police and human rights organizations in the territories – in order to obtain, through them, complaints regarding offenses by IDF soldiers against Palestinians. They use these intermediaries in order to facilitate the often complex coordination required to arrange the time and place for collecting testimonies. In many instances, different problems and mishaps that arise on the way prevent the giving of testimonies and often cause complainants to withdraw their complaints.
Chapter 4 of the report, based on the examination of dozens of investigation files, reviews the main failures and flaws in MPCID investigations that make a significant contribution to the failure rate in the investigation of offenses committed by IDF soldiers against Palestinians and their property. Among other things, investigation logs in MPCID files indicate significant delays in conducting investigation procedures following the receipt of the original notice (complaint). In many instances, the very opening of an investigation is delayed for many weeks until the appointment of an investigator to the case.
As the vast majority of MPCID investigators neither speak nor read Arabic, they rely on the services of translators who are not members of the MPCID. This problem often causes delays in collecting complainants’ testimonies and in some cases even impairs the possibility of obtaining a full version of the events from complainant and witnesses.
MPCID investigators hardly ever make use of conventional investigation tools: polygraph tests of subjects were held in only a few of the files in which suspects were located and whose contents were examined by Yesh Din. However, in many cases suspects who agreed to polygraph examinations were never sent to take them. Confrontations between Palestinian eyewitnesses and suspects are never held. “Live” identification lineups – those in which the eyewitness is allowed to identify by sight suspects presented before him – are not held either. Instead, in certain cases MPCID investigators make use of “photographic lineups,” in which the identification of suspects is considered less effective than in “live” lineups and, as a result, photographic lineups are of lesser evidentiary value.
In many instances, central witnesses are not questioned: both Palestinians and military personnel. Many investigation files include only the complainant’s testimony, and lack the testimony of Palestinian eyewitnesses. In some cases, it appears that investigators made no effort whatsoever to summon additional Palestinian eyewitnesses who could add details to the complainant’s testimony and thereby either facilitate the location of suspects or strengthen the evidence against them. At the same time, in many cases neither soldiers nor their commanding officers, whose evidence it is reasonable to assume could shed light on the incident, were interrogated.
As a rule, MPCID investigations of offenses committed against Palestinians are conducted from the investigators’ offices and the investigators rarely go out into the field. This failure applies both to the scene of the incident – the delay in the opening of investigations into complaints in itself usually hinders the collection of relevant findings from the scene – and also to the bases of the units involved to perform searches, locate documents etc. Because the investigators rarely go themselves to the bases of the units suspected of involvement in criminal offenses and fail to locate and impound documents that could assist in the identification of the soldiers involved, they rely, in many cases, on the military units themselves to locate and identify the soldiers involved in the incident. This systematic reliance on the cooperation of elements within the units involved raises suspicions that those same elements may, on occasion, frustrate the assistance that the investigators require.
As a rule, in the investigation files examined by Yesh Din, MPCID investigators refrained from questioning senior officers under warning, both field officers and staff officers. Even in those files where the investigation raised suspicions as to the existence of illegal policies or procedures, investigators failed to widen their investigation in order to determine the responsibility of senior officers.
Even following the conclusion of a criminal investigation and the transfer of the investigation material to the MAGC for a decision, the final decision regarding the fate of an investigation file is delayed for many months. In the files monitored by Yesh Din, on average almost 14 months passed from the initial transfer of the investigation file to the MAGC to the decision by the MAGC whether to close the file or to press charges. Among the files monitored by Yesh Din and for which a decision by the MAGC has yet to be received, there are many in which more than two years have passed with no decision being made regarding their fate.
One of the most difficult obstacles that prevent law enforcement upon IDF soldiers suspected of criminal offenses against Palestinians in the Occupied Palestinian Territories (OPT) is the reluctance of the victims of the offenses and eyewitnesses to testify before the investigatory bodies. This results from victims’ fears that they may come to harm, either from the soldiers who discover they filed a complaint or by the denial of various permits. The victims of offenses also doubt the sincerity of the intention of Israeli law enforcement agencies to investigate complaints against Israeli military personnel.
This combination of factors, the main points of which are reviewed in this report, results in the negligible number of cases in which notices of alleged offenses led to criminal investigations which, in turn, resulted in indictments against defendants: only 3.5%. The chances that a criminal offense committed by an IDF soldier against a Palestinian will successfully navigate the obstacle course of lodging a complaint, an MPCID investigation and a decision by the MAGC before finally resulting in an indictment, are almost nil. The barriers on the road to law enforcement, the major ones of which are detailed in this report, are not works of nature but rather the result of conscious decisions, of the non-allocation of resources and the lack of adequate oversight of the investigators’ work.
It is the position of Yesh Din that, under these circumstances, the State of Israel is not meeting its obligation to protect the civilian population living in the area it occupied through the proper and effective investigation of suspicions of criminal offenses committed by soldiers.
RECOMMENDATIONS
1. The MAGC must stop making the opening of criminal investigations conditional on a prior inquiry procedure and the MPCID must launch criminal investigations into all complaints that, prima facie, indicate suspicion of a criminal offense. In those instances where it becomes apparent that the incident reported by the complainant occurred under circumstances that do not involve criminal intent the investigation file should be closed, even at its early stages. However, the fact that an incident occurred within the framework of an operational activity must not, in itself, provide immunity from investigation.
2. The MPCID must maintain a permanent presence at least in the north and the south of the West Bank to make it easier for those wishing to lodge complaints to do so and be received by MPCID investigators who will take their complaints and testimonies directly
3. The MAGC must train the MPCID investigators who investigate offenses against Palestinians in the laws of armed conflict and the obligations arising from them. A special emphasis should be placed on the investigation of crimes concerning collective punishment and other similar offenses that arise from the illegitimate policies of field commanders.
4. The MPCID must make a serious and concerted effort to ensure that a large number of its investigators, at least those who come into direct contact with Palestinian complainants and eyewitnesses, speak Arabic and are capable of working in that language.
5. The MAGC must make efforts to allay Palestinians’ fears that they will be harmed if they lodge complaints against members of the security forces. Among other measures, in certain cases the MAGC should consider granting the victims of crimes immunity from prosecution if they were involved in light offenses and take firm action in cases when the MPCID or MAGC learn of the harassment of complainants.
6. The MAGC must increase the size of its establishment and allocate sufficient, trained personnel for the needs of the MAOA unit.
[Click here to read the full Yesh Din report.]