Supreme Court justices allocated the Israel Defense Forces (IDF) three months to develop an alternative procedure for transferring information related to the killing of Palestinian civilians who took no part in hostilities, to the Military Judge Advocate General (JAG), and thus expedite the decision making process as to whether or not to launch a criminal investigation (by the Criminal Investigation Division of the Military Police) into the incident. During the hearing, Justice Dorit Beinisch, who headed the panel of judges, stated that the current system – in which the JAG decision whether or not to open a criminal investigation is based on the findings of an operational inquiry, whose purpose is completely different to that of a criminal investigation – is clearly problematic. The statements were made during the hearing of the petition submitted by ACRI and B’Tselem against the JAG; the petition demands the initiation of criminal investigations in all cases in which IDF soldiers kill Palestinian civilians who were not involved in hostilities. The petition, which was submitted in October 2003 by ACRI Attorney Noah Stein, and was based on detailed research by the human rights organization, B’Tselem, details the circumstances of the deaths of eight Palestinians who were killed by IDF soldiers between May 2002 and May 2003.
Between September 29, 2000 (the beginning of the al-Aqsa Intifada), and July 9, 2005, Israeli security forces have killed 3,244 Palestinians, of which 648 are minors. At least 1,727 of those killed took no part in the fighting. In stark contrast to the aforementioned figures, only 131 military investigations have been launched into offences associated with opening fire, not all of which relate to instances of death. In only 18 cases did these investigations lead to the filing of charges, and in one case to the defendant standing trial before a military court. To date these cases have resulted in seven convictions: one for causing death, two for intent to cause severe injury, three for causing death through gross negligence, and one for the illegal use of firearms. During the hearing, ACRI Attorney Fatmeh El-A`jou stated that, despite a slight improvement that has taken place recently, these figures convey a message of impunity to soldiers in the field. She also emphasized the importance of launching an immediate investigation as an essential element of the investigator’s work to establish the truth.
During the first Intifada the IDF acted in accordance with General Staff order 33.0304, which requires that a military investigation be initiated in every case in which a Palestinian civilian is killed, except for cases defined as “hostile acts of terrorism”. Following the outbreak of the current Intifada, the JAG changed its policy, claiming that the current situation should be defined as an “armed conflict that does not reach the proportions of war”, and ordered that military investigations only be initiated in cases in which “there is a suspicion of exceptional deviation from the laws governing obligatory behavioral norms”. The decisions are based on the findings of operational inquiries.
In the petition, the organizations emphasized the large number of Palestinian deaths that occurred during policing operations (such as: the imposition of curfews, passage through checkpoints, dispersing demonstrations), and not during fighting. In addition, the petitioners claim that, relating to the conflict in the occupied territories as “armed conflict” does not absolve the army from its obligation to investigate every instance in which a civilian who took no part in the fighting is injured. Moreover, the operational inquiry is carried out by the same forces whose actions should be the subject of the investigation to be carried out by the Criminal Investigation Division. When such an investigation represents the principal basis upon which a decision to launch a criminal investigation is based, it is hardly surprising that the number of cases that are investigated contrasts so starkly with the number of instances of Palestinian civilian deaths. The reliance of the JAG on the findings of the operational inquiry as a condition for opening a criminal investigation negates, in practice, the investigation’s primary role to establish the truth. In addition, it should also be noted that the investigations are conducted by individuals who have no relevant professional training, and some of the investigations are carried out with a superficial and unsubstantiated approach. In some instances contradictions arise between the findings of these investigators and the findings of the criminal investigation division.
The petitioning organizations further emphasize, that as the occupying force in the territories, Israel is obligated to guarantee the well-being and security of the residents of the territories. The JAG’s decision to adopt a policy that has led to such a meager amount of criminal investigations represents a breach of this obligation, and encourages a “trigger happy” policy. Thus ACRI and B’Tselem demand that the JAG issue instructions to open an investigation into every instance in which a Palestinian civilian is killed who took no part in the fighting.
During the hearing of the petition that was held in December 2003, the Supreme Court Justices voiced severe criticism of the limited and unsatisfactory data submitted by the IDF in response to the petition. The justices therefore ordered that the IDF and the State Attorney’s office submit supplementary data which should include the number of individuals killed and during what type of military operation the deaths occurred, as well as clear details of the findings of the subsequent criminal and operational investigations. Even the long and comprehensive response submitted by the state, (that was submitted extremely late), did not contain clear answers to the questions posed by the court. Moreover, subsequent Palestinian civilian deaths that occurred after the submission of the petition and its hearings, demonstrate again and again the problematic nature of the IDF policy, which bases its decision of whether or not to open up a criminal investigation on the findings of an operational inquiry. The petition also notes that former senior officials of the military judicial system have criticized the methodology employed by the army to address this issue.
last updated : 14/07/05
