IDF policy requires a criminal investigation be launched immediately when military operations in the occupied Palestinian territories cause death. But a defective system essentially ensures that the investigation will not be conducted in a fair and impartial manner, enabling soldiers to continue to act with impunity. This article was first published in The Jerusalem Post and is reprinted with permission.
By Emily Schaeffer
The death of 28-year-old Mustafa Tamimi of the village of Nabi Saleh last month raises questions about the Israeli military establishment’s investigative processes.
Tamimi was only the latest casualty of the IDF’s abundant use of tear gas to disperse Palestinian popular protest. Dozens of people have been seriously injured or killed in recent years, including Bassem Abu Rahma, who died in 2009 after being shot in the chest with a tear gas canister in the nearby village of Bil’in, and Abu Rahma’s sister Jawaher, who died one year ago this week after inhaling tear gas.
Because the tear gas canister killed Tamimi – rather than severely injuring and disabling him – the Israeli military has already launched an investigation. That is an improvement over the Bassem Abu Rahma case, when it took more than a year (and significant pressure from his family, neighbors and Israeli human rights organizations Yesh Din and B’Tselem, all of whom presented the then military advocate-general with a draft High Court of Justice petition) to get the military to investigate.
Today, IDF policy requires a criminal investigation to be launched immediately whenever military operations in the occupied Palestinian territories cause death (excluding armed exchanges). The policy was presumably introduced to boost the system’s compatibility with international legal standards.
But closer examination of Israeli military investigations, from before and after the policy change, reveals that the mere fact of investigation does not guarantee that it will be independent, impartial, professional, effective, prompt and open to public scrutiny.
In fact, Yesh Din’s recently published report, “Alleged Investigation,” reveals major failings in the investigations of the full spectrum of offenses allegedly committed by Israeli soldiers against Palestinians and their property – from looting and theft, to beatings and shootings, to causing death. So serious are these failings that only 6 percent of all cases in which a criminal investigation is opened lead to the indictment of suspected soldiers.
These failings stem directly from the lax investigative tools and methods employed by the Military Police Criminal Investigation Division (MPCID). For instance, the MPCID has no offices in the occupied Palestinian territories, so without NGOs and other agencies, Palestinians have little access to the military justice system. Fewer than 10% of complaints filed by Palestinians reach the MPCID without the intervention of outside agencies.
More significantly, few Military Police investigators speak or read Arabic, they rarely visit the scene of the crime, often neglect to question key witnesses, and hardly ever make use of conventional investigative tools beyond collecting testimonies (such as polygraph tests, line-ups, etc.).
What is more, Military Police investigations suffer from extreme delays, which necessarily damage the potential of the investigations to uncover the truth and lead to the prosecution and conviction of suspects. As a result, for instance, Bassem Abu Rahma’s death is still under investigation. His sister’s death and, for instance, the shooting of a 15-year-old in Hebron on his way home from school in 2008, an incident that caused permanent brain damage, go uninvestigated.
Since 2000, 39% of all complaints received by the MPCID were not investigated at all.
The result of a defective military investigations system is that Israeli soldiers act with virtual impunity, whether damaging personal property during nighttime searches, standing idly by while settlers harm Palestinians and their olive groves, or violating rules of engagement by shooting tear gas at close range directly at demonstrators like Tamimi and Abu Rahma. Meanwhile, the Israeli public sleeps well, believing that the bad apples are weeded out through an effective military justice system.
The Tamimi case presents Israel with an opportunity to make a clear choice. By appointing independent, professional investigators and dedicating the necessary resources Israel can establish itself as a nation that respects the rule of law. Alternatively, by dragging its feet and maintaining a system that is fraught with defects, the country will continue to flaunt international law and its responsibility to protect civilians under occupation and their property.
The Tamimi family and friends can only hope Israel chooses the former and conducts a prompt, thorough and effective investigation.
Emily Schaeffer is an attorney and a member of the legal team of Israeli NGO Yesh Din – Volunteers for Human Rights, where she coordinates the organization’s “Accountability Project,” representing victims of crimes committed by soldiers and security personnel in the Occupied Palestinian Territories.