The well-oiled legal machine that enables IDF violence

The majority of complaints by Palestinians about violence by Israeli soldiers go nowhere, and when they do, it can take over a year for the military prosecution to decide whether to even open an investigation.

An Israeli soldier checks the ID of a Palestinian man the Old City of Hebron, West Bank, January 14, 2018. (Wisam Hashlamoun/Flash90)
An Israeli soldier checks the ID of a Palestinian man the Old City of Hebron, West Bank, January 14, 2018. (Wisam Hashlamoun/Flash90)

In his latest article, my colleague Michael Schaeffer Omer-Man described the way in which Israel’s civilian and military court system is used as a fig leaf to prevent the International Criminal Court from investigating Israeli crimes in the occupied territories. The idea is simple: as long as the local legal systems effectively fulfill their role, the ICC has no mandate to intervene.

Meanwhile, Deputy Defense Minister Eli Ben Dahan is working to promote a new bill that would grant immunity to soldiers who are suspected of criminal wrongdoing during military operations. The truth is that Ben Dahan’s bill is entirely redundant: a new report published this week by Israeli human rights organization Yesh Din show that soldiers who allegedly commit crimes against the Palestinian population in the occupied territories enjoy near-full immunity.

According to Yesh Din, between 2011-2016 (data from 2017 has yet to be published), only 3.4 percent of investigations into attacks on Palestinians opened by the IDF’s Criminal Investigations Department ended in indictments. That’s 32 out of 948 cases. That number is especially striking considering the fact that the military prosecution decides ahead of time which cases it will prosecute. This means that most complaints by Palestinians do not lead to investigations.

In 2016 the military prosecution received 302 complaints of crimes committed by soldiers against Palestinians or their property. Forty percent of those complaints had to do with soldiers opening fire on Palestinians, 34 percent revolved around soldier violence, and 24 percent were lodged in response to property damage and looting. In 220 of those incidents, the military prosecution decided to either open an investigation or close the case. Out of those, only 46 led to investigations. The remaining 174 cases were ordered closed. Of the cases that were opened, only 6.4 percent led to indictments by the end of the first quarter of 2017. That’s five cases. One of them was the case of Elor Azaria, an Israeli soldier who was filmed while executing a dying Palestinian.

So how does the military prosecution decide which cases will be opened for investigation? When it comes to incidents in which soldiers kill Palestinians, official policy says that the Criminal Investigations Unit must immediately open an investigation, “except in cases where it is clear that the activities during which the Palestinian resident was killed were clearly of a real combat nature.”

According to Israeli human rights group B’Tselem, 57 Palestinians were killed by IDF fire in 2016. In at least 79 percent of those incidents, the military prosecution ruled that the killings occurred during activities that were “of a real combat nature,” meaning that no investigation needed to be opened. According to Yesh Din, “The ambiguity of the concept of activities of ‘a real combat nature’ actually serves the military law enforcement system in a way that robs the investigation policy of its substance and contributes to the normalization of the killing of Palestinians as a result of the actions of soldiers in the West Bank.”

The small percentage of these indictments comes from an already small number of cases in which an investigation is opened in the first place. And all this from an even smaller number of Palestinians who filed a complaint (Palestinians often refrain from lodging complaints with the Israeli authorities, whether due to issues of access or t0 a deep distrust in the military legal system). According to Yesh Din, there were 40 cases in which Palestinians who had faced either bodily harm or harm to their property by soldiers told the organization they were uninterested in submitting a complaint to the army.

Israeli soldiers check the ID's of Palestinian boys in the Old City of Hebron, West Bank, May 23, 2018. (Wisam Hashlamoun/Flash90)
Israeli soldiers check the ID’s of Palestinian boys in the Old City of Hebron, West Bank, May 23, 2018. (Wisam Hashlamoun/Flash90)

Take for example the case of AA, a resident of Dheisheh refugee camp near Bethlehem, who told a Yesh Din researcher about an incident in which soldiers arrived at his home in the early hours of the morning, arresting him and his 21-year-old son. According to AA, when he exited his home to find out the whereabouts of the officer in charge to find out who approved the arrest, the soldiers beat him unconscious. He was hospitalized for a week.

When AA was asked if he was interested in help in submitting a complaint, he responded: “I do not want to file a complaint because I am afraid that they will come back to my house. Although I am blacklisted by the Shin Bet, I do not want to be prevented from traveling abroad and they will surely close my case, say things against me, and won’t pay me damages, so what is the point? These incidents happen every day in our refugee camp and I never heard that a complaint helped anyone or gave him back his rights.”

One of the indications that confirm the military prosecution’s lack of seriousness vis-a-vis complaints by Palestinians is the time that passes between the moment the complaint is lodged and until things begin moving. Between 2014-2017, Yesh Din’s legal team filed 103 complaints with the military prosecutor in the name of Palestinians who were victims of soldier violence, including 11 cases in which Palestinians were killed.

Israeli soldiers detain a Palestinian man following a house raid in the West Bank city of Hebron September 20, 2016. (Wisam Hashlamoun/Flash90)
Israeli soldiers detain a Palestinian man following a house raid in the West Bank city of Hebron September 20, 2016. (Wisam Hashlamoun/Flash90)

In 77 of those cases, the military prosecution took an average of 177 days — more than 25 weeks — from the day the complaint was filed until a decision was made on whether or not to open an investigation. The military prosecution’s response was especially delayed in cases in which it decided not to open an investigation, and in some cases took a year and a half from the date the complaint was filed.

That means that a Palestinian who fell victim to a crime by Israeli soldiers — and who bothered to file a complaint — could wait up to a year and a half, only to hear that the military prosecution decided not to investigate his complaint. Think about how quickly the military legal system acted when it investigated Breaking the Silence Spokesperson Dean Issacharoff or left-wing activist Ezra Nawi. But when it comes to Palestinians, there’s no hurry. Take your time. Moreover, as the announcement of the decision not to open an investigation is delayed, the ability of the Palestinians to appeal becomes significantly smaller. Win-win.

Two years ago, B’Tselem announced that it would cease cooperating with the military legal system, after it came to the conclusion that such cooperation was not only worthless, it actually serves as a fig leaf that the army exploits to create a semblance of the rule of law. For now, Yesh Din continues with its Sisyphean task. But the statistics they published this week show that they, too, understand the utility in expecting that the army — which receives sweeping support from its commanders and the political echelon for any crime against the Palestinian population in the occupied territories — will investigate its own crimes without bias.

This article was first published in Hebrew on Local Call. Read it here.