Accountability for human rights violations is a crucial element of the rule of law. It is critical both for the individuals who have been harmed – in that they see those who have harmed them brought to justice – and for the public, since an effective system produces deterrence and may prevent the recurrence of future violations. Therefore, establishing legal liability for human rights violations and seeking accountability for them are at the core of what human rights organizations do, both in Israel and abroad. It is also the reason that international law and domestic legal systems require countries to adopt the necessary criminal proceedings –i.e., to effectively investigate suspected breaches of human rights and prosecute those responsible – and civil measures, in the form of compensating individuals for the harm they suffered.
The open-fire policy – which allows unjustified use of lethal force – conveys Israel’s deep disregard for the lives of Palestinians and facilitates Israel’s continued violent control over millions of Palestinians.
Even though this is an issue of fundamental importance, Israel evades its responsibilities in matters concerning the actions of its security forces in the Occupied Territories, and has instead set up alternative systems that merely create a semblance of law enforcement – both in criminal law and civil law. As a result, those responsible for harming Palestinians go unpunished, and the victims receive no compensation for the harm they suffer. The few, isolated exceptions serve only to amplify the illusion that the law enforcement systems in place are functioning properly.
Israel’s policy on accountability evinces its profound disregard for the lives, physical wellbeing and property of Palestinians. The state has also made it clear that, for its part, it bears no responsibility for the consequences of its control over the Palestinian population, neither as the occupying power in the West Bank nor an external entity exerting control over the Gaza Strip. Israel’s powers as ruler, which it is quick to enforce when it serves its own purposes, vanish into thin air when it has to answer for its actions.
In this way, Israel manages to do as it pleases in the Occupied Territories without anyone holding it to account for its actions: the military law enforcement system whitewashes violations (in the sphere of criminal justice), and the state ensured for itself a nearly blanket exemption from paying compensatory damages for harm caused by its security personnel (in the sphere of civil justice). Without deterrence and oversight mechanisms, the road to serious human rights abuses lies wide open. This ongoing state of affairs is one of the cornerstones of the occupation and of Israel’s control of the Palestinian population. Years of experience have shown that Palestinian victims stand a slim chance of seeing justice done and that the chance that Israelis be held to account for their actions is similarly slim – certainly in the case of senior ranking officials responsible for designing policy. At the same time, virtually all Palestinians in the Occupied Territories are painfully aware of how vulnerable they are to injury, abuse or even death at the hands of Israeli security forces and, moreover, that it is highly unlikely that anyone will be held to account for the harm or that the Palestinian will receive compensation for the harm sustained.
Absence of Accountability – Criminal Justice
The military law enforcement system is supposed to handle complaints filed against soldiers for harm to Palestinians, including instances of violence and gunfire that resulted in injury or death. Such harm is inherent to the occupation. The role of the military law enforcement system has been narrowly defined from the outset: to investigate only specific, individual incidents in which soldiers are suspected of breaching orders or directives. The system investigates neither the orders themselves nor the responsibility of those who issue them or determine the policy.
It follows that the system is oriented only toward low-ranking soldiers, while senior military and government officials, including the Military Advocate General (MAG), are absolved in advance of any responsibility. Therefore, even if the system were in fact accomplishing the mission with which it was charged, its contribution to law enforcement would still have been of limited effect. That said, an examination of the functioning of the military law enforcement system demonstrates that it does not strive to fulfill even this limited mandate.
From the time second intifada began in late 2000 through 2015, B’Tselem demanded an investigation in 739 cases in which soldiers killed, injured, or beat Palestinians, used them as human shields, or damaged Palestinian property. All of these cases were researched and investigated by B’Tselem, and only after the complaints were found to be credible, was the demand for an investigation sent out. Figures from mid-2016 show that in a quarter of these cases (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 were still at various processing stages at the time, and the MAG Corps was unable to locate 44 others. These figures indicate that the chance of a complaint leading to an indictment is just roughly 3%, while the chances that the MAG Corps simply loses the actual file is nearly double that.
These numbers alone raise some questions about how the military law enforcement system operates, but to gain a deep understanding of the military justice system’s flawed handling of complaints of harm to Palestinians by soldiers, the figures have to be examined in a wider context, including how the system operates and what factors it takes into consideration. Such an examination helps highlight the systemic defects that enable the military law enforcement apparatus to handle such a large volume of investigation files, yet still close the vast majority of them and to do so without achieving hardly any accountability at all:
Investigations by the Military Police Investigation Unit (MPIU) are conducted negligently, in a manner that precludes investigators from getting at the truth. Almost no effort is made during the investigation to collect external evidence, with the system citing as an excuse difficulties of which it has been aware for years and which it has made no attempt to resolve. Investigations rely almost exclusively on statements collected from soldiers and Palestinians. Nevertheless, despite the critical role statements play in the investigation, MPIU investigators are hard put to collect them, and they are often obtained only months after the incident. Worse still, at witness statement interviews, investigators 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 addition, the MAG Corps – which accompanies the investigations from the very start and oversees them – has done nothing to improve or make the investigations more rigorous, instead finding the lax MPIU investigations sufficient for making its decisions. Under these circumstances, the fact that many cases are closed for lack of evidence is no surprise and says more about the MAG Crops’ policy than about the particular case.
In many other cases, the Military Advocacy for Operational Affairs 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 occurred in “combat situations”, an exclusion that grants soldiers sweeping immunity from criminal investigations, far beyond that granted by international humanitarian law.
The military law enforcement system also draws legitimacy from the ostensible existence of civilian oversight in the form of the Attorney General and the Supreme Court, institutions tasked with overseeing 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 has elected to delegate most of his powers to the MAG and refrains from intervening in his decisions. As for the Supreme Court, it was never 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 in active service and under military jurisdiction. Both the MPIU and the MAG Corps operate without transparency, and getting information from them – both about a complaint filed, and 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. It is against this backdrop that the deliberations and recommendations of the Turkel Commission ought to be considered. The Commission, which published its conclusions back in February 2013, recommended a number of improvements to the military law enforcement system, including legislative amendments that would cover the criminalization of war crimes and address the criminal liability of commanding officers for the actions of their subordinates; improvements to MPIU and MAG Corps work methods – including establishing tighter schedules for processing and establishing an MPIU unit designated to handle complaints by Palestinians; greater transparency in the work of the MAG Corps; and a number of measures meant to enhance the MAG’s independence. Yet after the Turkel Commission, the government appointed the Ciechanover Committee, which took two and a half years – until August 2015 – to submit its own recommendations. In its report, the Ciechanover Committee advocated the implementation of only some of the Turkel Commission recommendations verbatim, stated that the implementation of others would require the allocation of additional resources, and suggested some minor changes in yet other recommendations. The Ciechanover Committee concluded by stressing that its report was not the final word on the subject, and that some issues still required more work. It recommended the establishment of another agency that would follow up on the implementation of its recommendations. Two more years have gone by since then.
And so, report after report, committee after committee, the discourse in itself creates the illusion of movement toward change and improvement in the system. This illusory movement allows officials both inside and outside the system to make statements about the importance of the stated goal of enforcing the law on soldiers, while the substantive failures remain as they were and most cases continue to be closed with no measures taken.
The appearance of a functioning law enforcement system also helps grant legitimacy – both in Israel and abroad – to the continuation of the occupation. It makes it easier to reject criticism about the injustices of the occupation thanks to the outward show that the military – including the MAG Corps – also considers accountability a serious and important matter. In so doing, not only does the state manage to keep up the appearance of a decent, moral law enforcement system, but also maintains the military’s image as an ethical military that takes action against these acts (defined as “aberrations”) and even has an extensive, professional system for doing so.
For 25 years B’Tselem contacted the military law enforcement system and demanded that soldiers suspected of harming Palestinians be investigated. Over the years, the military law enforcement system began to expect that human rights organizations, including B’Tselem, serve as subcontractors for the military investigative system: that they file the complaints, which the military will not allow Palestinians to do themselves, and that they fulfill other tasks such as coordinating collecting statements and obtaining documents. In practice, however, such communications to the military have not helped serve justice, instead achieving the very opposite. Cooperation with the military investigation and enforcement systems has not promoted accountability, but helped lend legitimacy to the occupation regime and whitewash it.
For these reasons, in May 2016, B’Tselem decided it would no longer forward complaints to the military law enforcement system and that it would stop playing a part in the system’s charade. This decision was made after a very long process of careful deliberation by B’Tselem, and was based on knowledge B’Tselem had gained over many years, from hundreds of complaints forwarded to the military, scores of MPIU investigation files and dozens of meetings with military law enforcement officials. All this information has helped B’Tselem gain a great deal of experience and given it vast and detailed organizational knowledge regarding how the system works and the considerations that guide it. It is the sum of this knowledge that has brought B’Tselem to the realization 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. Ever since, B’Tselem has continued to advocate accountability, but has been doing so without applying to the military justice system. B’Tselem continues to document incidents, collect testimonies and publicize its findings. It goes without saying that the authorities’ duty to investigate remains as it was. It also goes without saying that the authorities continue to systematically and overwhelmingly abdicate this responsibility.
Absence of Accountability – Civil Justice
Israel has managed to secure for itself a nearly blanket exemption from the obligation to pay compensation to Palestinians who it harmed. The state does not offer Palestinians harmed by its security forces a genuine opportunity to file for damages in Israeli courts, offering them no more than the illusion of being able to do so. By broadening the legal definition of what constitutes “warfare activity” and inclusive construal of this term by the courts, on the one hand, and introducing a series of procedural and evidentiary restrictions in legislation and case law, on the other, Israel has rendered virtually nonexistent the chances of Palestinian plaintiffs getting compensation for the harm they suffered.
Paying compensation to persons who have suffered injury to themselves or their property is not an act of charity – it is the state’s obligation under international law and basic moral decency. Not compensating Palestinian victims severely infringes upon their human rights as they are denied redress for violation of the basic rights to life, physical integrity and property. Denying the right to receive compensation is tantamount to a violation of the right in itself: the significance of human rights is not limited to merely having them entrenched in some law or international covenant. If no sanctions are enforced when human rights are breached, the rights become moot and the perpetrators have no incentive to institute a change in policy. Under Israeli law, the state is liable for damages that are a result of negligence, but it exempts the state from paying compensation for harm caused during “warfare activity”. This exemption is based on the assumption that warfare entails risk and damages that are substantially different than those of everyday circumstances. As combat necessarily involves conditions of pressure and uncertainty, tort law is not suited to incidents that take place during warfare.
In the 1990s, during and after the first intifada, residents of the Occupied Territories filed thousands of civil claims with Israeli courts, seeking compensation for damages caused them by Israeli security forces in circumstances that were not “warfare activity”. The claims addressed damage resulting from a variety of sources, such as instances of unlawful gunfire (including those involving fatalities or injuries), destruction of property, extreme violence, torture during interrogations by the Israel Security Agency (ISA), and incidents in which ammunition or duds left behind in the field by the military later exploded. Suing for damages was a costly process for Palestinians, dragged out for many years and imposed a series of bureaucratic hurdles. As a result, Palestinians often chose to settle for lower sums that failed to reflect the extent of harm they had sustained.
In the mid-1990s, in a bid to avoid paying even these sums of money, the State of Israel began employing various measures to broaden the exemption from liability for damage its security forces caused Palestinians in the Occupied Territories. These efforts were stepped up after the second intifada broke out in 2000. Over the years, the Knesset amended legislation several times; and, on their own initiative, the courts broadened the state’s exemption from paying compensation. These changes almost completely eliminated the possibility of Palestinians receiving compensation for injury caused them by Israeli security forces, even in incidents entirely unrelated to combat, such as clear-cut policing activities, instances of looting or physical violence. The changes in legislation and case law are clearly evident in the figures the Ministry of Defense provided B’Tselem regarding civil compensation suits filed against the state by Palestinians from the West Bank and Gaza, even accounting for the decline in the number of victims and scope of damage once the second intifada was over.
The figures indicate two clear trends: First, fewer new claims are being filed with the courts. For example, 2002 to 2006 saw an annual average of 300 new lawsuits. In contrast, 2012 to 2016 saw an annual average of 18 claims – a mere 6% of the average a decade earlier.
The second trend is of Israel paying less compensation to Palestinians. From 1997 to 2001, the state paid an annual average of 21.6 million shekels (approx. USD 5.7 million) – in settlements or pursuant to a court verdict. In contrast, from 2012 to 2016, Israel paid an average of about 3.8 million shekels (approx. USD 1 million) – a decline of more than 80% in comparison to the sums paid a decade earlier. The reduction in amounts paid to residents of Gaza during those periods is especially significant – from an average of 8.7 million shekels (approx. USD 2.3 million) a year to an average of about 280,000 shekels (approx. USD 74,000) a year, nearly 97% less. (In comparison, compensation for West Bank claimants dropped from an average of about 12.7 million shekels (approx. USD 3.3 million) to an average of about 3.5 million shekels (approx. USD 900,000) a year – approximately 72% less.)
The state cited three major justifications for its refusal to pay compensation to Palestinians harmed by Israeli security forces: that the immunity from liability for “warfare activity” as provided by law and implemented by the courts is too narrow and does not take into account the nature of the first and second intifadas, and that as a result the state was obliged to pay compensation in cases where none was warranted; that it cannot fact-check the claims made by Palestinian plaintiffs and, in some cases, has absolutely no way to mount a defense; and that it is customary in armed conflict for “each party to assume the damage it incurs”; accordingly, the Palestinian Authority, like any other state, must shoulder the payment for damages sustained by Palestinians.
These arguments are entirely unfounded. First, the exemption in law regarding “warfare activity” had been significantly broadened over the years by the courts, even before legislative amendments were completed. Gradually, the courts included more and more types of incidents under this definition, and in some instances elected in advance not to examine the circumstances in which the incident took place, declining to examine even the question of whether the soldiers were indeed in physical or mortal danger. Moreover, a good part of the actions of Israel’s security forces in the Occupied Territories has been – including during the first and second intifadas – straightforward policing activity such as staffing checkpoints, making arrests, imposing and enforcing curfews, and dispersing demonstrations. Many Palestinians have been injured in the course of such activities, which are not combat actions. Therefore, there is no justification for exempting the state from paying damages for harm sustained during these activities.
Secondly, while some of the amendments enacted over the years and some of the court rulings were meant, ostensibly, to resolve the difficulties cited by the state, the state continued to refer to the same difficulties even after these amendments were enacted. Yet the main flaw in this argument is that it contradicts the position stated explicitly in other contexts, namely that Israel in fact diligently and successfully carries out effective criminal investigations in similar incidents in which soldiers are suspected of acting in contravention of the law. This is the state’s position notwithstanding that criminal investigations are far more complicated than the process of establishing facts in torts and that the criminal burden of proof is much higher. With regard to these investigations, the state boasts that is has managed to overcome those very difficulties. B’Tselem does not agree that such investigations are in fact conducted (for more on this, see above), yet it underscores just how self-serving the state’s arguments are. When Israel feels it to be in its best interests, it boasts of having an efficient military law enforcement system with effective investigative abilities for handling cases in which Palestinians were harmed by security forces in the Occupied Territories. Yet, when it finds it expedient, the state argues it cannot carry out this self-same task. Thirdly, Palestinians cannot be considered citizens of another state capable of compensating them and agreeing upon reparations with Israel. The situation at hand is not that of two equal parties at war, but rather a state of occupation. Even after the Oslo Accords Israel remains the occupying power in the West Bank. Consequently, Palestinians who live in the West Bank – including in East Jerusalem, which Israel officially annexed – are considered protected persons. Similarly, Israel still controls many aspects of daily life in the Gaza Strip even after the disengagement, and repeatedly wages military operations there. In view of these circumstances, Israel cannot reassign responsibility for the injuries it causes and act as though the Palestinian Authority were a sovereign state. The powers Israel handed over to the Palestinian Authority under the Oslo Accords are very limited; any decision by the Palestinian Authority – even on minor or trivial matters – require tacit or explicit Israeli consent. Once again, this is a case of the state picking and choosing arguments to suit its purposes. Israel is well aware of the reality of occupation which it created and continues to maintain; as a rule, this reality is in keeping with state interests. However, to justify evading payment of compensation, the state is willing to change its tune and declare the Palestinian Authority has state-like status – all the while changing nothing in its actual treatment of the Palestinian Authority or its residents.
One of the justifications Israel cites for refusing to pay damages to Palestinians is that it is a matter that should be resolved as part of mutual arrangements to be reached once the conflict is ended. This argument offers no more than bitter irony. Israel is doing all in its power to establish facts on the ground and preclude reaching any agreement with the Palestinians. Proposing that the tens of thousands of people who have been harmed wait for the occupation to end and for the outcome of the so-called negotiations is tantamount to assuring that they will never receive any compensation.