Print

 Overview

The Palestinian Centre for
Human Rights (PCHR) submitted 490 criminal complaints, on behalf of 1,046
victims, to the Israeli Military Advocate General (MAG). These complaints
alleged the commission of international crimes and requested the opening of a
criminal investigation. The majority of complaints were submitted by mid-2009.

 

The complaints submitted by
PCHR cover virtually the entire spectrum of possible international humanitarian
law violations, including the war crimes of: wilful killing, the direct
targeting of civilians and civilian objects, the extensive destruction of
property, and indiscriminate attacks.

 

To-date, in response to these
490 criminal complaints, PCHR has received only 21 responses:

 

– 19
interlocutory responses indicating that the complaint had been received, that
it will be checked, and that PCHR would be informed of the result. No further
information has been received.

– 1
response indicating that the case was closed as the witness would not travel to
Erez crossing to be interviewed by the Israeli Military Police.

– 1
response indicating that a soldier had been charged. The soldier was convicted
of the theft of a credit card, and sentenced to 7.5 months in jail.

 

PCHR note that a number of
cases relating to PCHR’s clients have ostensibly been closed, as reported, for
example, in the Israeli media. However, PCHR has only received one official
notification regarding the closure of a file.

 

PCHR emphasize that, three
years after the offensive, no response whatsoever has been received from the
Israeli authorities with respect to 469 criminal complaints (relating to 776
victims). Furthermore, no further responses, have received in relation to the
19 interlocutory responses. Of 490 criminal complaints, substantive responses
have only been received with respect to 2 cases.

 

It is PCHR’s unequivocal
conclusion that the Israeli authorities have comprehensively failed in their
legal obligation to conduct effective criminal investigations into allegations
of international crimes, denying the fundamental rights of victims in the Gaza
Strip to a remedy, and the equal protection of the law.

 

It is clear the recourse must
now be had to mechanisms of international criminal justice. These cases must be
investigated by the International Criminal Court. Victims’ rights must be
upheld, and those responsible held to account.

 

The Criminal Complaint Procedure

 

In order to attempt to secure
victims’ right to redress in the event of a violation of international law, a
complaint must be submitted to the Israeli Military Advocate General requesting
the opening of a criminal investigation.

 

This request is the sole avenue
available to representatives of the victims in the criminal sphere. PCHR is
unable to approach the Israeli courts directly with a criminal complaint.

 

Flaws Inherent in the Israeli Justice System

 

PCHR has identified a number of
flaws inherent in the Israeli justice system. The three principal issues
concern the role of the Military Advocate General, the type of investigation
conducted, and the lack of civilian supervision.

 

1-
The Role of the Military Advocate General

 

As noted, all complaints
requesting the opening of a criminal investigation are submitted directly to
the Israeli MAG. The MAG is then responsible for, inter alia, the decision to open or close an investigation, and the
decision to issue an indictment.

 

However, the MAG wears a
dual-hat and is responsible for (a) enforcing the rule of law in the military,
and (b) providing legal advice to the Military. With respect to complaints
alleging the commission of international crimes, in particular, a clear problem
exists. Because the MAG provides legal advice to the military during military
operations, PCHR are often requesting the MAG to open an investigation into the
legality of conduct, which he has already decided to be legitimate. Incidents
relevant to Operation Cast Lead, for example, include the decision to use white
phosphorous, the choice of targets, the choice of weapons used, and so on. This
has clear implications with respect to fundamental issues of independence and
impartiality.


 

The central decision-making
role of the MAG can be illustrated through a diagram presented by the State of
Israel:

 

 

As can be seen from this
diagram, it is the MAG who is the principal decision-making organ; at all
stages the decision to open or close an investigation rests with the MAG
himself. In effect this system operates as a loop, with the MAG responsible for
each strategic decision. This system is open to manipulation, in that the MAG
can allow investigations to proceed – to provide an illusion of investigative
rigour – only to subsequently close them; PCHR believe that a number of
procedures opened in the context of Operation Cast Lead fulfilled this exact
purpose. In many cases, procedures appear to have been undertaken to show Israel’s
“significant results”. However, these procedures reached standardised
conclusions, which had been consistently iterated before any investigative
procedure began, namely that: “[t]hroughout the fighting in Gaza,
the IDF operated in accordance with international law.” The findings of some of
these procedures which appear to have been preordained, and the stark contrast
with available evidence, are discussed further below.

 

2-
Investigations

 

If the MAG decides to open an
investigation, this will typically take the form of either a military police
investigation, or an operational debriefing. The overwhelming majority of cases
in which an investigation is opened take the form of an operational debriefing.

 

Under the Israeli Military
Justice Law an operational debriefing is a procedure intended to analyse an
incident from an internal military perspective, so that lessons may be learned,
conclusions drawn, and so on, for the purpose of enhancing the performance of
the Israeli military. As a result, debriefings are conducted within the chain
of command, interviews are only conducted with members of the military
(preventing a cross-examination of facts), and all findings of the operational
debriefing are secret: by law, they may not be used in court.

 

As stated by the State of
Israel, an operational debriefing “normally focuses on examining the
performance of the forces and identifying aspects of an operation to preserve
and to improve, but may also focus on specific problems that occurred. By
undertaking this review, the IDF seeks to reduce further operational errors”.

 

The fundamental problem with
operational debriefings is that they are being used in lieu of effective
criminal investigations. It is clear from the very definition of operational
debriefings that they in no way meet the requirements of international law.
They are simply, and by definition, not genuine investigations. However, it is
emphasized that these inadequate operational debriefings, inevitably form the
basis on which the MAG makes a decision regarding opening a military police
investigation, closing the investigation, or issuing charges.

 

3-
The Lack of Effective Civilian Supervision

 

By law, the actions of the
Israeli MAG are subject to the supervision of the Israeli judicial system, and
ultimately the Israeli Supreme Court, acting as the High Court of Justice.

 

However, while this supervision
exists de jure, the High Court of
Justice has established a ‘margin of appreciation’ doctrine which prevents
effective civilian supervision of the military. In effect, the High Court of
Justice has consistently held that decisions which are made on the basis of an
analysis of facts or evidence fall within the exclusive sphere of competence of
the MAG, and that in these instances the High Court will not intervene.

 

Necessarily, any decision to
open or close a criminal investigation is made on the basis of an analysis of
evidence and facts; in these instances the High Court of Justice will not
intervene. Therefore, while civilian supervision exists de jure, de facto it is denied.
The responsibility to open a criminal investigation is left in the hands of
those implicated in the commission of the alleged crime.

 

 

Conclusion

 

These three factors – the role
of the MAG, the mechanisms of investigation, and the lack of civilian supervision
– combine to fundamentally prevent genuine investigations within the Israeli
judicial system. This analysis is confirmed by PCHR’s experience in relation to
Operation Cast Lead. Of 490 criminal complaints, 469 simply have not been
replied to. 19 responses have merely noted receipt of the complaint, without
providing follow-up information. Only 2 complaints have received substantive
replies; both of these relate to the theft of cash and credit cards.
Allegations of war crimes have been completely ignored.