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.