June 22, 2005

Summary

In May 2005, an Israeli military court convicted a soldier of "severe intentional harm" to a civilian and sentenced him to twenty months in prison. The soldier was charged with shooting an unarmed Palestinian man in the southern Gaza town of Rafah in October 2003. This was, as the Israeli daily Ha'aretz observed, "the harshest punishment imposed on an IDF [Israel Defense Forces] soldier in the four and a half years of fighting in the territories." [1]

That same month, on May 19, 2005, the IDF announced that it had opened a Military Police (mezah) investigation into the May 4 shooting deaths of two Palestinian teenagers in the West Bank town of Beit Lakia. The teenagers were among a large group that reportedly threw stones at bulldozers Israel was using to construct a metal and concrete barrier, or wall, in the West Bank. [2] The IDF had suspended the officer who opened fire the day after the incident. As one experienced journalist wrote, "Such a swift acknowledgement by the military of improper behavior in the fatal shooting of Palestinians is rare." [3]

It remains unclear if these two developments represent a change in IDF policies regarding unlawful use of force resulting in deaths and serious injury to Palestinian civilians. Those policies until now have been characterized by inaction and cover-up. Such a change would therefore be most welcome.

In recent months several high-profile killings have drawn Israeli and international attention to the army's failure to conduct thorough and impartial investigations where there is credible evidence of unlawful use of force against civilians-none more so than the October 5, 2004, incident in which Givati Brigade soldiers shot a thirteen-year-old Gaza schoolgirl. An internal IDF debriefing immediately after the incident found that the company commander had "not acted unethically." [4] Fellow soldiers then released a communications tape to the media showing that another soldier had warned the commander that the victim was "a little girl." The tape recorded the commander saying, "Anything that's mobile, that moves in the zone, even if it's a three-year-old, needs to be killed." [5] On the tape he also states that he "confirmed the kill" by firing at the girl's body at close range. The IDF responded by opening a Military Police investigation that yielded a five-count indictment against the commander, but the charges did not include murder or manslaughter. [6] The commander's trial was still ongoing as of this writing in early June 2005. [7]

Between September 29, 2000, and November 30, 2004, more than 1600 Palestinian civilians not involved in hostilities, including at least 500 children, were killed by Israeli security forces, and thousands more were seriously injured. [8] The IDF informed Human Rights Watch that as of May 10, 2004, it had criminally investigated just seventy-four alleged cases of unlawful use of lethal force, less than 5 percent of the civilian deaths in nearly four years of what is commonly known as the al-Aqsa intifada, or uprising. [9] As of June 6, 2005, the IDF had not responded to a February 2005 request for updated information on indictments and convictions since its May 2004 communication. [10]

There are two situations in which the death or serious injury of civilians should be investigated. The first is in situations of armed conflict where there is prima-facie evidence or there are credible allegations of unlawful killings, or where all feasible precautions were not taken to protect civilians and other protected persons, resulting in preventable or unjustifiable civilian casualties. International humanitarian law (IHL) requires that armed forces distinguish at all times between combatants and non-combatants, and absolutely prohibits any deliberate killing of civilians. It also requires that armed forces observe the principles of military necessity and proportionality.

Independent and impartial investigations are also required when death or serious injury results from the use of lethal force under circumstances that do not constitute armed conflict. In this case, human rights principles and the standards related to the use of force in policing and law enforcement contexts apply. Almost all of the cases of death and serious injury investigated in this report occurred in circumstances that cannot fairly be characterized as situations of armed conflict.

In any military occupation, the line between armed hostilities and law enforcement can blur. However, both IHL and standards governing the use of lethal force in law enforcement were established with the explicit intent to provide protection for civilians. Therefore, where indications of armed conflict conditions are ambiguous, the government should investigate to ensure that civilians are receiving the protection to which they are entitled under both IHL and human rights law.

The recent investigations and prosecutions cited earlier notwithstanding, Human Rights Watch has found that Israeli military's investigative practices and procedures are not impartial, thorough, or timely. The military rarely has brought wrongdoers to justice, and existing practices have exerted little deterrent effect. In May 2004, for example, Zvi Koretzki was convicted for the negligent killing of sixteen-year-old Muhammad `Ali Zaid; he was demoted and sentenced to two months of imprisonment. [11] In contrast, the same court system handed down a sentence of six months to a defendant who had stolen a mobile phone, cigarette lighter and $500 cash. Conscientious objectors have been sentenced to twelve months in prison.

Apart from the Koretzki case, Human Rights Watch is aware of only one other conviction of an IDF soldier for negligent killing in the past four years:the February 2005 sentencing of a soldier for the shooting death of a Palestinian at a West Bank checkpoint. Human Rights Watch is also aware of two cases of convictions for inflicting "serious intentional harm" (including the October 2003 incident mentioned at the beginning of this report) and two convictions for unlawful use of a weapon that resulted in serious injury or death. [12] In no other case of which Human Rights Watch is aware has an IDF soldier been convicted of any criminal offense for killing or injuring a Palestinian.

At the heart of the problem is a system that relies on soldiers' own accounts as the threshold for determining whether serious investigation is warranted. Instead of initiating impartial investigations in such cases, the IDF relies on operational de-briefings, which Israeli officials have misleadingly referred to as "operational investigations," "field investigations," or "military investigations." The frequent discrepancies between IDF accounts of civilian deaths and injuries, on the one hand, and video, medical, and eyewitness evidence on the other hand, is the result in part of the IDF's practice of asking soldiers to "investigate" other soldiers from the same unit or command, without seeking and weighing testimony of external witnesses. Exculpatory claims of soldiers are taken at face value, at best delaying and at worst foreclosing a prompt and impartial investigation worthy of the name. So-called "operational investigations" may serve a useful military purpose, but they do not constitute proper investigations: they are wholly inadequate to determine whether there is evidence of a violation of human rights or humanitarian law, and they serve as a pretext for maintaining, incorrectly, that an investigation has taken place. Another critical weakness of this current system is the absence of victim involvement in the investigative process, and the demonstrated failure of the IDF to solicit or take seriously testimonies of victims or non-IDF witnesses as a basis for checking the reliability of soldiers' accounts.

This critique of the system and its flaws is nothing new. Different aspects of Israeli security forces' impunity in the OccupiedPalestinianTerritories have been aired in commissions and court cases, newspaper articles, and Knesset meetings for more than twenty years. Investigators rarely consult Palestinian witnesses, even though human rights groups and victims' families frequently present the Judge Advocate General's (JAG) office with directly relevant testimony from these witnesses. In the rare instances in which investigators recommended prosecution, the victims have tended to have foreign connections capable of producing external political pressure. The trial of the soldier who shot and killed Tom Hurndall, ongoing as of early June 2005, is a case in point (see below). When investigations do occur, deaths and injuries to Palestinians are treated less seriously than other infractions or violations, and differently from cases where those harmed by the IDF are Jewish Israelis. [13]

What is new is the mounting number of deaths and injuries of civilians that should, but do not, receive the serious investigation they deserve. All civilian deaths and injuries in the 1988-93 Palestinian uprising were investigated, although the quality of the investigations was often poor. [14] Following the outbreak of clashes in late September 2000, the IDF changed this policy, saying that deaths of civilians in the OccupiedPalestinianTerritories would no longer be routinely investigated because the situation was "approaching armed conflict" and that investigations would be limited to "exceptional cases." The IDF's explanation fails to take into account its obligation to investigate deaths and serious injuries of civilians where there is prima facie evidence or there are credible allegations of serious violations of international humanitarian law, or where deaths occur when lethal force is used in law enforcement rather than armed conflict circumstances.

Militaries investigate allegations of wrongdoing by their soldiers for reasons of self-interest, among other reasons. They do so because members of the armed forces must be accountable to their superiors in order to maintain operational efficiency, enforce discipline, and uphold the integrity of the armed forces. In a functioning democracy, the accountability of individuals entrusted with the use of lethal force is essential.

Armies, furthermore, are obliged under IHL to investigate and criminally punish those responsible for serious violations of the laws of war. Israel has ratified the Fourth Geneva Convention and has a duty to prevent war crimes and other violations of humanitarian law. In certain circumstances, IHL holds commanders criminally liable for the crimes committed by their subordinates. [15]

Israel's duty to investigate alleged wrongdoing by its soldiers is reinforced by its obligations under international human rights law. Israel has signed and ratified a number of treaties that oblige it to investigate violations and bring perpetrators to justice. These treaty obligations together form an effective deterrent against unlawful killings, torture, and other serious human rights abuses. These are the obligations to:

  • Investigate serious human rights violations;
  • bring to justice and discipline and punish those responsible;
  • provide an effective remedy for the victims of human rights violations;
  • provide fair and adequate compensation to the victims and their relatives; and
  • establish the truth about what happened.

An "effective remedy" for a serious human rights violation requires a prompt, thorough, and effective investigation capable of determining whether criminal wrongdoing has occurred and, if so, identifying the person(s) responsible. An effective remedy also includes access by the victim or complainant to the investigatory procedure, and, when appropriate, the payment of compensation. Remedies must be effective in practice, not just in theory, with a strong enough element of public scrutiny to ensure true accountability. A key requirement is that those investigating an alleged crime must be effectively independent from those implicated in the events in question.

The Israeli military's system for investigating wrongdoing by Israeli soldiers fails all of these requirements. The system is opaque, cumbersome, and open to command pressure. Victims and their representatives have little practical access to the investigation process. Furthermore, it is not independent.As a result, only a handful of perpetrators have been brought to justice. The Knesset has passed legislation that effectively prevents almost all future compensation claims. The system does not provide justice or truth or meaningful reparation.

The most significant factor underlying impunity is the reluctance of the JAG's office to investigate incidents, even when witnesses are accessible and the breach of international law is clear. JAGs are able to receive complaints, or at their own initiative open a preliminary investigation in any case where, in their opinion, there is an offense that a military court is competent to address. [16]

The JAG's office has shown that there are some abuses that it will not tolerate, such as sexual violence, in which it has often quickly and effectively identified and located the perpetrators and brought proceedings against them. Action in these cases contrasted strongly with those involving death or serious injury of Palestinians, in which case the default response has been to whitewash or ignore possible abuses. Many such cases drop off the radar screen entirely. In two cases of severe beatings of Palestinians while in IDF custody detailed below, for instance, one of which resulted in the man's death, an IDF spokesman responded to Human Rights Watch inquiries saying, "The incident is unknown to us."

Another factor is the practical inability of most victims, i.e. Palestinians living in the OccupiedPalestinianTerritories, to initiate a complaint. When the IDF declines or refuses to investigate, there are no alternative forms of accountability. The West Bank and Gaza Strip are ruled under military law: Palestinians cannot seek prosecution of Israelis in Israeli military courts, or in the courts administered by the Palestinian Authority. In theory, victims or their representatives can appeal a decision not to indict to the JAG and, if unsuccessful, to the High Court of Israel. None of the families interviewed by Human Rights Watch were aware of this option, which in any case would be limited to those with the financial resources and connections to obtain Israeli representation. Under prevailing conditions of strict closure, which sharply restrict freedom of movement in the OccupiedPalestinianTerritories and between the territories and Israel, Palestinians find it extremely difficult to have physical access to Israeli institutions.

In many other countries, other institutions have the power to investigate human rights abuses. Unlike Mexico or Northern Ireland, Israel has no national human rights institution to receive complaints of human rights violations. Unlike Turkey, Colombia, or the Russian Federation, Israel is not subject to the jurisdiction of a regional human rights court. Israel's ongoing problems of military, security service, and police impunity will continue to fester until Israel chooses to strengthen its own accountability mechanisms.

The IDF has argued that investigating civilian deaths would harm the special nature of combat operations, and that only "exceptional" cases should be pursued, without indicating what the criteria would be. While it is true that not all deaths or injuries of civilians need trigger an independent investigation, the IDF's position cannot be reconciled with Israel's obligations under the international human rights and humanitarian law treaties that it has ratified. There are clearly established standards for determining whether particular actions have violated IHL in situations of armed conflict or constitute unlawful use of force in policing situations. The IDF should adhere to those standards.

The IDF has also maintained that armies elsewhere facing similar levels of hostilities do not carry out such investigations, sometimes citing U.S. practices in Iraq and Afghanistan, and has argued that the practical difficulties of investigating civilian deaths in the OccupiedPalestinianTerritories are simply too much for the system to bear.

In fact, the U.S. does not itself follow a "best practices" approach, with consequences in Iraq that are similar to those of Israel in the occupied West Bank and Gaza Strip. [17] There are, however, other positive examples. In the last fifteen years, countries such as Britain, Canada, and Belgium have reformed their military justice systems and introduced external accountability mechanisms. While those countries did not face armed conflict situations, their relevance should not be dismissed out of hand, because they do include, for instance, British military and police engagement in the Northern Ireland conflict.There is, moreover, an emerging consensus in international law that military justice should not be used to try military personnel in cases where civilians are victims, and that military justice systems should investigate only offences that are strictly military in nature. [18] The challenge for Israel is to ensure that its practices evolve to meet international standards and benefit from good practice elsewhere.

Apart from emerging standards, though, Israel's existing obligations are clear. If lethal force is used in situations of armed hostilities, Israeli forces must distinguish at all times between civilians and combatants, never direct attacks at a civilian population or individual civilians, and refrain from attacks that indiscriminately harm civilians. Israel has an obligation to conduct independent and impartial investigations in all cases involving prima facie evidence or credible allegations that troops violated these principles. When performing law enforcement functions, Israeli forces should be provided with the equipment and training necessary for this purpose and should not use firearms except when strictly necessary to defend themselves or others against the imminent threat of death or serious injury, and then only to the extent necessary to avert the actual danger faced. Curfew enforcement and control of demonstrations, for instance, should comply with law enforcement standards, and rules of engagement should be changed to reflect this. Deaths and serious injuries to civilians in these circumstances, when there is not a situation of active armed hostilities, should always be investigated. When the circumstances of a death or serious injury are unclear, the authorities should err on the side of investigating, with the objective of providing the greatest possible protection to the civilian population.

Conducting serious investigations can be difficult in circumstances of military occupation. Every Israeli official interviewed by Human Rights Watch emphasized the difficulty of obtaining witness testimony. Undoubtedly many witnesses are reluctant to cooperate with IDF investigations, for reasons ranging from fear of retribution to cynicism about the intentions and effectiveness of the investigators. Yet, as the cases reviewed in this report show, there are many cases in which IDF investigators simply do not attempt to contact witnesses to abuse, even when they are readily available.

There is much the Israeli authorities can do to improve the accountability of their armed forces for arbitrary killings and other serious human rights abuses against civilians. The government of Israel should:

  • Establish an independent body to receive and investigate complaints of serious human rights abuses committed by IDF soldiers and the agents of the Israel Security Service (Shin Bet).
  • Ensure that international norms are reflected in the operational and training manuals of the Military Police.
  • Publicize widely information on how to file complaints, including in the Hebrew and Arabic media and on the internet.
  • Ensure that when a complaint is not upheld after an investigation, the complainant is given a reasoned decision in writing, in his or her own language, which sets out the evidence as well as the investigative findings.
  • Establish clear guidelines and procedures for all individuals involved in organizing and obtaining witness testimony of individuals residing in Area A, which is under Palestinian Authority jurisdiction [19] ; and
  • Compensate all individuals who have suffered harm as a result of unlawful or criminal behavior by state agents and amend current laws that make such compensation effectively inaccessible or unavailable to victims. [20]

These and other changes are practical, possible, and necessary if Israel wishes to develop a justice system that effectively counters the impunity now granted to its security forces.

[1] Amos Harel, "Soldier who fired at unarmed Palestinian sentenced to 20 months in prison," Ha'aretz, May 18, 2005 [online]. According to the statement on the IDF website, the maximum prison sentence for inflicting "severe intentional harm" is twenty years ("IDF Soldier Convicted in Rafah Incident," available at www1.idf.il/DOVER/site/mainpage.asp?si=EN&id=7&clr=1&docid=39891.EN).

[2] Amos Harel and Arnon Regular, "Beit Latakia boys killed in IDF ambush, Palestinians claim," Ha'aretz, May 20, 2005 [online]. Harel and Regular wrote in conclusion: "The Beit Lakia incident is not unusual. Every day, soldiers and border police officers operate in some 15 villages near this section of the separation fence, sometimes without either crowd control equipment or clear rules of engagement. Since work on that section of the fence began, at least 10 Palestinians have been killed during protests against it, including eight children. Dozens of others have been injured, some by live fire."

[3] Joel Greenberg, "Israel suspends officer in killings of 2 Palestinian teens," Chicago Tribune, May 6, 2005 [online].

[4] IDF Official Website, "Investigation into the incident in which a 13-year-old girl was killed near an outpost on the Israeli-Egyptian border," October 15, 2004, available at http://www1.idf.il/DOVER/site/mainpage.asp?clr=1&sl=EN&id=7&docid=34453.

[5] A portion of the transcript of the radio communication appeared in the May 2005 issue of Harper's Magazine, p.19.

[6] The charges were: two counts of illegal use of weapons, obstructing justice, unbecoming behavior, and the improper use of authority that endangered others (Margot Dudekevitch, "Officer indicted for killing girl,"The Jerusalem Post, November 23, 2004). Ha'aretz reported in March that "the trial seems to be more focused on the Military Police's investigation and the Judge Advocate General's handling of the case than on R.'s behavior. And irrespective of how the judges rule on whether R. did use his weapon illegally, did try to obstruct justice and other behavior unbecoming an officer, the case has already been very unflattering to the MPs and the JAG officers." See, Amos Harel, "Case of Capt. R casts a shadow over the Military Police," Ha'aretz,March 21, 2005 [online].

[7] The al-Hams family and the Public Committee against Torture in Israel (PCATI) petitioned Israel's High Court of Justice in January requesting that the investigation be turned over to civilian authorities, and that it also address command responsibility for open-fire orders. In February the court declined to halt the military trial; the next hearing on the petition is scheduled for October 2005.

[8] The IDF does not appear to keep statistics on the number of Palestinian civilians killed but several Israeli and Palestinian NGOs have attempted to calculate the number. The figures vary depending on methodology, access to victims and witnesses, and other factors. According to the Israeli human rights organization B'Tselem, between the beginning of the intifada and the end of November 2004, 3,040 Palestinians were killed by Israeli security forces, including 606 children, in the OccupiedPalestinianTerritories. According to their investigations at least 1,661 of those killed (including 531 children under the age of 18) were not involved in hostilities when they were killed. B'Tselem has not been able to determine whether an additional 550 Palestinians (including 31 children) participated in hostilities.According to the PalestinianCenter for Human Rights, Israeli forces have killed 2,191 Palestinian civilians in the OccupiedPalestinianTerritories between the beginning of the intifada and April 2004 (including 493 children under the age of 17). The most detailed and up-to-date statistics are those of the Palestine Red Crescent Society, which put the number of deaths of children under eignteen at 612 through the end of October 2004.

[9] Response of the IDF Spokesperson to Human Rights Watch inquiry, with a cover letter from Maj. Sam Wiedermann, May 10, 2004. The IDF response indicated that indictments had been issued in sixteen of these cases but provided no details; nor did the response indicate how many of the seventy-four investigated shooting incidents had resulted in deaths or injuries.

[10] On February 28, 2005, in an email to Jaron Pazi, Head of International Organizations Section, IDF Spokesperson Office, Human Rights Watch asked for an update on the cases mentioned in this report as well as an update in the total number of indictments, convictions and sentences of IDF soldiers for killing or serious injury of Palestinians during the current intifada.Human Rights Watch followed up this request with several phone calls to the IDF Spokesperson Office, but as of early June 2005 no new or additional information had been provided.

B'Tselem told Human Rights Watch on May 22, 2005 that as of that date a total of 108 investigations had been opened into cases involving deaths and injuries to Palestinians, resulting in nineteen indictments and six convictions- two for manslaughter, two for causing grave harm, and two for illegal use of a weapon (Human Rights Watch interview with Ronen Schnayderman, Jerusalem, May 19, 2005).

[11] Captain Koretski was sentenced on May 3, 2004, to two months of imprisonment, four months of "military tasks," and six months probation for the October 5, 2002 killing. Koretski was also demoted to the rank of first lieutenant. See, Amos Harel, "IDF Captain Jailed for Death by Negligence of Palestinian Teen," Ha'aretz,May 5, 2004 [online].

[12] The details of the six convictions mentioned here (two for negligent killing, two for severe intentional injury, and two for unlawful use of a weapon) were gathered from media reports and confirmed by B'Tselem on May 22, 2005.

[13] Even so, the IDF's investigative mechanisms for dealing with accidents that kill IDF soldiers have also come under fire within the military. See Amos Harel, "Accidents will happen," Ha'aretz,November 12, 2004 [online]. Harel writes that over the past two years a team of reserve battalion commanders "worked on formulating a new proposal for investigating accidents. The reserve officers came to the conclusion that the IDF lacks a professional body with the requisite knowledge and experience in investigating accidents that occur on land and sea.... In addition, there is great ignorance among officers and soldiers regarding the various investigative proceduresand the authority of each, as well as the rights of those under investigation The reserve battalion commanders expressed concern that a continuation of the current system might lead to transferring the investigation of accidents out of the hands of the IDF."

[14] See, Human Rights Watch [Middle East Watch], The Israeli Army and the Intifada: Policies that Contribute to the Killings (August 1990), pp. 64-159. For a detailed examination of one investigation in this period, see, John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture (New York: Alfred A. Knopf, Inc., 2000), chapters 2, 6, 10, and 14.

[15] Under the doctrine of command responsibility, a superior can share culpability for crimes committed by subordinates if the superior ordered the crime to be committed, if the superior knew or had reason to know that a crime was about to be committed but failed to take necessary and reasonable measures to prevent it, or if the superior knew or had reason to know that the crime had been committed and failed to take necessary and reasonable measures to punish the perpetrators.

[16] Article 178 (4), Military Justice Law.

[17] See Human Rights Watch, Hearts and Minds: Post-war Civilian Deaths in Baghdad Caused by U.S. Forces (October 2003), available at http://www.hrw.org/reports/2003/iraq1003/index.htm.

[18] See below, "What makes a good investigation?"

[19] Under the Oslo Accords the West Bank and Gaza were divided into three areas: Area A, under full Palestinian control; Area B, under Israeli military control and Palestinian civil control; and Area C, under full Israeli control.Area A comprises major Palestinian population centers outside East Jerusalem and amounts to approximately 18% of the West Bank.

[20] These recommendations are consistent with Human Rights Watch policy for all victims of abuse regardless of the identity of the perpetrator.