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IV. Overview of the Military Justice System

Israel’s military justice system is based on Military Justice Law 5715-1955, and subsequent amendments (hereafter referred to as the MJL).⁹⁶ The law sets out the powers of the IDF’s chief legal officer, the Judge Advocate General, and the composition and powers of courts martial and appeals courts. It defines offences for which soldiers may be punished, including looting (Art. 74); illegal use of arms (Art. 85); negligence (Art. 124); obstructing a military policeman (Art. 126); non-compliance with orders (Arts. 123 and 133); and non-prevention of an offence (Art. 134). Soldiers do not bear criminal responsibility for non-compliance with an order “when the order given him is manifestly illegal” (Art. 125). In addition, soldiers may be charged with crimes under the Israeli penal code. Murder and manslaughter, for example, are not included in the MJL. Charges for these crimes would be brought under the penal code.

The law establishes four mechanisms to ensure accountability in cases of suspected wrongdoing: disciplinary proceedings; operational debriefings (also referred to by the Israel Defense Forces (IDF) as “operational investigations,” “field investigations,” and “military investigations”); special investigations, performed by a senior officer at the request of the chief of staff; and Military Police investigations, carried out by the Criminal Investigation Division of the Military Police.⁹⁷

Disciplinary Proceedings

As in every armed force, disciplinary proceedings are used by the IDF to punish soldiers quickly, for relatively minor infractions. Punishments handed out include warnings, confinement to camp, forfeiture of pay, reduction of rank, and detention for up to thirty-five days. The proceedings are administrative, not judicial. Those who conduct disciplinary proceedings frequently know the defendant and are not bound by the rules of evidence in addressing a complaint. Instead, the MJL stipulates that the disciplinary officer must “act in a manner he deems most effective to investigate complaints when MJL or other army orders do not instruct otherwise” (Art. 161). A recent deputy JAG described IDF disciplinary proceedings as “[b]eing the responsibility of commanders who have no legal training, and the rules of procedure as detached from the rules of procedure and evidence that are customarily applied in the courts.”⁹⁸

Complaints and penalties are not made public. It is unclear, in fact, whether the IDF conducts any oversight of the disciplinary proceedings that its members conduct. When Human Rights Watch asked the IDF for a summary of the numbers and kinds of disciplinary proceedings since 2000, an IDF spokesperson replied that “we do not possess statistics on the number of servicemen who were judged in disciplinary proceedings since the beginning of the incidents.”⁹⁹

Operational Debriefings

Operational debriefings, also referred to by the IDF as operational or field “investigations,” were incorporated into the Military Justice Law in 1997, reportedly to cope with the challenges to deaths and injuries during the Israeli occupation of southern Lebanon.¹⁰⁰ Article 539 (A) of the MJL describes operational debriefs as “a procedure held by the army, in the army” that is “conducted according to army orders and regulations.”¹⁰¹

Operational debriefings are intended to be part of the quality-control mechanism in which soldiers are supposed to review openly and fully the events of an operation with a superior officer of the same unit.¹⁰² According to attorney Michael Sfard, who petitioned the IDF to open a criminal investigation in the Brian Avery case (see below), “the purpose [of a field investigation] is exactly to see the situation through the eyes of the soldiers. The aim is not to uncover the truth or to find out what happened, but rather to see how the soldiers perceive and interpret the events.”¹⁰³ If an incident occurs in which the JAG suspects unlawful behavior, the JAG may ask to view the notes of the debriefing. If the debrief reveals criminal activity, the JAG may decide to open a criminal investigation into the event – but the debriefing cannot be disclosed or used as evidence in a trial. Instead, Military Police investigators must begin the investigation afresh.

A problem with the operational debriefing is that it is a device that serves a military purpose but cannot serve as a tool to investigate serious violations of international human rights or humanitarian law. In cases where IDF use of lethal force results in Palestinian civilian deaths, the operational debriefing requirement has the effect of delaying if not foreclosing the possibility of a proper impartial criminal investigation.

In a May 2002 meeting with Human Rights Watch, Col. Daniel Reisner, assistant military advocate general for international law and head of the IDF’s International Law Department, explained the operational debriefing in these terms:

We changed our policy on investigations in September 2000. There is no automatic criminal investigation for every allegation. Serious allegations always go to criminal investigation. The middle ground, it goes to the unit debrief, the report done after action. We want our soldiers to tell the truth not only for investigations, but also for operational purposes. Under article 539 (A) of the Military Justice Act the information provided in the operational debrief cannot be used in a court of law, cannot be released ever. But there is a loophole for war crimes. The chief military advocate can view the operational debrief and if he believes an investigation is warranted on the basis of what soldiers said in debriefing, then he can launch a criminal investigation. But he must have strong suspicion or fear, must consult, and he must start the investigation from scratch.¹⁰⁴

The words “debrief,” “debriefing,” “examination,” and “investigation” appear to be used interchangeably for the same procedure, which is not in fact an investigation at all but a review at the level of the military unit involved when operational mistakes are made or civilian casualties are reported. The debriefings are conducted by other soldiers from the same unit or line of command. Even if performed competently and professionally, they are in no way impartial or truly investigative. The Military Justice Law specifies that “operational investigations” are to be used “with respect to an incident that has taken place during the course of training or operational activity or with connection to them.”¹⁰⁵ In a February 2002 letter to the IDF commander in Gaza declining the commander’s request to close an investigation into a case where an IDF booby-trap bomb had killed five children, Maj. Gen. Finkelstein noted, “Today fact checking is done by operational debriefing, and only highly irregular cases are passed on to my examination, to decide about an MP investigation….” Finkelstein also wrote, “I have to note, sadly, that in no few instances…investigation reports passed on to us were, to say the least, insufficient and unprofessional.” He reassured the Gaza commander that “the opening of an MP investigation does not necessarily mean an indictment; the data presented above testifies to that.”¹⁰⁶ A detailed January 2004 article in the daily Yedioth Ahronoth stated that the law had been altered in the mid 1990s, and that all suspicious deaths during IDF operations outside of Israeli sovereign territory would be “investigated” via operational debriefings.¹⁰⁷

Despite intensive searching and requests to the Ministry of Justice and office of the IDF spokesperson, Human Rights Watch has been unable to learn of any specific guidelines or rules for conducting operational debriefings. In early 2002, a reserve officer said in a radio interview:

I know that sometime in the past we killed a pregnant woman or a man. I still don’t know if it was a woman or a man. The de-briefing only involved the troops who were there, and not the command echelon – the rank of company commander and above. You have to understand that since we reached the line [of confrontation], with all the incidents that have been taking place, de-briefings are non-existent. The de-briefing must be written and handled in an orderly manner, it must be conducted by the common echelon and not the forces who were involved in the incident. This does not happen. This does not happen, and the lessons are not being learned... .¹⁰⁸

Knesset members have also criticized the operational debriefs as compromised and superficial. The most serious flaw is also the most obvious: essentially, the debriefs depend on alleged perpetrators reporting their own crimes. These are not investigations. They are soldiers reporting to superiors about recent activity. Soldiers’ claims are taken at face value, and there is no checking mechanism.

The field inquiry, or “operational investigation,” has useful purposes, lawyer Sfard noted.

The officers know the area, what the dangers and risks are. They can explain the circumstances of the shooting and why they think it conforms to regulations or not. But the field inquiry turns up a lot of people saying it was not us, and the field inquiry has no tools to investigate and find out the truth. Only the Military Police can investigate…. While officers are experts in what is lawful circumstances, they are not experts in finding out what happened when soldiers say nothing happened.¹⁰⁹

Military Police/Criminal Investigations

If there is evidence that an IDF member has committed wrongdoing more severe than those regulated by disciplinary proceedings, then the JAG may order the Criminal Investigations Division (CID) of the Military Police to open a criminal investigation. The JAG is the IDF’s chief adviser on all legal questions, and supervises the enforcement of justice – including the appointment of military defense counsel and prosecutors. According to the Military Justice Law, the JAG must be a career military officer with at least six years of legal experience. He or she is appointed by the minister of defense upon the recommendation of the chief of the general staff (Art. 177). Both the JAG and the current chief military prosecutor during the period covered in this report were members of the JAG office during the first intifada.¹¹⁰

The JAG and the chief military prosecutor are the key decision-makers in deciding whether to open Military Police investigations. The JAG’s office is technically able to refer a case to the Military Police at its discretion, although it apparently also frequently consults with senior officers before doing so. ¹¹¹ In practice, the chief military prosecutor is the primary contact for submitting complaints and deciding whether an investigation should be opened.

After the JAG’s office refers a complaint to the Criminal Investigation Division of the Military Police, the police investigate. Files are referred back to the JAG office when the investigation is complete. The office then decides whether to close the file for lack of evidence, return it for further investigation, or issue an indictment. If an indictment is filed, the case proceeds to a court-martial. All army personnel below the rank of lieutenant-colonel (sigan aluf) are tried before a District Military Court (Art. 196). Those above the rank of lieutenant colonel are tried by a Special Military Court (Art. 197). Both the District and the Special Military Courts comprise three to five judges, the majority of whom have to be officers (Art. 201). Each bench must include at least one “military judge” and one “legal military judge” (Art. 202).¹¹² Decisions are taken by majority vote and need not be reasoned “unless the MJL prescribes otherwise” (Arts. 392-393).

Human Rights Watch asked how many of the court-martial proceedings since September 2000 had been made public, but did not receive a clear reply. The IDF Spokesperson’s Unit stated that “[i]n general, all court martials [sic] of IDF personnel charged with offences against a Palestinian resident of the Administered Territories or foreign citizens are held publicly, except in the rare cases where such a public hearing could jeopardize State security.”¹¹³

Once a district or special court-martial has decided upon a case, the decision can be appealed to the Military Court of Appeals. Until recently, the final decision of the Military Court of Appeals then had to be confirmed by the chief of general staff after consultation with the JAG. (Arts. 441-443).¹¹⁴ The chief of general staff could also choose to mitigate the penalty. Even when confirmed, a sentence may later be annulled, as happened in the Givati case in 1988.¹¹⁵ As of February 17, 2004, the IDF told Human Rights Watch, the chief of general staff had confirmed all sentences presented to him.¹¹⁶

Despite extensive research and a request to the IDF, Human Rights Watch was unable to obtain information on the regulations implementing the MJL or governing the Military Police during the conduct of their investigations. In contrast, U.S. army regulations for criminal investigations are unclassified and posted on the Internet.¹¹⁷

Victims or their legal representatives in theory can appeal decisions not to indict to the JAG and, if unsuccessful, to the High Court of Israel. None of the victims’ families interviewed by Human Rights Watch was aware of this possibility. Physicians for Human Rights - Israel told Human Rights Watch that it had taken several cases of alleged denial of medical treatment to the High Court. Despite obtaining court orders for the IDF to investigate, no investigation had been initiated. Hadas Ziv from Physicians for Human Rights – Israel described the process thus:

I think that their policy now is to evade you as far as possible, just to continue corresponding and corresponding, and the High Court can do nothing about time limits. They hope you will just forget about it. It’s a game of cat and mouse — classic. Every answer changes and gets nearer and nearer to the truth. You have to play your cards very closely. Finally they’ll have to answer a direct question, [and then] they’ll just have to delay.¹¹⁸

The Criminal Investigation Division of the Military Police

Israel’s Military Police have three main functions: traffic control, investigation and discipline of IDF personnel, and the staffing and organization of military prisons. They deal with issues ranging from crimes of property, sexual crimes, negligence, fraud, drug abuse, deaths of soldiers unrelated to military operations, training accidents, stolen arms, and car accidents. While part of the IDF, Military Police do not generally have experience in combat operations. Because of their duties and distance from combat, they are not widely popular among other IDF soldiers.

The Criminal Investigation Division (CID) of the Military Police is widely seen as its most elite unit. Its training includes the basic training common to every IDF conscript, a policing course, and a three-month course in investigative techniques. All personnel undertake either sergeant’s or officers’ training, as well as additional advanced training in subjects such as economic crimes or investigating suicides. CID units are staffed by professional Military Police and by reservists who usually served as investigators during their compulsory military service. Conscripts may choose to stay on as professional CID officers after their service is completed. By age twenty-two or twenty-three, it is possible that a CID investigator who has finished his or her compulsory service would command one of the CID’s nine bases.¹¹⁹ The current chief of the Military Police, Brigadier-General Micky Bar-El, is a former CID investigator. Human Rights Watch was told there are some 400-450 staff in the CID.¹²⁰

On July 13, 2003, three CID officers met with Human Rights Watch to discuss investigation procedures. In a power-point presentation, they described drug abuse, stolen weaponry, computer-related crime, and property crime as the CID’s main threats and risks, confirming that these “have been the main issues for the last three to four years.”¹²¹ When asked what proportion of their workload concerned cases in the Occupied Palestinian Territories, they told Human Rights Watch that “[i]nvestigations in the territories are about 10 percent of our entire investigatory workload. But the pressure is more than 10 percent, because everyone is interested.”¹²² In January 2004, the Israeli daily Yedioth Ahronoth reported an unnamed senior MP official as saying that a new base would be established solely to investigate “intifada-related incidents.”¹²³

In an interview in July 2003, Human Rights Watch asked how current investigations in the Occupied Palestinian Territories differed from those of the first intifada. The officers listed the recurrence of live gunfire, the arrival of complaints much later at the CID, and increased difficulties in locating the complainant.

Cases usually go to the JAG first. There are very few cases that get to us after a few days. When a commanding officer in the field sees something—for example, he sees the beating of a Palestinian prisoner on the way to work—at the JAG, it’s possible it goes [on] for weeks to months. We are still getting stuff from June/July 2002.¹²⁴

When Human Rights Watch asked how quickly the CID aspired to get to the scene after an incident, they replied, “[t]o get there within a day is still our goal.”¹²⁵

They also emphasized the difficulty of getting to the crime scene, particularly in areas of fighting. They cited resource limits, in particular a lack of translators and bullet-proof vehicles:

There is an overabundance of tasks versus limited resources. Yes, we have only one bulletproof vehicle. Our personnel have to move; it’s hard to locate documents and people. Sometimes it’s the presence of fighters and officers in the area, the inaccessibility of fighting areas. We have not received another [pause] more investigators. We have some reservists, but it is very tough.

There is a work overload, the inaccessibility to fighting areas, inability to preserve the crime scene. Gathering information is really the most difficult. The lack of debriefing in the field — who is there to speak to? If we do have the chance to go on time and do it, it would be much easier, but time works against us.¹²⁶

When the JAG instructs the Military Police to begin an operation, trainee investigators work under supervision of a more senior officer. CID officers meet monthly with the JAG to review files, and each case is reviewed by the base commander. When an investigation file is complete, Military Police officers do not formulate recommendations: they forward the file to the JAG, who decides whether to proceed with an indictment, send the file back for further investigation, or close the case for lack of evidence.

Special Investigations

The minister of defense and chief of the general staff are also able to appoint an officer or group of officers to investigate any matter. In practice, these “special investigations” are launched into particularly high profile cases. Like the operational debriefs, however, the material gathered in special investigations may not be used as evidence in court proceedings. Instead, the special investigator makes findings and recommends any further steps. As in the case of operational debriefs, no criminal investigation can be initiated until the special investigators’ work is complete. The chief military prosecutor told Human Rights Watch that these special investigations were very useful for getting the attention of senior officers.¹²⁷

In early September 2002, the defense minister ordered a special investigation into three separate incidents in which thirteen Palestinians were killed. They included the alleged execution of four laborers in the village of Bani Na`im on September 1; the killing of Ruwaida al-Hajin, her two sons and nephew by a flechette-laden tank shell while on their family property near Netzarim on August 28; and the death of four children on August 31 during an attempted assassination by the IDF in the village of Tubas. The panel found that the IDF was not at fault in any of the three incidents.¹²⁸