The existing apparatus is incapable of investigating policy issues or breaches of law by senior ranking military officials, and fails to promote accountability among those responsible. The figures show that the Israeli authorities are unwilling to investigate human rights violations committed by security forces against Palestinians. The failure of the Government of Israel to implement the Turkel Commission’s recommendations, more than a year and a half after their publication, only reinforces this conclusion.

B’Tselem has decided to break with its previous practice concerning military operations in Gaza and reject a request made by the Military Advocate for Operational Matters Lt. Col. Ronen Hirsch to provide the military with information regarding "irregular" incidents that occurred during Operation Protective Edge. B’Tselem has changed its approach due to the poor track record of MAG Corps investigations so far.

B’Tselem Executive Director Hagai El-Ad said: "B’Tselem believes it is crucial to investigate the directives and orders given to the forces by top political officials and military commanders. This is especially true of suspicions regarding unlawful policies concerning attacks, which received prior approval from the MAG Corps. Common sense has it that a body cannot investigate itself. Yet, again, the military will be investigating its own conduct in Operation Protective Edge; again, these investigations will not be supervised by anyone outside the military. It would be a welcome change if, instead of the existing whitewashing mechanisms, an independent apparatus were established to investigate suspected violations of international humanitarian law. Were such a mechanism established with the real aim of uncovering the truth and taking measures against those responsible – we would do our best to professionally assist its work."

Newly published Yesh Din figures on investigations of suspected offenses committed against Palestinians by soldiers show a marked drop in the rate of indictments compared to previous years. Yesh Din calls for an urgent and comprehensive reform of the investigative apparatus and for legislation that treats and punishes war crimes as such. These measures are crucial for ensuring professional, effective investigations and the accountability of those responsible.

Neta Patrick, Executive Director of Yesh Din: "The IDF’s investigative system has failed. The figures we are publishing must, especially now, raise questions over Israel’s lack of interest in conducting serious professional investigations. Years of research and monitoring of the military law enforcement system by Yesh Din have proven that the mechanisms in place cannot carry out effective investigations as a matter of course, not to mention during wartime. Every year, we caution against the sorry state of the investigation system. However, it appears that Israel refuses to deal with these structural failings or take minimal steps to correct them, despite harsh criticism voiced by public commissions and by civil society organizations. The inescapable conclusion is that the Government of Israel is not willing to investigate harm caused to Palestinians."

Figures: Failed investigative apparatus and investigations that do not achieve accountability

B’Tselem figures on previous Israeli military operations in Gaza demonstrate the failure of the current investigative apparatus to investigate wartime incidents:

• Following Operation Cast Lead (2009), the military looked into 400 incidents of suspected breaches of the law during the operation. These led to at least 52 investigations by the Military Police Investigation Unit (MPIU, or MPCID). Only three investigations ended with indictments, and the harshest sentence was given to a soldier who stole a credit card.
• The results of investigations following Operation Pillar of Defense (2012) were essentially similar. According to the MAG Corps, more than 80 incidents were examined; as of April 2013, the MAG had decided that 65 of them did not warrant a criminal investigation. B’Tselem does not know of a single criminal investigation opened into an incident that occurred during the operation.

Yesh Din figures, collected over several years of monitoring the outcomes of investigations into alleged offenses by soldiers against Palestinians in the West Bank and the Gaza Strip, speak to the IDF’s failure to investigate incidents that occur outside of war, and show a marked drop in the number of indictments served compared to previous years:

• Only 2.2% of investigations opened into suspected criminal offenses committed by soldiers against Palestinians and their property in 2010-2013 ended with indictments. Over the last four years, the number of indictments dropped by half. This period of time covers the investigations of both Operation Cast Lead and Operation Pillar of Defense.
• In 2013, the MPIU opened 199 investigations into incidents of harm to Palestinians; in 84% of these cases, Palestinians were the victims of violence (8% of the cases resulted in death and 76% in injury). Only six of these cases ended with indictments against the implicated soldiers.
• The figures on complaints to the MPIU demonstrate just how low the odds are that a Palestinian’s complaint would end in a soldier’s indictment: only 1.4% of all complaints to the MPIU in 2010-2013 led to an indictment (a complaint does not require the MPIU to open an investigation).

The failures in the investigation mechanism

B’Tselem outlined three problems inherent to the system currently in place for investigating combat-related incidents:

• The investigative apparatus is not structured to investigate top political and military officials responsible for policy and directives.
• The MAG has a dual role: He gives legal counsel to the military before and during combat, yet is responsible for deciding on indicting those who violated the law. Where unlawful orders were issued following the MAG’s legal counsel, there is an inherent conflict of interests.
• MPIU investigations focus solely on the soldier in the field. They are opened late, and the operational inquiry conducted before them allows soldiers to compare and alter their accounts of what happened; moreover, investigators often do not have access to the scene of the incident.

Yesh Din’s years of monitoring Israel’s military investigation and prosecution mechanisms have led the organization to the conclusion that military law enforcement system is incapable of conducting serious investigations due to severe structural issues:

• MPIU investigations are marked by low quality and lack of professionalism: basic investigative steps are not taken and foot-dragging and delays are common.
• Delays in reaching a decision whether to open a criminal investigation: in 2013, 75 investigations were opened following complaints filed in 2012 – in other words, almost 40% of the investigations were opened months after the incident occurred.
• Operational inquiries, which must be concluded before the Military Advocate General (MAG) decides whether or not to launch a criminal investigation, are a major reason for these delays. In addition to the potential harm caused by delays, as the inquiries serve operational and not criminal investigative purposes, they may compromise potential criminal investigations.
• Inaccessibility due to the absence of MPIU bases within the West Bank: in 2013, the MPIU received 239 complaints regarding suspected criminal offenses against Palestinians; only six were filed directly by Palestinians; the rest were filed by various mediators.
• The fact that war crimes are not prohibited or punishable by law in Israel makes it impossible to impose appropriately severe sanctions.
• The absence of command responsibility in Israeli criminal law: In Israel, it is impossible to try commanders or civilians for war crimes committed by their subordinates, unless they personally gave orders to commit them.
• The MAG Corps often investigates actions, which it had a part in initiating or approving. This dual role casts doubt on the independence of the investigating body.

B’Tselem and Yesh Din's conclusions, based on the findings

B’Tselem has decided to reject the request made the Military Advocate for Operation Matters Lt. Col. Ronen Hirsch to provide the military with information regarding "irregular" incidents that occurred during Operation Protective Edge. Hagai El-Ad, Executive Director of B’Tselem, wrote to Hirsch that: "B'Tselem has decided not to provide you with such information and avoid assisting the Military Advocate General (MAG) Corps in any matter concerning such investigations, as investigations led by the MAG Corps do not promote accountability among those responsible for the violations… This problem is certainly not exclusive to the MAG Corps: it results from structural issues affecting the Israeli law enforcement system, of which the MAG Corps is a part, when it comes to investigating suspected violations of international humanitarian law."

In his response to Lt. Col. Hirsch, El-Ad wrote that the harm caused to civilians in Operation Protective Edge was massive. B'Tselem's initial investigation indicates that some 40% of the Palestinians killed in the operation were minors, women, and men over the age of 60. In addition, thousands of homes were destroyed and hundreds of thousands of people were uprooted from their homes. This reality is, in part, the direct result of directives given to the military, some of which raise grave suspicion of unlawfulness. One such directive was to attack the homes of operatives in Hamas and other organizations as though they were legitimate military targets. Another was to consider vast areas where residents were given ineffective warnings to leave their homes as "sterile" areas that may be bombed as though they were legitimate military targets. A third aspect is the large number of incidents in which many civilians were killed in a single incident – more than in previous operations – in terms of both the number of casualties in each incident and the overall number of such instances.

B’Tselem does not wish to play a role in the so-called investigation apparatus institutionalized by the authorities. Based on past experience, we can only regretfully say that Israeli law enforcement authorities are unable and unwilling to investigate allegations of breaches of international humanitarian law committed during fighting in Gaza. Should the existing whitewashing mechanism be replaced with an independent investigative body, we would gladly cooperate with it.

Yesh Din calls for appropriate legislation in Israeli law that will prohibit war crimes and will include specific sanctions that stem from the special gravity of offences considered to be war crimes by the family of nations, as was also recommended by the Turkel report.

Yesh Din believes that the State of Israel is unwilling to investigate harm to Palestinians, and that a system that has difficulties investigating during "routine" times, in regard to offenses committed outside of hostilities, would have a much harder time investigating offenses committed during combat. Therefore, the conclusion is that the investigative mechanisms are in need of fundamental reform in order to become an independent, effective apparatus that is able to uncover the truth and bring those responsible to justice.