Performing investigations or investigations as performance?

By Hagai El-Ad, CEO of B’Tselem
 
Accountability is at the core of protecting human rights. For without it, especially during times of war and military conflict, how can one hope for justice? What recourse do we have against abuses of power or violations of International Humanitarian Law (IHL)?
This is why so much of the work of the organization I head, B’Tselem, in the occupied Palestinian Territories, focuses on identifying violations, collecting data and testimonies, and bringing them to the attention of the relevant investigative bodies, primarily the IDF Military Advocate General (MAG), in order to achieve what is our moral and professional responsibility, what victims of human rights violations deserve: justice for past abuses, deterrence against future misdeeds. 
The pursuit of accountability has seen its worst failures in recent years in the context of the repeated cycles of violence in and around The Gaza Strip. On all relevant sides, the picture is grim.
Hamas and other Palestinian armed groups commit blatant violations of IHL but have never been made to suffer the legal consequences. This clearly contributes to the repetition of these violations, including in the most recent round of conflict this past summer.
With regard to Israel, serious questions have been raised as to the legality of the army’s conduct during the recent offensive known as “operation Protective Edge.” During the operation, over 2,100 Palestinians were killed, at least half, even Israel concedes, did not participate in the hostilities. Thousands of homes were destroyed and hundreds of thousands of people were displaced.
With this paramount destruction in mind, and in light of B’Tselem’s long term experience and research, we are convinced that the current investigative apparatus simply cannot – indeed, won’t – guarantee accountability.
Major systemic flaws beset the current Israeli system for domestic investigations of potential IHL violations during military operations. The major ones being that the system is not equipped to investigate senior officials and military commanders who made policy decisions that lead to the loss of hundreds of Palestinian lives. Nor does it make sense for the MAG – who was responsible for legally authorizing measures suspected of being unlawful – to be charged with retrospectively deciding whether to initiate a criminal investigation into his own conduct and that of his subordinates.
One major case in point is 2009’s “operation Cast Lead.” Then too, hundreds of incidents were examined by the army, over 50 led to criminal investigations. Eventually, out all this performance, of the three cases where criminal charges were brought, the harshest sentence was served by a soldier who stole a credit card from a home in Gaza. Hundreds of civilian casualties, thousands injured, tens of thousands homeless – and a single credit card.
A poor investigations-to-convictions ratio is not, in itself, proof that the entire system is constructed in order to deny accountability. Still, the extreme dissonance between the enormity of the questions and the bottom line – that credit card – should give us pause, especially considering the breadth of paperwork created through these “investigations”, and official statements explaining the motivation to go through all this.
Major General Danny Efroni, the current Chief MAG, expressed a common official view of the matter in his recent description of “a legal battle” that will be waged by Israel against “the [international] commission of inquiry already established … legal entities in Israel and abroad who seek to blame Israel, the IDF, and its soldiers with war crimes.” Granted, Efroni accepts that “During combat there may be irregular events and mishaps, that under such circumstances could also lead to tragic and undesirable consequences”, but his framing the discussion in these terms leaves out the obligation to investigate potential violations of IHL, to take responsibility, to ensure justice is done. Keeping the matter in the realm of public relations and Israel’s international standing brings us dangerously close to a void of accountability, where the MAG’s work is celebrated as a tool to “shield” possible Israeli violations from scrutiny.
And now, a short time after this summer’s offensive, this theatre of the absurd is on the road once again. The military has appointed senior officers to look at dozens of incidents, several criminal investigations have been opened. Others might follow. The MAG’s office has asked B’Tselem to refer “irregular” cases to its attention, as we have done after Cast Lead and other operations.
After serious consideration, B’Tselem decided this time around to cast itself in a new role. As long as the shortcomings in the existing investigative mechanism remain, we will not participate in this renewed performance of MAG investigations.
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We have not given up on our quest for accountability, quite the contrary. But we have concluded that the most effective path towards it does not involve working with a system structured to evade responsibility. Calling this system’s bluff is our best chance to promote a change. What is urgently needed now is an investigation apparatus to seriously and objectively examine suspected violations of international humanitarian law during Operation Protective Edge. A sufficient mechanism would be professional, transparent, and independent – both of the military system and of the political establishment. Independent international observers in the investigation may greatly enhance the investigation’s credibility.
Such a mechanism, if established, will be met by B’Tselem’s best professional efforts and commitment to the truth. Until that day, we will share our findings with the public, online and through social media. A mechanism geared towards impunity will never deliver justice, and justice will not be served by playing a willing part in such a system.