Ali Waked<br />
September 14, 2010 - 12:00am,7340,L-3953759,00.html

he Israel Defense Forces policy of refraining from thoroughly investigating the wrongful deaths of Palestinian civilians absolved IDF soldiers from such action even when criminal charges should be brought against them, B'Tselem said.

The conclusion is at the core of a new report by the human rights group, released Tuesday, which said that soldiers who kill Palestinian civilians are rarely prosecuted, even when circumstances clearly indicate foul play.

B'Tselem based its report on the Judge Advocate General's actions over the past four years, saying there was a clear pattern of avoiding launching full scale Military Police investigations in such cases.

The reports lists 148 cases detailing 288 Palestinian civilian deaths, between 2006 and 2009 – excluding Operation Cast Lead – which it asked the military to investigate.

B'Tselem claims that during the period in question, the IDF killed 1,510 Palestinians, 617 of them non-combatants; but according to the group, out of its 148 requests only 22 – less then 15% – were investigated, 29 cases were closed, 16 cases are pending decision on prosecution, and the rest are still pending decision on further review.

Of he 22 cases investigates, two cases were closed, three are still investigated, four are pending completion, and 13 are pending decision on prosecution.

B'Tselem claims that JAG decided to closed cases even when there was basis to assume foul play, adding that its analysis indicated that the Military Prosecution prefers to base its decision in IDF inquests and soldiers testimonies, while disregarding eye witness reports and other evidence, which contradict the soldiers' accounts.

'Armed conflict' ruling obsolete

The military's policy of not investigating such cases, states the report, is based on an adjudication made during the days of the al-Aqsa Intifada, rendering the territories an "armed conflict" area, and on the misinterpretation of International Law, which supposedly allows the IDF to refrain from such investigations.

B'Tselem warned that such policy gives soldiers de facto immunity, and in applying it, the Israeli military "fails to do its duty to spare no effort in minimizing civilian casualties." Moreover, the report claims this policy "allows soldiers to violate the law and encourages them to act in a trigger-happy manner, while blatantly disregarding human lives."

The report recommends the legal definition of "armed conflict" be rescinded, saying it has brought on a significant decline in Military Police probes into wrongful death cases.

It further recommends the IDF adhere to Attorney General's Office guidelines as to the timely investigation and prosecution of cases, saying that "while a 2005 High Court ruling states a timeline for such investigations, it did not state a timeline for their processing and prosecution and therefore they are sometimes delayed for months, or even years, which hinders the effectiveness of actions taken."

B'Tselem slams the state's stance, which says it must investigate only cases where soldiers clearly meant to hurt civilians, saying the claim is devoid any legal basis – be it in Israeli or International Law: "The military's duty does not start and end with barring deliberate harm to civilians, which is a war crime.

"It must also ensure that soldiers and officers follow both military orders and the letter of the law, which bar not only shooting with the intent to kill, but also a slew of acts, including negligent homicide and lesser offenses."

In October 2003, B'Tselem and the Association for Civil Rights in Israel appealed to the High Court against the JAG prosecution policy.

In its response, the State told the court that "the fact that a civilian is hurts in conflict does not prove a crime has been committed or that the soldiers exhibited criminal intent."

The case is still pending ruling, despite the fact that the last hearing took place in May 2006.

The IDF Spokesman's Unit issued the following the release of the report: "Most of the issues and claims are included in a petition filed by the organization to the High Court of Justice.

"The State has responded to these claims in a comprehensive manner and it is only appropriate that the group await a ruling on the matter."

The statement stressed that the IDF has already informed B'Tselem of its investigations as to some of the claims made in the report.


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