Accountability for human rights violations is a crucial element of the rule of law. It is critical both for the individuals who have been harmed – in that they see those who have harmed them brought to justice – and for the public, since an effective system produces deterrence and may prevent the recurrence of future violations. Therefore, establishing legal liability for human rights violations and seeking accountability for them are at the core of what human rights organizations do, both in Israel and abroad. It is also the reason that international law and domestic legal systems require countries to adopt the necessary criminal proceedings –i.e., to effectively investigate suspected breaches of human rights and prosecute those responsible – and civil measures, in the form of compensating individuals for the harm they suffered.
Even though this is an issue of fundamental importance, Israel evades its responsibilities in matters concerning the actions of its security forces in the Occupied Territories and has instead set up alternative systems that merely create a semblance of law enforcement – both in criminal law and civil law. As a result, those responsible for harming Palestinians go unpunished, and the victims receive no compensation for the harm they suffer. The few, isolated exceptions serve only to amplify the illusion that the law enforcement systems in place are functioning properly.
Israel’s policy on accountability evinces its profound disregard for the lives, physical wellbeing and property of Palestinians. The state has also made it clear that, for its part, it bears no responsibility for the consequences of its control over the Palestinian population, neither as the occupying power in the West Bank nor an external entity exerting control over the Gaza Strip. Israel’s powers as ruler, which it is quick to enforce when it serves its own purposes, vanish into thin air when it has to answer for its actions.
Absence of Accountability – Criminal Justice
The military law enforcement system is supposed to handle complaints filed against soldiers for harm to Palestinians, including instances of violence and gunfire that resulted in injury or death. Such harm is inherent to the occupation. The role of the military law enforcement system has been narrowly defined from the outset: to investigate only specific, individual incidents in which soldiers are suspected of breaching orders or directives. The system investigates neither the orders themselves nor the responsibility of those who issue them or determine the policy.
Investigations by the Military Police Investigation Unit (MPIU) are conducted negligently, in a manner that precludes investigators from getting at the truth. Almost no effort is made during the investigation to collect external evidence, with the system citing as an excuse difficulties of which it has been aware for years and which it has made no attempt to resolve. Investigations rely almost exclusively on statements collected from soldiers and Palestinians. Nevertheless, despite the critical role statements play in the investigation, MPIU investigators are hard put to collect them, and they are often obtained only months after the incident. Worse still, at witness statement interviews, investigators function more like stenographers taking dictation than staff tasked with uncovering the truth. This is the case even when soldiers’ statements are found to contradict the accounts given by other soldiers or by the complainants.
The investigation file is transferred to the Military Advocacy for Operational Affairs, which is guided by considerations that almost inevitably dictate closing the file with no further action. Many cases are closed for “absence of guilt”, since the MAG Corps simply assumes that the accounts given by soldiers suspected of committing an offense are reliable – usually with no supporting evidence. In addition, the MAG Corps – which accompanies the investigations from the very start and oversees them – has done nothing to improve or make the investigations more rigorous, instead finding the lax MPIU investigations sufficient for making its decisions. Under these circumstances, the fact that many cases are closed for lack of evidence is no surprise and says more about the MAG Crops’ policy than about the particular case.
The military law enforcement system also draws legitimacy from the ostensible existence of civilian oversight in the form of the Attorney General and the Supreme Court, institutions tasked with overseeing the work of the MAG, who wields extensive authorities, as well as the work of the MAG Corps as a whole. However, the Attorney General has elected to delegate most of his powers to the MAG and refrains from intervening in his decisions.
Absence of Accountability – Civil Justice
Israel has managed to secure for itself a nearly blanket exemption from the obligation to pay compensation to Palestinians who it harmed. The state does not offer Palestinians harmed by its security forces a genuine opportunity to file for damages in Israeli courts, offering them no more than the illusion of being able to do so. By broadening the legal definition of what constitutes “warfare activity” and inclusive construal of this term by the courts, on the one hand, and introducing a series of procedural and evidentiary restrictions in legislation and case law, on the other, Israel has rendered virtually nonexistent the chances of Palestinian plaintiffs getting compensation for the harm they suffered.
Paying compensation to persons who have suffered injury to themselves or their property is not an act of charity – it is the state’s obligation under international law and basic moral decency. Not compensating Palestinian victims severely infringes upon their human rights as they are denied redress for violation of the basic rights to life, physical integrity and property. Denying the right to receive compensation is tantamount to a violation of the right in itself: the significance of human rights is not limited to merely having them entrenched in some law or international covenant. If no sanctions are enforced when human rights are breached, the rights become moot and the perpetrators have no incentive to institute a change in policy. Under Israeli law, the state is liable for damages that are a result of negligence, but it exempts the state from paying compensation for harm caused during “warfare activity”. This exemption assumes that warfare entails risk and damages that are substantially different than those of everyday circumstances. As combat necessarily involves conditions of pressure and uncertainty, tort law is not suited to incidents that take place during warfare.