How Israel's military investigates itself in cases of possible wrongdoing

TEL AVIV, Israel — On April 14, thousands of Palestinians, mostly women and children, started walking from southern Gaza to the northern part of the enclave after a rumor spread that Israel's military would allow women, children and older men safe passage. But it was just a rumor.

Israeli soldiers fired on the crowds as they approached a checkpoint, killing five people and injuring nearly two dozen, according to an emergency worker and reporters who were there. Afterward, Israel's military said the incident was "under review."

But what does that mean?

"In general, not every incident and not every complaint are being investigated in a criminal manner," but rather in an operational manner, says Ziv Stahl, executive director of Yesh Din, an Israeli organization that offers legal protection to Palestinians.

Stahl says when Israel's military is accused of violating its own — or international — rules of conduct, an internal agency known as the Military Advocate General oversees the process. The agency begins by having its lawyers interview the personnel involved in the incident. Those interviews, says Stahl, are confidential and are not initially meant as criminal investigations, but as operational inquiries.

"The army provides them with privilege and the promise that this will not be open material for the criminal investigation, if opened," she explains. "So soldiers can talk freely about what happened."

And that's where the problem starts, says Stahl.

"The second thing is that it allows testimonies to be coordinated because soldiers are exposed to what others said," she says. "There is no evidence collection at that point in regard to the criminal offense, if there was one. So the orientation is more operational sometimes than criminal."

Israeli officials are concerned about a possible International Criminal Court investigation of government leaders over alleged Israeli war crimes in Gaza. The prospect of possible arrest warrants for Israeli leaders is shining a spotlight on how Israel's military investigates personnel accused of violating the military's own standards of wartime conduct.

Each year, the Israel Defense Forces receives hundreds of complaints of wrongdoing. In the past, these have usually focused on its soldiers deployed in the occupied West Bank. But since the start of the war with Hamas last October, the complaints have ranged from soldiers firing on unarmed Palestinian refugees to the April 1 incident in which seven aid workers were killed when Israeli drones fired on a convoy belonging to World Central Kitchen.

According to human rights experts in Israel, the country's military has shown a lack of transparency and will to investigate its own soldiers. Stahl emphasizes that some of the biggest problems come during the first phase of internal investigations within Israel's military.

One of her organization's most pressing concerns is how long the investigation process can take — often more than a year, sometimes much longer. "So by the time there might be a decision to try to open an investigation, memory is not that good, evidence [is] not there," she says.

Additionally, the alleged victims in these investigations are often not interviewed until late in the process, says Israeli legal expert Smadar Ben-Natan, who teaches at the University of Washington. "Testimony of the victim, many times, is the first thing we think about as opening an investigation," explains Ben-Natan. "And here it's kind of the other way around: They typically first hear what the military forces have to say and only then get access to some of the victims' testimony."

Ben-Natan says that from a legal perspective, when you add up all these elements from how Israel's military conducts investigations into its own conduct, it's hard not to reach one conclusion: "I think that experience has shown for many, many years by now that many of these investigations are not fair investigations."

In a response to a list of detailed questions from NPR, the Israel Defense Forces sent a general statement that reads: "The IDF operates according to the law, and in so doing is obligated to thoroughly examine any claim of violation of the law by its soldiers. Each complaint is examined on its merits, including through a criminal investigation if necessary."

But data from Israel's military at the end of 2022 that NPR reviewed shows that complaints filed with the military rarely lead anywhere.

Among the 1,260 complaints regarding Israeli soldiers harming Palestinians and their property between 2017 and 2021, only 11 resulted in indictments — fewer than 1% of all complaints.

Despite this record, the Israeli human rights group B'Tselem was one of many that would work with Israel's military to collect evidence in its investigations, says B'Tselem spokesperson Sarit Michaeli. "We would reach out to witnesses. We would refer the witnesses to the military police," says Michaeli. "My colleagues would spend hours coordinating meetings between witnesses and the military police for them to have their testimony taken. Sometimes we would take evidence and refer it."

After years of collecting evidence to assist the IDF in its investigations, though, Michaeli says B'Tselem rarely saw any of its cases move past the initial investigative stage. "We did that for many years and ultimately reached the conclusion that it was pointless," says Michaeli, "that regardless of what we did, there was always the same result: no accountability."

Michaeli says B'Tselem stopped referring cases to Israel's military altogether in 2016.

"We reached the conclusion that continuing to refer cases to the Israeli investigative bodies is not only counterproductive because it does not obtain any real accountability, but it also gives the veneer of a functioning system," she says.

B'Tselem, says Michaeli, continues to collect evidence when Israeli soldiers kill or injure Palestinians, but instead of referring the evidence to Israel's military, the group now publicizes it on social media and through the free press. Michaeli says there is another way to seek justice, though.

"If the Israeli security forces' investigative mechanisms fail to operate in a way that adheres to international standards, there are international mechanisms," she says.

Michaeli says the International Criminal Court should step in and investigate allegations of Israel's large-scale violations. In fact, there is evidence that the ICC is investigating Israel's military campaign in Gaza, and in recent weeks, Israeli officials have been increasingly concerned that the body will issue arrest warrants for Israeli military and political leaders.

While the ICC has not confirmed action against Israel's leadership, Israeli Prime Minister Benjamin Netanyahu has called the prospect of arrest warrants for Israeli leaders an "outrage of historic proportions."

But as Michaeli sees it, "The sad and very unfortunate truth is that there are no real, functioning, honest, decent mechanisms to hold Israeli perpetrators accountable. If we continue to function in a way that legitimizes the internal Israeli mechanisms, we're doing a disservice both to victims and their families and also to the broad goal of protecting human rights."

Alon Avital contributed to this report in Tel Aviv, Israel.

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