And time marches on

Abusive soldiers evade justice under the aegis of the slow procedures of the MPCID (Military Police Criminal Investigation Department) and the Military Prosecution, as well as some creative excuses

Several weeks ago, our attorney Emily Schaeffer received answers from the Military Advocate for Operational Affairs Unit (MAOA) regarding two appeals she submitted years ago on behalf of a Palestinian complainant, Ayman Abd AlMaqtsur Tabieh. In both cases, surprise surprise, the appeals were rejected. Both cases merit discussion, as they shed light on the way abusive soldiers evade punishment.

The first incident took place on November 3^rd, 2008, when Tabieh reached the Azoun Atma checkpoint, where he was attacked by a group of soldiers, led according to him by a Sergeant First Class Shay. The soldiers handcuffed him, blindfolded him with a gun cloth, and kept beating him. Tabieh’s testimony about the assault received a surprising supporting testimony – a soldier named Sivan also gave testimony about the soldiers attacking a Palestinian.

Despite that, the MAOA decided not to prosecute Shay. The MPCID’s investigation was completed on August 17^th, 2009; the prosecution closed the case on April 19th, 2010. We asked for the investigative material in order to appeal the decision, which took until May 24^th, 2011. In other words, from the date the case was closed by the prosecution to the time we received the case file, more than a year had passed – a year in which the clock kept ticking. Studying the investigative material took some time, and we appealed in July 2011, i.e. almost three years after the incident. Three weeks ago, that is two years and nine months after the appeal, we received the answer of the prosecution.

So why wasn’t Shay prosecuted? First, there was the somewhat audacious claim that Tabieh failed to identify his attackers – even though he did not even receive a proper lineup, but only a photo lineup, and also despite the prosecution itself logically noting that since the soldiers blindfolded him, he may have found it somewhat difficult to identify them. The prosecution found, however, that Shay probably broke the law, first by unnecessarily blindfolding Tabieh and secondly by holding him in custody far longer than permitted. It should be further noted that even though Shay was the checkpoint commander, and therefore responsible for the soldiers under him, and even though the prosecution agreed someone in the checkpoint assaulted Tabieh, it refused to prosecute Shay due to his command responsibility. We note that the Turkel Commission Report, as well as our own Lacuna report, call upon the IDF to impose command responsibility on its troops.

So why wasn’t Shay prosecuted? Well, said the prosecution, he is already out of the reach of the Military Justice Act. The Act applies for one year after the soldier is discharged. The incident took place in November 2008; the prosecution needed 18 months to initially close it and another four years to finally close it. This behavior was enough to ensure that Shay would not face trial.

The second incident took place six months later. On 26^th April, 2009, Tabieh arrived with his wife and baby boy to a checkpoint near Qalqiliya. There he was physically assaulted by a soldier named Netanel, and detained for several hours. Tabieh later made a formal complaint to the MPCID against both Netanel and the checkpoint commander, an officer named Kfir. Suspiciously, the detainment is missing from the checkpoint operational log. Another officer, also named Kfir, a DCL (District Coordination and Liaison) officer, arrived shortly after the incident at the checkpoint; at first the soldiers told him it was the police who decided to detain Tabieh, but later he was told by the soldiers that Tabieh was detained for “talking back and threatening to make complaints about them.” Surprisingly, the Military Prosecution agreed that that sounds like a sufficient cause for detainment.

The case against Netanel was closed because, according to the prosecution, even though the soldiers at the checkpoint claimed they didn’t remember the incident at all, they were adamant that it is inconceivable for Netanel to beat up Tabieh. The presence of two Palestinian witnesses – the complainant and his wife – is of no consequence, since they were the victims; and MPCID also thought their testimonies contained inconsistencies. Even without such a claim, our experience shows that MPCID grants excessive importance to the testimonies of soldiers when they contradict with the testimonies of Palestinians. Be that as it may, the prosecution summed contentedly, Netanel and Kfir both were no longer under the jurisdiction of the Military Justice Law.

Tabieh’s complaint was made immediately after the incident. The prosecution closed the case on June 20^th, 2011, more than two years after the incident. Here, too, MPCID took its sweet time allowing us to photocopy the investigative material; the appeal was submitted in July 2012, and was rejected three weeks ago. The Military Justice Act is enforced on a soldier for only one year after his discharge; when the prosecution drags its feet this way, it allows soldiers, time after time, to avoid justice.

The checkpoints, as noted by author David Grossman as early as 1987, are a flashpoint between the army and the Palestinians. During the Second Intifada and afterwards, the army spoke of the “strategic corporal,” the soldier standing at a checkpoint whose careless decision could ignite the region. One might have expected, then, that the prosecution and MPCID would act speedily and with resolve when a complaint is made about an incident at a checkpoint; but as we see time after time, this isn’t the case. Time after time, investigative negligence and compulsive procrastination allow soldiers to avoid facing trial– most Palestinians don’t bother with formal complaints.

When you add to that the fact that MPCID is not equipped to properly interrogate Palestinians – its investigators often lack the necessary training – and the fact that the small number of its investigators prevent it from dealing with the burden, the message sent to the bored, angry soldier standing at the checkpoint and looking to vent his frustrations on an innocent who cannot defend himself is very clear: Do as you wish. No harm will come to you. They’re merely Palestinians.