The military prosecution produces an unseemly requirement in order to allow access to appeal files: A commitment that no one will file a civil suit against the government

In the last few days, the Higj Court of Justice (HCJ) has leisurely reviewed a petition that we, along with the Center for the Defense of the Individual, filed two years ago. The petition deals with an unreasonable procedure presented by the MPCID in May 2010, i.e. more than three years ago. What is it about? Nothing serious, just the decision that if you consider suing the IDF for some injury caused you, or even if someone else considers doing so, you will not be able to appeal the decision of the MPCID to close the case. Or, rather, you could appeal, but it will be an empty gesture since you’ll have nothing to base your appeal on.

It sounds complicated, so let’s give an example. ‘A and M., residents of Ramallah, find themselves at a check point manned by particularly bored IDF soldiers. The soldiers beat them, humiliate them in public, and cause them medical and financial damage. The case is fictional, but similar cases take place often.

‘A., who always had a soft spot for lost causes, decides to press charges against the soldiers. Meanwhile, M. is worried about his new medical bills, so he turns to an attorney, who – without coordinating it with ‘A. – files a Notice of Damage, i.e. informs the IDF that M. is not yet certain whether he wants to sue them, but he reserves himself the right to do so. Filing is Notice of Damage is necessary for people living in the West Bank, if they intend to sue in the future.

According to the MPCID’s procedure from May 2010, as soon as M. files his Notice of Damage, which may or may not mature into a civil suit, ‘A. automatically loses the right to receive the investigative material necessary for him to appeal the MPCID’s decision that everything that day at the check point was hunky dory. This is how Captain Guy Comforti, the MPCID’s legal counsel, explains the procedure by which MPCID will share its closed investigation files with victims or their attorneys: “Assuming the case is involved in any legal procedure (related to the Military Prosecution or the State Prosecution), the applicant will receive a note informing of it, and that no relevant details from the file may be shared.”

What does this mean, translated from Bureaucratese? It means that if there is any hint of a chance that a person harmed by the IDF will sue the government demanding compensation, MPCID will not provide him with his case’s investigative file. Furthermore, it will not serve him the file even if he did not press a civil suit, but just wants the soldier who abused him to be punished by going home two hours later than usual. That is, in order to defend the government from the possibility it may actually have to compensate the people it harmed, the MPCID will prevent the victims from accessing the evidence – material which it is the exclusive body in charge of gathering (aside from the absurd cases when MPCID demands that we gather evidence for it, on which I’ll write in a future post.)

The MPCID and military prosecution no longer even pretend to protect the rights of Palestinians: If you dare demand what you deserve, you won’t receive the relevant evidence. But there’s another problem here: that of time differences.

A normal civil suit is settled even more slowly than the usual legal procedures, and it may not end for years. During this time, no appeal can be made regarding the decision to close a case in which soldiers are suspected of abuse, pillage or murder. Since an appeal would be impossible, even though the investigative negligence may stink to high heaven, the meaning of the government’s defense of itself from civil suit is that criminals will avoid justice.

The cynics would say that that is precisely the point: Killing two birds with one stone. The less cynical would say that unfortunately, this possibility does not seem to bother the organization called the Military Police Criminal Investigation Division. Let’s hope it will bother the HCJ.