In the stormy days following the mess of the Second Ze’elim Scandal, when generals were trying to stick the blame for a deadly accident to one another, Aluf Uri Sagi was informed that the IDF Spokesman was attributing responsibility for the disaster to him. As usual, the IDFS was basically serving as the Chief of Staff’s spokesman – at the time, this was Ehud Barak, who was in heavy damage-control mode. Sagi didn’t blink: “The IDF Spokesman is lying, as usual,” he replied.
In response to our latest data sheet, which deal with the (lack of) law enforcement on IDF soldiers, the IDFS responded as follows: “It should be clear that not all the investigations opened in 2012 have been completed. From here one can see that the statistic presented is tendentious.
“Complaints about the behavior of IDF soldiers in Judea and Samaria and the Gaza area are evaluated by the Military Police and the Military Prosecution in accordance with the policy set by the military advocate-general, which was approved in an explicit ruling of the Supreme Court. In instances where there’s suspicion that a crime was committed, a Military Police probe is opened, which is overseen by experienced investigative officers and at times legal experts from the Military Prosecution. Every decision regarding a case being investigated, whether it’s to indict, take disciplinary action or close the case, is made on an individual basis, and certainly no account is taken of any sort of statistical data.
“It’s important to stress that every decision made by the military authorities can be challenged in the High Court of Justice. Many groups, including Yesh Din, have done this more than once, and in the overwhelming number of cases the High Court found no reason to intervene in the decision made. Naturally, a report presenting statistical data on decisions made in criminal cases cannot reflect the quality and character of the decisions made in each individual case.”
OK, let’s take this text apart. “It should be clear that not all the investigations opened in 2012 have been completed. From here one can see that the statistic presented is tendentious”. Out data sheet specifically mentioned this point, and even noted that one indictment was served in 2012 – based on complaint made in 2011, which referred to an assault in 2010. It’s starnge to see the IDFS considering the slowness of the military justice system as a point in its favor, but the claim that the data is “tendentious.” For starters, the data is based on information supplied by the IDFS itself. Secondly, a yearly review of statistical data is a so common as to be beyond notice. The IDFS, for instance, regularly publishes the number of incidents it considers to be terrorism on a yearly basis. If the IDFS wanted us to refer to all of the investigations derived from complaints made in 2012, that data would probably be published in 2014; by then, one suspects, the IDFS would not deign to comment, saying we should bother him with ancient history.
“Every decision regarding a case being investigated, whether it’s to indict, take disciplinary action or close the case, is made on an individual basis, and certainly no account is taken of any sort of statistical data.” Ah, the crux of the matter. You blame us for not investigating complaints properly, or at all? We’ll create a straw man and argue that you demand that we adhere to a quota of investigations – no such demands were made, of course – and fervently declare we shall stand at the side of law and justice against the tyranny of dry numbers. Assuming our straw man catches fire as planned, there will be so much smoke no one will notice we failed to address the facts.
“It’s important to stress that every decision made by the military authorities can be challenged in the High Court of Justice. Many groups, including Yesh Din, have done this more than once, and in the overwhelming number of cases the High Court found no reason to intervene in the decision made.”Which is related to our data how? What’s that got to do with anything? But no, there’s something quite worrying here. The IDFS says that if someone doesn’t like the fact It refrained from investigating an incident, the IDF has no intention of doing anything about it and you the victim is more than welcome to drag himself to the HCJ – which will cost him a lot of money, time and effort. Only then, after precious time has passed and with evident lack of will, the army will bother to investigate.
The IDFS itself will not explain why no investigation took place, and if it is taken to court, it will rely on the HCJ’s narrow definition of “reasonable decision.” The rate of cases in which the HCJ reversed the decision of a governmental body is very low, and its rate of reversing decisions made by law enforcement is very close to zero; a rare case of success was registered when, following one of our petitions, the IDF finally decided to investigate two particularly strange death cases.
“Naturally, a report presenting statistical data on decisions made in criminal cases cannot reflect the quality and character of the decisions made in each individual case.” And the sun sets In the west. Of course statistical data, by its very nature, can’t tell us specific details about an individual case. How did Stalin put it? One death is a tragedy, a million deaths are a statistic.
Yet they are still composed of a million individual deaths. And while statistics may not be able to teach us much about specific cases, it can certainly highlight a trend. And this one is very clear: If in 2011, and in the multi-year average in the years before it, the rate of investigations to complaints was 60%, in 2012 this rate was cut in half.
Furthermore, even if was accept that it is unlikely that a complaint made in December 2012 will mature into an indictment before 2013 rolls along, it is not at all clear why complaints made before July don’t. And the multi-year average tells us another depressing story: Since 2000, only five percent of all investigations matured into an indictment. If you look at the numbers of investigations alone, then the numbers of 2002 and 2003 are not that different from those of 2010 and 2011 – but, a decade ago, before Israelis became accustomed to the fact that anything can be done to Palestinians (for which we can thank the wave of suicide attacks), the rate of investigations maturing into indictments was more than double than the multi-year average. In 2002 it was 15%, in 2003 11% – and then the precipitous decline started,
The numbers do not lie. They tell us what the IDFS does not want to hear: That as Israeli society turned away from what its agents were doing in the West Bank, the IDF has significantly reduced the number of indictments against is soldiers involved in crimes. Over the years, an insidious concept became popular: It says anything soldiers do is legitimate. A significant number of Israeli citizens, for instance, had no problems with the IDF using human shields. As a result, the IDF shies away from indictments, since every indictment which makes it to the news brings it to a clash with a public which mostly is unwilling to hear of soldiers in the dock.
But the army must investigate offenses by its soldiers seriously, and must indict soldiers against whom there is reasonable suspicion. A military culture of covering for one another is a culture which subverts the very nature of military authority. It turns the IDF from an army, which is a disciplined force obeying legal orders, into a militia, which is an armed force with a casual attitude towards the law. And militias may be good at fighting other militias, but they are at a significant disadvantage when they face a real army. Restoring discipline in the IDF, specifically enforcing the law on its soldiers in the West Bank, is first and foremost an interest of the army itself. When the IDFS defends the policy of law unenforcement, it is subverting the essence of the IDF.