According to both International Humanitarian Law and Israeli law, Israel is obligated to conduct effective investigations when there is suspicion that IDF soldiers have violated the laws of war and committed offenses against Palestinians, and under appropriate circumstances, to put them on trial. However, in practice soldiers enjoy near absolute impunity for offenses they commit against Palestinian residents of the West Bank, who are considered protected persons under international law.

The opening of a criminal investigation against IDF soldiers suspected of committing offenses against Palestinians is different from the corresponding process for Israeli citizens. Investigations files conducted by the Military Police Criminal Investigations Division (MPCID), which is charged with handling criminal investigations against IDF soldiers, are not automatically opened following the filing of a complaint, but are transferred to the Military General Corps (MAG), who decide whether to pass the complaint on to the MPCID for investigation.

Not all reports or information that reach the law enforcement authorities in the IDF necessarily lead to the opening of a criminal investigation. In certain cases, it is enough to report that an incident happened for it to be investigated, and in other cases, the MAG orders “verification” of the suspicions, on the basis of whose results a decision is made as to whether to open an investigation.

As a rule, IDF policy regarding the opening of an investigation determines that in the case of suspicion of an offense that took place during an operation, opening a criminal investigation is conditioned upon a preliminary clarification. Most of the time the clarification relies on an operational investigation conducted by the unit involved in the incident in question, after which the MAG decides whether to order the opening of an investigation.

Exceptions are those cases in which Palestinians are killed. In 2011, after a protracted struggle with human rights organizations, then MAG Brigadier General Avichai Mandelblit determined that all cases of deaths of Palestinians not involved in warfare should be opened immediately by the MPCID, “unless the cases of death were clearly part of a combat situation.”

The fact that an operational investigation constitutes the basis for a decision about whether to open an investigation raises a number of difficulties. The investigation is designed to deduce operational conclusions and not to assess criminal responsibility. Those conducting the investigations are usually commanders that have not been trained to handle investigations, and in a number of cases, it turned out that soldiers lied during investigations to conceal their involvement or that of their friends in cases of suspicion of criminal conduct.

The MPCID investigations currently have no time limits, so they can go on for years until the MAG decides the fate of the case, which can lead to situations in which evidence is not collected and examined in time, and soldiers suspected of offenses are no longer subject to military law. In addition, at present, the IDF does not have one body responsible for coordinating and supervising the handling of complaints or that tracks the pace of progress of investigative and clarification proceedings.

The Turkel Commission, which was established after the Mavi Marmara flotilla incident in May 2010, looked into the investigation and examination mechanism regarding complaints and claims of violations of the laws of war according to international law. The Commission determined that “there is room for corrections and changes to the examination and investigation mechanisms and in some areas, there is room for changing accepted policy.”

Among other things, the Commission adopted Yesh Din’s position that the decision to open an investigation should not be dependent upon the results of operational investigations. The Commission also recommended determining a brief and defined timeframe in which a decision on whether to open an investigation is made, as well as the maximum time allowed for the investigation itself.

However, in 2015 the Ciechanover Commission, established in order to recommend practical steps for implementing the Turkel Commission’s recommendations, published a report that failed to make any concrete, practical recommendations regarding standards of human resources and budgets necessary to implement the recommendations. For some of the recommendations, no timetables or stages or implementation were set at all. Without addressing these practical aspects, the various bodies clearly won’t be able to implement the recommendations, and they will remain a dead letter for a long time to come.