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legal policy:

"Not to Investigate Palestinian Deaths"

General Menahem Finkelstein refused a written request to stop investigating the death of five Palestinian children from an IDF booby-trap bomb, and revealed his policy: not to investigate. The unit in charge of the killer bomb was given a special decoration

Uri Blau, Kol Ha'ir

1 Mar 2002

On 30 Jan. Brigadier-General Israel Ziv, commander of the IDF Gaza Division, wrote to the army's Chief Attorney and asked him to close an investigation file regarding an IDF booby-trap bomb that killed five children, an investigation that may question, among other things Ziv's own responsibility for the killing. Br. Gen. Ziv wrote that the investigation might damage soldier morale.

The Chief Attorney, Gen. Menahem Finkelstein, declined the request. His response letter reached Br. Gen. Ziv on 11 Feb. It reveals his policy and his considerations regarding Intifada related Military Police investigations. Gen. Finkelstein explains that completely refraining from investigation could lead to investigations by civilian authorities, and even to international bodies. The letter also mentions that a mere 21 MP investigations were opened during this Intifada, and only two indictments followed. He also complains that internal investigations by IDF units are insufficient.

On 20 Jan. Gen. Finkelstein opened a MP investigation into suspected negligence in an elite unit's installation of a booby-trap bomb near Han Yunes, Gaza, that killed 5 Palestinian children on 22 Nov. 2001. The reason for investigating, according to Gen. Finkelstein, was "the fact that this was a pro-active operation, which included a long battle procedure, and lasted a long time, as well as the problems revealed by the internal investigation, and the hard results."

"I share many of the insights and feelings you presented," Gen. Finkelstein wrote to Br. Gen. Ziv. He adds that he is aware of the hard feeling a MP investigation in the unit can cause. Still, he stands behind his decision.

"Granting full immunity from investigation and indictment following operational activities is problematic… a situation where IDF soldiers and commanders hold such wide and fateful authorities on the one hand, and on the other they are immune to investigation and indictment is not proper. First, it may lead to a loss of public trust in the Military system. It can arouse a sense that the army prevents the investigation of its own actions, thus covering his men's negligent behavior. I sense this can lead not only to the investigation of operational activities, but also to the carrying out of these investigations by external bodies, such as the civilian system in Israel, and possibly, in the future, even by the International Criminal Court."

Further down in his letter Gen. Finkelstein notes the minute number of MP investigations regarding shootings by soldiers, merely 21 cases since the beginning of the Intifada (compared to over 1,000 Palestinian deaths). He compares the difference in policy between this Intifada and the first Intifada, trying, it appears to tell Ziv he need not worry.

"This does not mean that MP is from now on going to investigate every operational mishap and every death in operational circumstances. Reality since the outbreak of "Ebb and Tide" events [IDF code for the Intifada] proves the contrary. As you are aware, the policy I set from the very beginning of the events was generally not to open investigations into instances of the use of weapons (unlike instances of harassing Palestinians, or damaging their property). I have to stress this policy is completely different from the policy practiced during the Intifada in the years '94-'97, when the main instrument for discovering facts was MP investigations. Today fact-finding is done by operational debriefing, and only highly irregular cases are passed on to my examination, to decide about a MP investigation… Due to this policy I have 'won' criticism from some of my lawyer colleagues, but I stand behind it, and behind the reasons on which it is founded."

Toward the end of his letter Gen. Finkelstein writes that internal investigations carried out in the IDF are sometimes problematic: "I have to note, sadly, that in no few instances… investigation reports passed on to us were, to say the least, insufficient and unprofessional."

Gen. Finkelstein promises Br. Gen. Ziv that "… a soldier that carries out his mission with integrity, professionally, in accordance with the IDF's values and the norms the army passes on to him - should not worry about a MP investigation. It must be remembered that the opening of a MP investigation does not necessarily mean an indictment; the data presented above testifies to that."

This last estimate is enhanced by IDF practice. The internal investigation concluded that soldiers monitoring the bomb site saw children hanging around the site, but did not act to prevent their injury. The Chief of Staff, in his own investigation report, said that the bomb should have been detonated earlier, after it was learned that civilians were in the vicinity.

Still, the unit responsible for these terrorist acts was recently awarded a special decoration from the Chief of Staff for its work in the Intifada.

 
 

Kol Ha'ir Weekly Magazine from the Schoken Local Press Network, is not published on-line, but can be contacted by email.