January 14, 2007 To Mr. Amir Peretz Ministry of Defense The Kirya, Tel-Aviv Also by fax Re: Special ministerial committee – law enforcement powers for IDF soldiers in Hebron Dear Sir, We were astonished to learn today from the media that at the Israeli Cabinet meeting this morning it was decided to establish a ministerial committee to, among other things, "examine giving policing powers to soldiers who serve in Hebron." The measures recommended by the ministerial committee, according to the report, are meant, among other things, to enable soldiers to participate in law enforcement upon Israeli civilians who hurt Palestinians and their property in the city. We are sorry that the defense minister, who according to the report pushed for the establishment of the committee, does not know that both by government decision and by international humanitarian law (the rules of warfare) IDF soldiers in the West Bank have full law enforcement powers upon Israeli civilians in the West Bank. As shall be described below, the enforcement powers needed by IDF soldiers are firm and abiding and age old. All that is needed is awareness of their existence and the real desire to use them. According to the "Law Enforcement Procedures and Regulations Concerning Israelis who Break the Law in Judea, Samaria and the Gaza Strip" (hereinafter -- the Law Enforcement Procedure) issued on September 2, 1998 by then-Attorney General Elyakim Rubenstein, most of the responsibility for enforcing the law upon Israeli civilians in the occupied territories may reside with the police, but the procedure does not absolve IDF soldiers from the immediate handling of an incident and detaining suspects. In fact, the Procedure authorizes the soldiers and even requires them to take enforcement measures against Israelis who break the law. Section 11 (a) (5) of the Procedure (about incidents of which there is no prior information, and to which IDF soldiers arrive first) instructs the IDF to secure the scene until the arrival of the police, but states explicitly that "this section does not detract from the duty of IDF forces to take all necessary measures to treat casualties or prevent harm to life, body or property, as well as detaining and arresting suspects who could flee the scene" (emphasis ours). The IDF -- as the occupying force in the West Bank -- bears full legal and moral responsibility for security and public order in the areas under its control, and its powers (which are also its duties) to enforce the law are anchored in the rules of
warfare and are not in dispute. Article 43 annexed to the Fourth Hague Convention of 1907 empowers the occupying superpower, through the occupying force, to manage the occupied territory instead of the sovereign, and for that purpose the occupying force is given all necessary powers to maintain law and public order in the occupied territory. The article states that the occupier must take "all measures in his power to restore and ensure […] public order and safety." Article 46 annexed to the Hague Convention states that “Family honor and rights, the lives of persons, and private property [...] must be respected." Section 27 of the fourth Geneva Convention states that protected civilians living in the occupied territories are entitled, in all circumstances “to respect for their persons, their honor […] and shall be protected especially against all acts of violence or threats thereof and against insults […]." The occupying force (in this case the IDF) therefore bears responsibility for maintaining order and safety in the area, and for that purpose is temporarily empowered -- for the duration of the occupation -- with the various powers that allow it to fulfill that duty. The IDF must enforce the law and thereby protect the civilians who are under its control. In order to fulfill that duty, international law gives it all the powers of enforcement which before the occupation were held by the government of Jordan and the Jordanian police. Let us stress again -- the duty to enforce the law is first of all the duty of the IDF as the occupying army and the sovereign in the occupied territory. The IDF is allowed to delegate its power, as it has indeed done, to other parties such as the police, but in any case responsibility resides with the military commander. Therefore, soldiers are not allowed to claim they are not empowered to perform acts of enforcement, such as detaining Israeli civilians who hurt Palestinian civilians or their property. Not only are they allowed and authorized to do so, but they are required to do so. The obligation imposed by international law on the IDF as an occupying force therefore is not limited to the negative duty to avoid hurting the protected population and its property, but also includes a positive duty to take all measures to ensure its well-being and protect its property from the violence of a third party, groups or individuals. The special protection stated in article 27 of the Fourth Geneva Convention and the clear rules in articles 43 and 46 annexed to the Hague Convention therefore oblige Israel to provide the Palestinian population in the occupied territories with effective protection against settler violence. The Army's obligation to maintain order and protect the safety of the civilian population in the occupied territories has also been recognized over the years in High Court of Justice rulings. In one ruling, the HCJ stated that "maintaining order and safety in practice are, according to public international law, among the main roles of the military administration" (HCJ 358/88 Association for Civil Rights in Israel v OC Central Command Rulings 43 (2) 529, p. 539). And indeed, responsibility for maintaining the rule of law in the West Bank resides with the IDF, which empowered the Israel Police by military order to take part in law enforcement in the area. Some time after the attorney general issued the Law Enforcement Procedure, the IDF issued its own procedure, and it, too, stated that responsibility for preventing offenses by Israelis in the West Bank and handling them resides with the police. However, the military procedure stated that "any soldier who witnesses the commission of an offense by an Israeli, whether against a person or against property, must act
immediately to prevent the offense and/or stop it, if necessary to detain and arrest the people suspected of committing the offense, to record the scene and to maintain it" (from letter by Captain Harel Weinberg from Judea and Samaria region legal advisor's office to Attorney Limor Yehuda of ACRI, July 31, 2005). As stated, the IDF itself does not deny the obligation of its soldiers to detain and arrest, if necessary, Israeli civilians who hurt Palestinians, when there is no police force present. The IDF also states repeatedly that its soldiers are well advised they possess those powers. So, for instance, the IDF spokesman wrote to Yesh Din in response to Yesh Din's report “A Semblance of Law - Law Enforcement upon Israeli Civilians in the West Bank”: "... inasmuch as IDF forces arrive first at the scene [of an incident of Israeli civilians harming Palestinians], they will handle law enforcement pending arrival of the Israel Police. Thus, in the absence of Police presence, soldiers of the IDF are responsible [...]. It will be mentioned that, if necessary, IDF forces are authorized, as well as obligated, to detain and even arrest those suspected of criminal activity. IDF soldiers have acted and continue to act according to the above-mentioned procedure (barring certain exceptional cases) and are regularly briefed on the duty to act accordingly." Unfortunately, despite the repeated statements (over years) by senior IDF officials that IDF soldiers in the West Bank are briefed and act upon the Law Enforcement Procedure, the picture recently broadcast, that shows an IDF soldier standing idle while a resident of the "Jewish settlement" of Hebron acts rampantly towards a local Palestinian resident, is a good representation of the response of IDF soldiers in the West Bank in the vast majority of incidents where Israelis hurt Palestinians, which are much more serious incidents. In fact, the attitude that has taken root in the IDF is that soldiers who witness criminal offenses by Israeli civilians must wait for the police and refrain from intervening. Only rarely do soldiers try to detain Israeli civilians while they are committing an offense against Palestinians or their property. Yesh Din devoted a chapter in its comprehensive report "A Semblance of Law - Law Enforcement upon Israeli Civilians in the West Bank" to the functioning of IDF soldiers who witness offenses by Israeli civilians against Palestinians and their property. The organization's research shows that, at best, soldiers intervene in an attempt to stop the offense -- but they do not arrest or detain the offender; usually IDF soldiers stand by and do not act to stop the offense or to detain the offender; in the worst case the soldiers themselves participate actively in the offense. Yesh Din also learned while writing the report that the IDF does no follow-up of the cases where IDF soldiers acted in accordance or in violation of the Law Enforcement Procedure. Failure to keep track of the cases in which IDF soldiers use their power according to the Law Enforcement Procedure reflects the army's attitude as far as its duty to defend Palestinians from settler violence. Also the fact that the IDF does not have figures as to the prosecution of soldiers who stood by and did not intervene while Palestinians were attacked by settlers indicates systemic neglect in regard to the Law Enforcement Procedure. In the absence of measurable figures as to the IDF's treatment of events of settler violence, the army will not succeed in generating real
change in the attitude of its commanders and soldiers, nor in fulfilling its obligation to defend Palestinian civilians from the violence of Israeli civilians. The Yesh Din report lists a series of recommendations in order to lead to a meaningful improvement in IDF soldiers’ and commanders' fulfillment of the Law Enforcement Procedure. They include:
1. The IDF must define for its soldiers who serve in the West Bank the protection of the Palestinian civilians and their property against the violence of Israeli civilians as a permanent and key mission. 2. The IDF's regional divisions in the West Bank must define in their standing orders assistance to SJ District investigations as a permanent and key mission.
3. The IDF must regularly and frequently allocate forces for patrols in known areas of friction between settlers and Palestinians, with the purpose of ensuring the security of Palestinian civilians. 4. The IDF must brief its soldiers serving in the West Bank regularly on the rules of the "Law Enforcement Procedure" as to their obligation to intervene in cases that settlers assault Palestinians and/or their property.
5. The IDF must clarify for its soldiers that they have the power to arrest Israeli civilians suspected of assaulting Palestinians, and if necessary take the suspects for continued processing to the nearest police station. 6. The IDF must conduct investigations of incidents in which IDF soldiers were present when Israeli civilians harmed Palestinians and/or their property, and ensure that the soldiers who were witnesses to such events give testimony to the police, and take measures against soldiers who don't comply with the Law Enforcement Procedure directives.
7. The IDF must set standards to examine the level of performance of the Law Enforcement Procedure, on a unit basis. 8. The Central Command should keep regular records and monitor cases when IDF soldiers detained Israelis suspected of assaulting Palestinians and their property, and in which they transferred them to the police.
9. The Military Police's Criminal Investigation Division should maintain constant contact with the SJ District and receive permanent reports of incidents in which IDF soldiers stood by doing nothing during violent incidents on the part of soldiers and abused their obligation to defend Palestinian civilians. Following such reports the MPCID should initiate, shortly after the incidents, investigations of the behavior of the soldiers and commanders. The
conclusions of the MPCID's investigations should lead to a decision by the Central Command prosecutor, for the purpose of criminal or disciplinary prosecution, depending on the circumstances of the matter. Thus, Mr. Minister, there is no lack of legal tools and formal powers. A real willingness and desire to enforce the law upon the settlers of Hebron and other settlers are sorely lacking. We would be glad to meet the special ministerial committee at any time to present the findings of our study on the enforcement of the law upon Israeli civilians in the West Bank and to make our contribution to the committee's work.
Sincerely,
Attorney Michael Sfard Legal Advisor, Yesh Din cc: Menachem Mazuz, Attorney General Mr. Ehud Olmert, Prime Minister of Israel Ms. Tzipi Livni, Minister of Justice Mr. Avi Dichter, Minister of Domestic Security Mr. Roni Bar-On, Minister of Interior Affairs