Background: In May 2016, B’Tselem announced that it was ending engagement with the Military Advocate General’s office (MAG), alleging that IDF investigations were merely “a whitewash mechanism that also, in advance, absolves senior military and government officials of responsibility for the policy they set out.” This move received a reasonable level of media coverage, accomplishing the objective. (B’Tselem’s annual budget of approximately NIS 9.3 million is provided by a number of European governments, as well as private foundations.)

In September 2016, the IDF released its fifth (!) report on incidents from the 2014 Gaza War, providing the detailed findings into cases of alleged war crimes and refuting the claims of many NGOs, including B’Tselem. As a member of the NGO-based UNOCHA “protection cluster” during the war and involved in promoting claims regarding civilian casualties, B’Tselem’s record has continued to come under considerable criticism. This might explain the intense effort to refute contrasting analyses and findings.

In response to the IDF’s document, B’Tselem published a document headlined: “Whitewash Protocol: The So-Called Investigation of ‘Operation Protective Edge’” (September 20, 2016).

Interestingly, B’Tselem does not dispute the IDF investigation and analysis of the individual incidents. In itself, this is an admission that its and other NGOs’ previous allegations of “war crimes” and other violations were incorrect.

Shifting the focus, B’Tselem now argues that the IDF investigations are illegitimate because “there has been no investigation of policy issues, including the policy of targeting inhabited homes, which resulted in the Israeli military killing hundreds of people….” On this basis, they argue that in the IDF, “there is no accountability [], only whitewashing.”

B’Tselem’s claims are fundamentally flawed in three respects:

1) B’Tselem objects to policies in a broad sense. However, in this or any other example, if each of the individual strikes at issue were consistent with the laws of armed conflict – targeting fighters, command centers, and weapons caches and fully proportionate – there is no basis for establishing violations at the policy or macro level. Moreover, B’Tselem cannot support its claim of a pattern in which Israel did not act to “avoid harm to civilians,” given the evidence that of more than IDF 6,000 airstrikes, the NGO has identified at most 72 incidents (1.2%) where (supposedly) “residences were bombed while residents were at home.” If anything, the pattern proves the opposite point, which is inconsistent with B’Tselem’s agenda.

2) B’Tselem’s arguments are emotional, neither fact-based analysis nor legally-based. The leaders of this NGO again examine Israel’s operations in Gaza and unsurprisingly, see “a terrible human tall (sic).” However, that is not a legal standard. War is certainly hell and civilian deaths are always tragic, but neither is inherently illegal and cannot be addressed outside the wider context of the conflict in all of its dimensions. As such, Israeli investigations are right to carefully examine the specific circumstances of individual incidents for compliance with international law, and while the moral questions are certainly important, they should not be confused with the legal dimensions.

3) B’Tselem’s arguments transparently serve the NGO’s primary political objectives. Under the leadership of Hagai Elad, B’Tselem has emphasized political dissent from the Israeli government and from policies (including military operations in Gaza), in contrast to an emphasis on research regarding human rights issues. This agenda is reflected in the complaint that “there are no investigations of the true culprits: Neither government officials nor senior military commanders…” Political opposition is certainly legitimate, but exploiting human rights and international law, in the form of serious charges of wrongdoing without real evidence, is not.

In other words, as in other publications on the 2014 war, B’Tselem is using complaints about individual incidents and investigations (jus in bello) as a pretext for its opposition to Israel’s decision to again confront Hamas (jus ad bellum) in the first place.

Among NGOs, B’Tselem is not alone in trying to undercut Israeli investigations in response to the MAG’s detailed reports. Adalah and Al Mezan also tried (and failed) to refute the IDF findings.

As highlighted in B’Tselem’s statement, these NGOs continue their active roles in the campaign to demonize Israel, deprive Israeli citizens of the right to self-defense, and bring Israeli officials before the International Criminal Court.