Condemnation of IDF in Press Release Not Supported by Accompanying Report
On May 9, 2013, the Israeli organization B’Tselem issued a 30-page report headlined “Human Rights Violations during Operation Pillar of Defense 14-21 November 2012.” This publication immediately received widespread coverage in the Israeli media, apparently based largely on an accompanying press release.
However, the claims in the press release are inconsistent with the actual report, creating false perceptions in the media. The press statement claims that the “report raises suspicions that the military violated International Humanitarian Law (IHL).” But these allegations are not demonstrated in the report; at best, they are the result of conjecture, as B’Tselem itself acknowledges in the report. Additionally, the claim to distinguish between civilian and combat deaths in this report, as in past B’Tselem statements, is based on manipulated definitions and speculation, and the application of existing legal standards would result in very different conclusions.
Problems in the Report
1) The report text clearly reflects the limited information available – largely “eyewitness interviews” (including via telephone) in Gaza, whose accuracy cannot be independently verified. Thus, after presenting the allegations from the interviews, the report states, “However, the means at B’Tselem’s disposal are too limited to determine whether or not the Israeli military acted in accordance with the law.”
This is a very significant change and acknowledgement by B’Tselem compared to the claims made in the 2009 reports on the previous Gaza conflict (and later repeated in the discredited Goldstone Report). However, as noted above, reference to this central methodological limitation is not mentioned in the press release.
B’Tselem acknowledges that it “is unable to investigate the lawfulness of each and every military strike during the operation,” although the bulk of the report and press release ignore this admission. (B’Tselem and other NGOs also bombarded the IDF with unsupported allegations of illegal actions, overwhelming the investigatory process. When the IDF did manage to respond, B’Tselem dismissed the replies out of hand.)
2) The report includes a number of fundamental distortions of international law that appear to be lifted from the Goldstone report, including standards for operational targeting in response to terror attacks, the concept of military necessity, and the obligation to warn civilians prior to strikes. B’Tselem also employs artificial definitions in the effort to distinguish between those participating and not participating in combat.
Example: The report condemns the IDF alleging that attacks “against the homes of senior members of Hamas leaders” are illegitimate military targets. Factually, B’Tselem has no knowledge of why any sites were targeted and therefore cannot draw conclusions relating to military necessity. Moreover, many of the homes were used to store weapons, clearly making them legitimate targets.
Example: The report condemns the IDF alleging that “In some cases a warning was given. Yet, even in those cases, residents were not always given sufficient time to leave their homes, and then, after the warning, it was not ascertained that the residents had indeed left.”
In reality, under international law, states are required only to provide general warnings to civilians to seek safety and only to the extent that such warnings are feasible under the circumstances; the effectiveness of warnings is not judged on the basis of whether the warnings were followed.
Example: B’Tselem claims that accidental civilian deaths occurring during this military operation might constitute a violation of international humanitarian law (IHL) since “the military must do everything in its power to prevent such mistakes, and when they do occur, to examine their underlying causes and what can be done to prevent recurrences.”
This assertion is false. The standard is “due diligence and acting in good faith,” defined as “precautions that are feasible in the circumstances, given the information available to the commanders and military planners.” B’Tselem and other NGOs have no knowledge that these steps were not taken, and the evidence indicates the opposite – that the IDF indeed took the required precautions.
3) B’Tselem’s previous reports, including the 2009 allegations regarding the Cast Lead operation, erased the terror attacks that led to the IDF response. In this report, however, the NGO includes “an examination of the conduct of both sides during the operation,” including condemnations of Hamas.