Two years after the 2014 Gaza war, B’Tselem has published what it claims are “data  based on a meticulous, exhaustive investigation” into the identities of over 2,200 reported Palestinian fatalities during that conflict, and the circumstances of their deaths. This NGO has also created an interactive graphic showcasing its claim that “63%  of the 2,202 Palestinians killed by Israeli security forces…did not take part in the hostilities” and “526… were children under eighteen years of age.”
What does B’Tselem hope to accomplish by publicizing these allegations two years after the war?
Is the message that war is hell and sad and horrible? That, in armed conflict, children are tragically and horrifically killed? Indeed, the headline of B’Telem’s press release is “50 Days: More than 500 Children.”
But anyone familiar with B’Tselem’s political advocacy and the centrality of “dissent”, knows that this universal message is foreign to their narrow ideological agenda.
Rather, as noted in its press release and in social media posts, B’Tselem is pushing the line that its research “casts doubt on Israel’s claim that all the targets were legitimate and that the military adhered to the principle of proportionality during the attacks and took precautions to reduce harm to civilians.” B’Tselem’s campaign asserts that “The Israeli government almost totally shirked its responsibility for the massive harm to civilians in the operation,” and that “the moral and legal responsibility for this massive harm to civilians lies with” Israeli decision makers.
These blatant political statements and the related goals of demonizing Israel and bolstering international investigations are among the main reasons that B’Tselem publishes statistics that are fundamentally flawed and meaningless. The number of civilians allegedly killed has no relevance to war crimes allegations.
In order to evaluate whether a particular IDF strike was a war crime, we must first know the intended target. Was it a combatant, a weapons storage facility, a tunnel, or a military command center? Or was a civilian targeted? B’Tselem cannot possibly know this crucial piece of information. They have no idea (in most cases) of the nature of the target, so it is impossible for them to make judgements on the legitimacy of any attack. Perhaps the civilian casualties, when these occurred, were a result of an errant Hamas missile or secondary explosions from munitions on the ground.
Moreover, B’Tselem does not have access to Israeli military operational and intelligence documents that would provide a more definitive answer to some of these central elements.
Next, B’Tselem identifies Palestinians who “were taking part in the hostilities at the time of their death, or held a continuous combat function in an armed group in the Gaza Strip,” and labels all others civilians.
This is problematic in two respects. One, as already noted by the blogger Elder of Ziyon, B’Tselem ignores evidence of the militant affiliations of some individuals it labels as “civilian.”
Second, if the attack was against a legitimate military target, but civilians were killed (i.e. collateral damage), the key legal question is whether civilian damage that was expected by the attacker at the time is excessive to the anticipated military advantage (proportionality).
We need to know many details that are not provided in B’Tselem’s graphic: how many combatants were in the location being targeted? How senior were they? How many and what kinds of weapons were present? How many civilians did Israel know to be there (or could anticipate being there)?
This brings us to the issue of research methodology, which is essential for any human rights report, and which has been particularly lacking in B’Tselem’s activities. Here is a typical description from B’Tselem’s data, for an individual who is actually a member of Hamas, which highlights the lack of information necessary to make moral or legal judgements:
‘Ata Muhammad ‘Ata a-Najar. 28 years old, resident of Qizan a-Najar, Khan Yunis district. Killed on 29 Jul 2014, in Qizan a-Najar, Khan Yunis district, by gunfire from an aircraft. Did not participate in hostilities. Additional information: Killed in his home together with 15 other members of his family in a strike on the homes of the a-Najar extended family. The strike destroyed two of the family’s homes, in each of which eight people were killed. Other houses were damaged.
Third, B’Tselem’s claims contradict, in some cases, the allegations of other advocacy NGOs. For instance, Amnesty International, Medical Aid for Palestinians (UK), Al Mezan, Palestinian Center for Human Rights, and Lawyers for Palestinian Human Rights all refer to an incident on August 1, 2014, in which three medics in an ambulance were reportedly killed in an attack. All emphasize their civilian and medical statuses. And all erase their known affiliation with Islamic Jihad. B’Tselem, on the other hand, lists the three as “participating in hostilities.”
Which version is right?
This and similar disagreements reflect the fact that NGOs do not have the capacity to make judgements about what happened, ascribe responsibility, and draw legal conclusions. But this does not prevent officials from the United Nations and governments, diplomats, journalists, and academics from uncritically repeating B’Tselem’s statistics and claims.