EMOTION, NOT LAW: A CRITICAL READING OF B’TSELEM’S ‘BLACK FLAG’ REPORT

See here for NGO Monitor’s press release, B’Tselem Adds to the Chorus of of False Gaza War Allegation.

On January 28, 2015, B’Tselem published “Black Flag: The legal and moral implication of the policy of attacking residential buildings in the Gaza Strip, summer 2014,” alleging that there was a “black flag of illegality flying over” Israeli military tactics during the 2014 Gaza War.

This conclusion, which as detailed below is not based on facts, evidence, or serious legal analysis, is a continuation of B’Tselem’s activities during the war itself. Its numerous statements, media appearances, and campaigns featuring slick graphics were characterized by repeated false or distorted factual and legal allegations and blatant political bias.

A common theme in B’Tselem’s activities during the war was Palestinian victimhood, expressed through emotive content and “initial,” but unconfirmed and unverifiable, findings. In order to sway the Israeli public away from supporting the attack in Gaza, the emotional weight of civilian deaths and personal testimonies took the place of legal or human rights analysis to determine responsibility and alternative policies. (A similar rhetorical move occurs in “Black Flag,” where “The analysis of the legal aspects of this policy is preceded by accounts of some of the Palestinian families who lost their loved ones” [pg. 4].)

For instance, B’Tselem sought to run a paid advertisement on Israeli public radio, reading the names of Gaza children killed during the war to show “the massive price that Gazan civilians are paying for this operation.” It was rejected by the Israel Broadcast Authority as “politically controversial” and imbalanced. In contrast, B’Tselem has not engaged in any media campaigns or detailed reports to highlight and examine Israeli suffering during the war

“Black Flag” is an expansion of another B’Tselem initiative from the summer, a highly inflammatory infographic on “Families bombed at home, Gaza, July-August 2014.” As with the original, this report uses the façade of details and research as cover for B’Tselem’s unconvincing legal analysis and lack of knowledge concerning the essential facts of the incidents.

Fundamental problems with “Black Flag” include:

B’Tselem’s Lack of Knowledge

The entire report is premised upon B’Tselem’s lack of knowledge concerning Israeli military intelligence, tactics, strategy, targeting decisions.

• “B’Tselem has no way of knowing in how many cases during the fighting the military attacked houses simply because of who lived in them, and in how many it attacked homes for other reasons, such as that they served to conceal weapons. Additionally, B’Tselem has no way of knowing the number of cases in which, when the military attacked a house because of the identity of its occupants, the house was vacant at the time of the strike, and in how many the house collapsed with the occupants still inside. The military alone has the answers to these questions and it refrains from providing information on this matter. All that is available are media reports, published about a week after the operation began, stating the military had attacked about a hundred homes of ‘Hamas and Islamic Jihad commanders’.” (pg. 40)
• At best, “Some of B’Tselem’s investigations did lead to conjectures regarding the reasons for an attack on a specific house.” (pg. 41, emphasis added)

Ignoring Exculpatory Evidence

B’Tselem did not relate to available evidence that challenges many of its factual and legal claims. Instead, it treats its (admittedly limited) knowledge of a situation as the only available information and draws conclusions accordingly.

For instance, B’Tselem refers to “the absence of specific information about the effective contribution a given house made to military action and the clear advantage gained by destroying it” (pg. 40) and complains that “the IDF Spokesperson did not explain the connection between any of the houses attacked as specified in his statements and any military activity” (pg. 39).

The first claim is false, and the second imagines that the IDF Spokesperson is the only relevant source for making determinations. In fact, the government has released information regarding some of the strikes (such as theIsraeli army’s operational update ); other details are widely available in the media. In several instances, operational meetings were taking place or rocket launchers were being prepared in front of these homes. Every house targeted had at least one and sometimes multiple Hamas/Islamic Jihad/other combatants.

• Materials that were ignored include the Israeli army’s operational update, which is directly relevant to many of the incidents in B’Tselem’s report, and ITIC research showing that the combatant-civilian ratio in Gaza was about 55:45, not 30:70 as claimed by B’Tselem. The opening incident of the B’Tselem report, about the Kaware’ family home, is a prime example.
  • The most important detail is missing. According to a July 8, 2014 New York Times article, a family member said that after the IDF fired the warning missile, the neighbors came to the house to form a human shield. “‘Our neighbors came in to form a human shield,’ he said, with some even going to the roof to try to prevent a bombing.”
  • B’Tselem also ignores the IDF findings that “The residents were identified as having vacated the building, and subsequently a bomb was dropped on the target… visual evidence collated by the FFAM clearly showed that the roof of the targeted building was deserted from the moment of the bombs release till it acquired its target (in contrast to certain reports regarding the incident).”
  • Elsewhere, B’Tselem has said that none of the fatalities was a combatant, which is inaccurate and highlights the absence of the required methodology throughout its reporting.

B’Tselem does not understand international law.

Throughout the report, B’Tselem proffers interpretations and standards of international humanitarian law that simply do not exist. Either B’Tselem has no understanding of military operations and the pertinent provisions of international law, or it is deliberately attempting to find Israel guilty (or both).

Interestingly, in its February 2009 “Guidelines for Israel’s Investigation into Operation Cast Lead,” B’Tselem recognized that “Massive use of force does not necessarily indicate breach of the principle of proportionality, certainly when Hamas fighters are operating in a civilian area, boobytrapping houses, and hiding weapons in houses of civilians” (pg. 8). However, in “Black Flag,” B’Tselem deviated from such careful formulations of international law.

• Concerning military advantage, B’Tselem writes: “In the absence of proof that the military advantage anticipated from these attacks was both unmistakable and significant, the inevitable conclusion is that the principle of proportionality has been violated” (pg. 43). Again, B’Tselem is inventing a legal standard. The terms “unmistakable and significant” are not found in any legal sources for proportionality. In addition, B’Tselem has no knowledge as to the military advantage of a particular strike and therefore is not qualified to claim that there were IHL violations. B’Tselem also reveals its ignorance of military operations and IHL because the killing of combatants, destruction of command centers, weapons depots, launch sites, and tunnel entrances all provide clear military advantages.
• B’Tselem alleges that warnings were “absent or ineffective” and that this proves Israeli violations of the rules of war (pp. 43-46): The fact that in some cases warnings were not 100% effective does not indicate any violation of law; there is no requirement under international law to provide 100% effective warnings. In fact, under IHL, Israel is only required to give general warnings to the extent they are feasible and only when doing so would not hamper Israel’s chance of success in military operations or compromise the element of surprise. Nevertheless, Israel’s warning procedure far exceeds the legal requirements and is more extensive than that of any other army. In some cases, it was also documented that Hamas ordered the Gaza population to ignore IDF warnings and even directed people to return to targeted sites as human shields.
• Another example, regarding Hamas’ responsibility: “[1]n a case in which Hamas did in fact conceal weapons in a residential building, thereby turning it into a military target that may be targeted, Israel’s interpretation would be that the military would attempt to warn the building’s occupants before striking. If the warning accomplishes its objective so the civilians are unharmed, Israel can use the incident to showcase how the military abides by IHL. If civilians are harmed, whether or not a warning was issued, Hamas will be held responsible. Accepting this interpretation would mean that there are no restrictions whatsoever on Israeli action and that whatever method it chooses to respond to Hamas operations is legitimate, no matter how horrifying the consequences” (pg. 48, emphasis added). B’Tselem is again showing that it has no understanding of military operations. Contrary to the NGO’s cynical and nonsensical claim, there are, indeed, “restrictions…on Israeli action.” All potential strikes go through an extensive review process to determine legality including ensuring that the strike complies with the principles of distinction and proportionality. If the attack does not comply with these standards, it is not carried out. As mentioned, the IDF also has a detailed warning system in place. Also, “horrifying” is not a legal standard. Contrary to B’Tselem’s apparent granting of impunity to Hamas, because of its co-locating weaponry and fighters in civilian areas and its conducting of indiscriminate attacks on Israeli civilians, Hamas is liable for corresponding casualties in Gaza. This responsibility is irrespective of Israeli actions.

Misidentifications – Ramifications of B’Tselem’s Lack of Access

B’Tselem also lacked direct access to Gaza, instead presenting unverifiable “testimonies” from purported victims and eyewitnesses in Hamas-controlled territory, mixed with other data that originated with the Hamas Ministry of Health in Gaza. As a result, B’Tselem has presented faulty information on civilian casualties in alleged attacks against “families bombed at home.” Independent studies have identified at least 14 combatants present in such incidents, whom B’Tselem misleadingly portrayed as innocent civilians:

Combatants Identified by B’Tselem as Civilians (as identified in B’Tselem’s “Families Bombed at Home ” infographic)

In “Black Flag,” B’Tselem lists ‘Omar Mahmoud Lutfi al-Haj, age 20, among the members of a family killed in July 2010. However, B’Tselem does not mention that he was a member in the al-Qassam Brigades.

B’Tselem is irrelevant

In the concluding paragraphs of “Black Flag,” B’Tselem acknowledges that “Fighting Hamas is, in fact, extremely challenging: How can military targets be distinguished from civilian objects in these circumstances? How is it possible to avoid harming civilians who are not taking part in the fighting, when Hamas operatives fire at Israel from within populated areas?”

However, after spending 49 pages detailing how, in its opinion, Israel’s approach was insufficient, B’Tselem refuses to offer constructive solutions: “B’Tselem does not purport to offer the Israeli government or the military any operative plans for conducting armed conflict in Gaza: that is not the role of a human rights organization. The government is responsible for responding to these challenges in ways that maintain humanity and uphold the law.”

Given that the Israeli army’s actions were consistent with international legal standards, and B’Tselem has failed to demonstrate otherwise, the burden is on B’Tselem to provide realistic and effective alternatives if it wants the military and government to pursue different policies and tactics.

Funding for B’Tselem

In August 2014, B’Tselem received “emergency funding ” from Denmark, the Netherlands, Sweden, and Switzerland (“the Secretariat ”) for “documentation and investigation efforts…for the purposes of assisting and supporting national and international mechanisms.”

Other funders in 2012-14 include European Union, France,DanChurch Aid (Denmark ), Diakonia (Sweden ), Norway, Christian Aid Ireland, EED (Germany ), UNICEF, Catholic Relief Services (US ), World Vision, ICCO (Netherlands ),Trocaire (Ireland ), and UK. (See chart below for detailed funding information).

In 2008-2013, the New Israel Fund (NIF) authorized grants worth $1,381,969 to B’Tselem (2008, 2009, 2010, 2011,2012, 2013 ).

Foreign donations based on reports to Israeli Registrar of Non-Profits (amounts in NIS)

Conclusion: Giving Hamas a Free Pass

In its zeal to blame Israel and senior Israeli government officials, B’Tselem absolves Hamas of any responsibility for its actions in endangering the civilian populations of both Gaza and Israel. This is completely inconsistent with the group’s claims of promoting human rights and combating impunity.

B’Tselem’s irresponsible reporting and failure to hold Hamas to account will only further endanger civilians in Gaza and Israel. The absurd argument that Israel cannot target Hamas fighters at home will only encourage terrorists to store more weapons, launch more rockets, and conduct more military operations from within homes and mosques, knowing that B’Tselem and other NGOs will help in its propaganda efforts to blame Israel for the consequences of any resulting civilian casualties.