[Elder Of Ziyon - Israel News] B'Tselem's interpretation of international law is wrong

B'Tselem released a report on the IDF's policy of striking houses during the Gaza war.

The first 36 pages of the report are meant to humanize the victims, in order to prime the reader to think that certainly Israel must be guilty of war crimes. Once B'Tselem greased the wheels, it tries to interpret international law in a biased and incorrect way.

The organization admits multiple times that it has no access to IDF intelligence as to why specific targets were struck, It only mentions that the IDF has not released the details of why it considered the houses targeted to have been legitimate targets. Without a single shred of evidence, B'Tselem claims that Israel was targeting people, not facilities.

Many Hamas military branch commanders – mid‐level and up – had, in effect, turned their apartments also into bases or operational headquarters where they received military intel and from which orders were issued to their subordinates, including orders for operations against our troops and for firing rockets at Israel […] During Operation Protective Edge, there was widespread use of private homes for concrete military purposes. There is no doubt that these are legitimate military targets under international law.

But that's not good enough for B'Tselem, which insists that unless the IDF tells them the specific intelligence that went behind the attacks, then B'Tselem's guesses must be more accurate:

It is possible for residences of operatives of Hamas or other organizations to be considered legitimate military targets, but to be defined as such, what they were actually used for must first be determined. IHL stipulates a twofold test for deciding whether a structure is a "military objective": the structure must make an effective contribution to military action, and harming it must give the attacking party a clear military advantage.

In spite of this, the IDF Spokesperson did not explain the connection between any of the houses attacked as specified in his statements and any military activity. The term "operational infrastructure" proves nothing in itself about any alleged military use of the residence. Its repetition does, however, serve to unmask the attempt by policymakers to lend an air of legality to such attacks.
 
The explanations the IDF Spokesperson and the MAG provided for the destruction of operatives' homes are unconvincing and appear to be no more than a cover‐up for the actual reason for the destruction – the identity of the occupants. In this sense, these strikes constitute dozens of cases of punitive house demolitions – prohibited in themselves – carried out from the air. 

 Somehow, the IDF's refusal to reveal sensitive military information has been transformed into B'Tselem's being able to read minds as to the real reason houses were targeted.

B'Tselem admits that it has no real information to make any determination:

The military refrains from giving the public the answers to these questions.  Therefore, in the vast majority of cases, B'Tselem cannot know what considerations underpinned the attacks. Some of B'Tselem's investigations did lead to conjectures regarding the reasons for an attack on a specific house, such as: the presence of a Hamas operative in the house at the time of the attack or several hours earlier; the fact that the homeowner's son was an operative – at one or another level of seniority – in an armed Palestinian group; or the firing of Qasam rockets from somewhere near the house. However, in the absence of an official statement from the military, B'Tselem cannot determine with certainty why a given house was attacked, whether it met the definition of a legitimate target and if so, whether the attack may be considered proportionate.  

Yet it makes its baseless charges anyway!

When it suits its purposes, B'Tselem says that Israeli intelligence in Gaza is top-notch, using that to prove that Israel should have known that civilians were likely to be killed:

[T]he military has powerful intelligence capabilities with respect to Gaza residents. Intelligence information made it possible for the military to know the precise location of people it intended to target. The Ground Forces journal mentioned above provided a detailed description of surveillance measures available to the military, including observation balloons, drones, and observation officers who analyze the findings.50 Given all this, whoever gave the orders to attack knew – or should have and could have known – about the presence of civilians at the site of the target.

However, if the IDF intelligence is so good, that implies that the IDF knows far more about the nature of the military target itself.

If the target is a legitimate military target, then the issue of likely civilian casualties is weighed against the value of the target. A reasonable military commander makes that decision under international law. B'Tselem is confusing its ignorance of what the commanders know with the idea that the commanders don't know any more than B'Tselem does about the value of the targets, and it makes up its own fiction about what they assume must have been the targets - Hamas and Islamic Jihad militants hanging out in crowded apartments, not seriously considering that they would have command and control centers hidden specifically in residential buildings.

Here is the crux of B'Tselem's conclusions:

[T]he issue at hand is what conclusions policymakers may draw from the conduct of Hamas and other armed Palestinian organizations. The above quoted statements by the prime minister and the chief of staff indicate they believe that Hamas and the military share the responsibility of taking precautions. For example, in 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. This interpretation is unreasonable, unlawful, and renders meaningless the principle that IHL violations committed by one party do not release the other party from its obligations toward the civilian population and civilian objects.63

Yet this interpretation is designed to block, a priori, any allegations that Israel breached IHL provisions. It focuses exclusively on policymakers' intentions, which cannot be examined as no official information is available, while completely ignoring the outcome, even when the same deadly results are seen time and again.  Several days into the fighting, decision makers surely would have had no doubts about the results to be expected from continuing the policy of attacking homes.

In light of all this, the argument that the house bombing policy is lawful must be rejected.

The highlighted area is completely wrong. Israeli military commanders must, under IHL, decide on the value of the target and also decide whether civilian casualties are proportionate given the value of the target. Under IHL, as we have seen, even a relatively low value military target - destroying the ability of the enemy to communicate for only a few hours - was considered so valuable that the killing of 16 civilians during the attack was not considered disproportionate. That's IHL,  B'Tselem's incorrect interpretation isn't.

There is one other salient missing piece of data that undermines B'Tselem's analysis. B'Tselem doesn't know how many targets Israel decided not to attack because of the likelihood that civilian casualties would be disproportionate to the value of the target. There might have been thousands of such targets, and the houses targeted might be a small percentage of the total possible targets in Gaza because they did have high military value. B'Tselem's accusations have a false assumption: that Israel acted in an unrestrained manner. But it cannot know that without knowing Israel's entire intelligence operations.

Anyone can make guesses. But if you are going to write a report that accuses a country of disregarding the lives of people for no good reason, you should not base this report on ignorance - ignorance that B'Tselem even admits.

To read the actual international law that underpins B'Tselem's false accusations, see my previous articles on the principle of distinction and the principle of proportionality. International law gives far more leeway to military commanders than B'Tselem is willing to admit.

To sum up: if someone told you that she bought a diamond ring for $3,000, you cannot say that she paid too much without examining the ring and knowing something about diamonds. But that is what B'Tselem is doing here: determining that Israel acted in a disproportionate manner without knowing what the actual targets were, how important they were, what international law says about proportionality and distinction - and then B'Tselem  makes the assumption that its ignorance of the facts is evidence.



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Posted By Elder of Ziyon to Elder Of Ziyon - Israel News at 1/29/2015 08:00:00 AM