Tuesday, September 20, 2016

  • Tuesday, September 20, 2016
  • Elder of Ziyon
B'Tselem was always an anomaly among human rights NGOs.

Unlike HRW, Amnesty, Oxfam, DCI-P and others, B'Tselem doesn't lie outright. It grounds its opinions on some semblance of reality, although it shares the same problem that the other NGOs have in that it decides on its anti-Israel opinions before it starts its investigations and skews the results to fit its foregone conclusion.

B'Tselem just released a major new report, called "Whitewash Protocol: The So-Called Investigation of Operation Protective Edge." It makes a number of major charges.

One is that the Military Advocate General of the IDF faces an inherent conflict of interest:

The MAG – who is in charge of investigations within the military – is faced with an inherent conflict of interests when it comes to the investigation of these acts. On the one hand, he was responsible for providing the military with legal counsel before the fighting, worked closely with military personnel on the ground throughout the fighting and signed off on their policies. On the other hand, he is now tasked with deciding what cases merit an investigation and what measures will be taken upon its completion. In cases in which suspected breaches of law relate to orders he personally approved, the MAG would have to order an investigation of acts he is responsible for, and, should senior officers be investigated, an investigation against himself, or his direct subordinates.
I would argue that this is in fact not true. The MAG sets the policy that the IDF must adhere to, and the officers and soldiers are then tasked with adhering to the policy. It is not unreasonable for the entity that creates the policy to be the one to audit the actions of the army against that same policy. (The command structure of the MAG is completely independent of the rest of the IDF.)

B'Tselem argues that the MAG was asked specific questions during Operation Protective Edge about activities that the MAG would later have to decide on the legality of the actual proposed operation, and therefore it would be a conflict of interest for the MAG to investigate an issue if the soldiers followed its specific advice in a certain case. However, the MAG is not tasked with deciding whether IDF policies adhere to international law, but whether its actions do. If the MAG was tasked to investigate the legality of the policies themselves, yes, that would be a conflict of interest.

The bizarre thing is that after making the accusations of conflict of interest, B'Tselem sort of agrees that it has no proof for this charge, in a section that few people will actually read:
Since in any case the investigations carried out by the MAG Corps do not address policy or directives, the MAG’s conflict of interest with respect to his involvement in these issues remains theoretical. However, a conflict of interest may arise if there is a suspected IHL violation in a case that was defined as “exceptional”, and if the MAG or his representatives were involved in approving it. B’Tselem has no information as to whether there are any such cases.
So B'Tselem is accusing MAG of impropriety and a conflict of interest, but only on a theoretical level.

How devastating!

Another of B'Tselem's major issues is that the IDF is violating the international humanitarian law of proportionality. Yet it devises an entirely new definition of the concept:

The MAG’s conclusion that all the attacks he examined were lawful in that those responsible for them could disregard the harsh outcomes of dozens of other attacks that took place during the fighting has a far reaching implication that applies to all strikes carried out during the operation: It absolves every level of officials involved in the attacks – from the prime minister, through the MAG himself through to the soldiers who ultimately fired – of the duty to do everything in their power to minimize harm to civilians. In fact, the MAG sets the bar very low in terms of what is required of those responsible for the attacks – including senior military officers and the MAG (who are not under investigation in any case) – by doing no more than examining what they knew in practice, while entirely disregarding the question of what they should have known, including the obligation to learn from their own experience.

Consequently, the MAG’s determination that the attacks he examined did, in fact, meet the proportionality requirement is also cast into doubt. This principle is based on balancing the assessment by those responsible as to the anticipated military advantage against their assessment as to the anticipated harm to civilians. Yet when the projection as to harm is made while knowingly disregarding the result of nearly identical strikes carried out in the days prior to the making of the assessment, namely that dropping a bomb in the middle of a residential neighborhood could result in many more civilian deaths than anticipated; that the warnings the military gives are not always efficient and that the intelligence information is sometimes incomplete or inaccurate – then their assessments of anticipated harm to civilians become hollow and worthless.
This is not what international law requires. The military commander, in the heat of the battle, makes the decision based on the information he or she has available to him or her at the time. B'Tselem is demanding that the commander to also anticipate what he doesn't know!

If military intelligence says that a building is empty or almost empty, that is a major factor that the commander has in making decisions. It cannot be otherwise in a battle. The fact that sometimes the intelligence was wrong is not a reason to mistrust intelligence which is objectively pretty accurate most of the time. Even B'Tselem's own analysis of the people killed in buildings during the war shows that in nearly all the cases of many casualties, there was a valid military target inside. That's pretty good intel!

To demand that a military commander second guess his intelligence reports is beyond absurd. There was not a pattern of mistakes, as B'Tselem implies. There were some, and there will be some in any war.

Again, B'Tselem shows a tiny bit of honesty:
Like any other legal rule, IHL is also up for interpretation. Interpretation is also obviously influenced by the worldview of the person offering it, including the MAG, yet as longs [sic] as it is reasonable and reflects the purpose of the law it is considered legitimate.
But then it goes beyond international law and even morality into its own universe:
However, an interpretation whereby such extreme harm to civilians (as was seen in Operation Protective Edge) is lawful and is not considered “excessive” – as the MAG argues – is unreasonable, legally wrong, and founded on a morally repugnant worldview.
One only has to read the MAG reports to see that calling their worldview "morally repugnant" is itself morally repugnant. The MAG spends thousands of hours looking at individual cases, prioritizing the ones where there were the highest number of casualties. It finds, based on actual research, that in most cases the actions of the IDF were legal. B'Tselem wants to ignore the specific cases - because it has no evidence to contradict any one of them - and instead does some hand-waving and spews out "But look at how many people died! It must be illegal, even if we can't show why!"

Ironically, B'Tselem's own statistics prove that the IDF targeted terrorists and show that most of the civilians who were killed lost their lives because of Hamas' human shield policy, not Israel's disregarding international law.

B'Tselem pretends to be honest - and compared to HRW and  Amnesty, it is - but in the end, it still bases its analysis on bias, not on facts.




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