Analysis: B'Tselem, IDF positions closer than ever
Legal seachange: B'Tselem's report on Operation Pillar of Defense has clearly taken into account past criticism of its and other human rights groups' reports, as well as the IDF's evolved position.
By YONAH JEREMY BOBIAF strike in Gaza during Operation Pillar of Defense 370(photo credit: REUTERS/Ahmed Jadallah)
From B’Tselem’s report on Operation Pillar of Defense published Thursday, one can see that a seachange has occurred in the legal debate surrounding IDF armed-conflict- related operations. The upshot is that B’Tselem and the IDF are shockingly closer in their positions than ever before – though neither side is likely to admit it publicly.The report has clearly taken into account both past criticism of its – and other human rights groups – reports and the IDF’s evolved position.What is new in the report?Unlike Human Rights Watch’s recent reports, B’Tselem waited until the IDF produced its own report last month, and it in its own statement.Although it still focuses on Israel, this time it devotes more time to reviewing Hamas’ war crimes than in the past.Also, the terminology dealing with Hamas and the IDF clearly reflects that Hamas’ violations are beyond debate as they are intentionally aiming rockets at civilians, whereas most of the statements about the IDF are unprecedentedly nuanced.Instead of alleging clear war crimes violations, the language is much more in the vein of IDF actions “raise suspicions” of violations.The opening of the analytical section on IDF actions says it straight out that unlike with Hamas, arriving at conclusions about the IDF’s actions “is not as simple.”Instead of only using the more charged words “assassinations” and “militants” for IDF air strikes on Hamas or Islamic Jihad members who were hit while not actually “on the battlefield,” the report also uses the more neutral and technical terms of “targeted killings” and persons “who took a direct part in hostilities.”Even the report’s headline in attacking the second four days of the operation as problematic, implicitly recognizes the early days as non-problematic or less so.
Monitor, while slamming the report for many of its interpretations of the law of armed conflict in complex fighting situations, recognizes its admission that B’Tselem cannot fully assess Palestinian allegations.The report meticulously acknowledges the challenges the IDF faces when Hamas mixes in with civilians. It records the army’s efforts, both both general and specific – with narratives recounting telephone calls from security personnel to get civilians to evacuate their houses – to avoid civilian casualties.Part of this acknowledgement shows that the IDF, both from its own self-motivated process of “learning lessons” and from external critiques from groups like B’Tselem, significantly adjusted its procedures in Pillar of Defense, as opposed to Operation Cast Lead in 2008-2009.Another sign of the IDF’s evolved position is that its initial report on Pillar of Defense came out only five months after the operation – practically light speed compared to how quickly reports were issued after past operations.This haste may also be one reason why B’Tselem waited to publish its report until it could include more information from the IDF.Finally, what is left to debate between the sides is far more nuanced.Instead of B’Tselem’s positions being: “Everything you did was a war crime” and the IDF’s: “We were perfect,” the IDF has already admitted that some of the attacks included intelligence mistakes as to the identity of people being targeted and the number of civilians nearby.B’Tselem’s accusations are that the IDF’s warnings are not effective enough, that its definition of what is a legitimate military action is too broad and that its report was too vague on details.These are respectable robust debates to have between the IDF and human rights groups, using legal and neutral language with no baggage; and since the IDF’s main job is to win wars and B’Tselem’s main job is to protect civilians, there would be no expectation that the two sides will ever completely agree.Regarding allegations that the IDF’s first report was vague, even former IDF international law division head Liron Libman previously told The Jerusalem Post that he thought the initial report was somewhat vague, although he said this might be accounted for by its fast publication, and he noted that there would likely be a follow-up report on open investigations.Though some gaps are still huge, it is difficult to deny that a seachange has occurred, and that the two sides are speaking a much more similar and nuanced language than ever before.
