CORRESPONDENCE WITH B’TSELEM
In chronological order
Letter number 1.
Opening letter from Sarit Michaeli
- Press Officer, B'Tselem
At 4/5/2011,11:10 AM,Tuesday,
Sarit Michaeli wrote:
Dear Mr. Ostroff,
A recent interview you gave to Yedioth Ahronoth
alerted my attention to your claims regarding B’Tselem’s
Cast Lead casualty statistics. The newspaper quotes you as stating that B’Tselem classifies Palestinian rocket launchers
who were killed outside of combat as civilians.
In your “open letter” to Justice Goldstone, you state that:
bothered by an aspect of the methodology used by B'Tselem whose reports greatly influenced your final report. In an explanatory
note on its web site B'tselem states "Persons who do not fulfill a 'continuous
combat function' are a legitimate object of attack only when taking a direct part in hostilities (for example, on their way
to fire a rocket, during the firing of the rocket, and on the way back)" and B'Tselem adds that wherever there is a doubt
regarding the actions of a person, the doubt works in the individual's favor, and it is forbidden to target the person for
attack. Does this imply that for example, a combatant who has fired fifty rockets into civilian areas of Israel,
and who does so on a regular basis but is killed during a lull while enjoying a cup of coffee in a restaurant, is treated
in B'Tselem's records and in your report as a civilian casualty?
B’Tselem’s classification of Cast Lead
casualties follows the approach delineated by the ICRC, the exact same one you quote in the previous paragraph. Sadly, your
partial quote provides only the second part of our detailed explanation. Here is the full quote:
persons belonging to two categories lose
the protection given to civilians in an armed conflict between a state and an organized armed group:
1. Persons who fulfill
a “continuous combat function.” Such persons are legitimate objects of attack even if they are not participating
directly in hostilities at the moment of attack. This category includes persons whose ongoing function involves the preparation,
execution, or command of combat acts or operations. An individual recruited, trained, and equipped by such a group to continuously
and directly participate in hostilities can be considered to assume a continuous combat function even before the person carries
out a hostile act. On the other hand, persons who continuously accompany or support an organized armed group but whose function
does not involve direct participation in hostilities maintain their status as civilians and are not legitimate objects of
attack. Thus, recruiters, trainers, and funders may contribute to the general war effort, but as long as they do not directly
participate in hostilities, they are not a legitimate object of attack.
2. Persons who do not fulfill a “continuous
combat function” are a legitimate object of attack only when taking a direct part in hostilities (for example, on their
way to fire a rocket, during the firing of the rocket, and on the way back).
It takes a major effort to draw from this
text the rhetorical question “Does this imply that for example, a combatant who has fired fifty rockets into civilian
areas of Israel, and who does so on a regular basis but is killed during a lull while enjoying a cup of coffee in a restaurant,
is treated in B'Tselem's records and in your report as a civilian casualty?”. No reasonable interpretation of our
painstaking methodology can classify a person fitting this description killed in operation Cast Lead as a civilian. Your quote
in Yedioth, if indeed correct, is simply false.
One of the most basic tenets of international humanitarian law is that
in case of doubt, a person should be offered civilian protection. It has been enshrined in article 50 (1) of the Geneva protocol, which is customary law. This is not a B’Tselem
invention. It is a fundamental principle of the laws of war.
It would be appropriate for you to correct your false
and misleading statements about B’Tselem’s casualty statistics.
Sarit Michaeli - Press Officer
Letter number 2.
MY OPEN RESPONSE Sent: Tuesday,
April 05, 2011 5:09 PM
To: Sarit Michaeli
Subject: An open reply to B'Tselem's re casualty statistics
An open reply to B'Tselem re casualty statistics
Dear Sarit Michaeli,
you very much for your email. I 'm very pleased to have this opportunity to clarify what appears to me as B'Tselem's impractical
classification of combat casualties.
You ask me to correct what you incorrectly allege to be my false and misleading
statements about B’Tselem’s casualty statistics and I ask you in turn to withdraw this damaging allegation especially
since you confirm that I correctly quoted B'Tselem's classification of combatants as "Persons who do not fulfill a 'continuous
combat function' are a legitimate object of attack only when taking a direct part in hostilities (for example, on their way
to fire a rocket, during the firing of the rocket, and on the way back)". This is troubling because, as I wrote, it implies
that for example, a combatant who has fired fifty rockets into civilian areas of Israel, and who does so on a regular basis
but is killed on a day off during a lull while enjoying a cup of coffee in a restaurant, is treated in B'Tselem's records
as a civilian casualty.
Your criticism that I did not provide a complete quote is out of order as I provided a link
to the complete B'Tselem page. In any event the additional paragraph that you provide does not in any way alter the general
tone. In fact it increases my concern by granting protection to recruiters, trainers, and funders who contribute to the general
war effort, as long as they do not directly participate in hostilities.
If you have taken any interest in the operations
in Libya and in Afghanistan
since Obama has had the op[portunity to apply his humanitarian principles, you must acknowledge that with the best intentions
in the world, it is impossible to avoid collateral damage and civilian casualties. Civilian casualties in Afghanistan have increased, according to the latest statistics from the UN creating the highest total since 2006 for civilian deaths- the continued annual rises has seen over 8,000 killed
in the past four years.
If President Obama has been unable to prevent civilian casualties, the standards that
B'Tselem presumes to impose on Israel are seen to be completely unrealistic,
especially as in close combat like in Gaza, it is almost impossible
to distinguish between civilians and combatants. With regard to casualties the distinction cannot be made with any semblance
of accuracy and in my opinion, it is highly irresponsible for an organization like B'tselem to present ex post-facto
estimates based on flimsy evidence as if they represent factual statistics, especially where it is known that such information
will be used in making grave decisions that will affect entire states.
I repeat. Please withdraw your unfounded allegation
that I made false and misleading statements.
I would appreciate your further clarification of the methodology you use
in distinguishing between civilian and combatant casualties ex post-facto.
Letter number 3.
PM,Wednesday, Sarit Michaeli wrote:
As I am sure the issue is not one of reading comprehension, I shan’t try to explain again B’Tselem’s
clear policy on classification. Suffice to request that you furnish us with an example of a real, not imaginary, Palestinian
killed during operation Cast Lead that fits your description.
Please provide the name of, for example:
“a combatant who has fired fifty rockets into civilian areas
of Israel, and who does so on a regular basis but is killed on a day off during a lull while enjoying a cup of coffee in a
Whom we classified as a civilian not involved in the hostilities. We shall be more than willing to correct
4. MY RESPONSE
From: Maurice Ostroff Sent: Thursday, April 07, 2011 4:13 PM
Subject: RE: An open reply to B'Tselem's re casualty statistics
Hello Sarit Michaeli
you for your prompt response.
I regret that I do not understand your request for a name, as the example I quoted was
obviously purely hypothetical
Contrary to your statement that the issue is not one of reading comprehension, it is
exactly that. When you make a public statement on your web site, especially an important clarification on which vital judgments
are made, it is essential that all who read it receive the same message.
Am I wrong in understanding that, according
to the clarification on your web site, a combatant in civilian dress who has fired fifty rockets into civilian areas of
Israel, and who does so on a regular basis but is killed on a day off during a lull while enjoying a cup of coffee in a restaurant,
would be classified as a civilian casualty?
I repeat. Please withdraw your unfounded allegation that I made false and
You are wrong in this understanding.
As person adhering to your hypothetical example is classified as fulfilling a continuous combat function, and therefore classified
as having taken a direct part in the hostilities, just as is made patently clear in our statement.
Letter number 6
An open letter from Maurice Ostroff
to the B'Tselem press officer in response
to her complaint
that I unfairly criticized
B'tselem's statistics during my interview with
April 15, 2011
Dear Sarit Michaeli
I refer to our previous correspondence initiated by your criticism of a statement I made in my recent interview with Yedioth
Ahronoth during which I said that B’Tselem classifies Palestinian rocket launchers who were killed outside of combat
as civilians. (Our complete earlier correspondence is reproduced in the right hand colum)
My admiration and respect
for the invaluable work B’Tselem aspires to do is regrettably tempered by skepticism about your methodology that results
in faulty conclusions. For example, I am concerned that inaccurate statistics about casualty figures sustained during the
Cast Lead operation that you provided to the Goldstone Mission, misled the mission and caused a great deal of unjustified
criticism of, and harm to Israel.
I refer again to the following slightly modified version of the hypothetical question I posed previously. A Gazan resident,
who does not wear a uniform and who occasionally (say once per week) fires a rocket into civilian areas of Israel is killed
while enjoying a cup of coffee in a restaurant 3 days after firing the previous rocket. In terms of your published clarification,
this man would clearly be classified as a civilian casualty by B’tselem’s definition which reads "Persons who
do not fulfill a 'continuous combat function' are a legitimate object of attack only when taking a direct part in hostilities
(for example, on their way to fire a rocket, during the firing of the rocket, and on the way back)"
I have difficulty in accepting your explanation that this casualty would fall under the definition of “Persons who
fulfill a “continuous combat function” and who are therefore legitimate objects of attack even if they are not
participating directly in hostilities at the moment of attack” for the simple reason that the rocket launchers appear
to belong to separate groups, they don't wear uniforms and their activities occur at sporadic times, not on a CONTINUOUS basis.
And even if there were some doubt in your mind that this individual should be classified as a combatant, your classification
is governed by the injunction “Wherever there is a doubt regarding the actions of a person, the doubt works in the individual's
favor, and it is forbidden to target the person for attack.”
When it comes to accepting eyewitness accounts, it is essential to bear in mind that these are known to be unreliable.
Many miscarriages of justice have been recorded due to incorrect witness testimony. In a paper “The reliability of eyewitness reports: the effect of accurate and inaccurate information on memory and
bias" Jennifer B. Scheer wrote “A considerable amount of research has established that exposure to leading or misleading
suggestions can dramatically influence the accuracy of eyewitness reports. This phenomenon, commonly referred to as the “misinformation
effect,” has been well documented in the literature and has implications for legal systems worldwide, which depend upon
the reliability of eyewitness testimony in their search for justice”.
In view of the well publicized information including video clips about intra-Palestinian killings, executions, torture
and violent assaults one must also consider the strong possibility that a substantial number of casualties attributed to Israeli
action were in fact Palestinians who were killed by Palestinians. One must ask how, when viewing casualty lists, you establish
with certainty whether an individual was slain by the IDF or by fellow Palestinians?
In your published statistics of fatalities during operation "Cast Lead" on which the Goldstone Mission relied, you claimed
with astonishing certainty that exactly 18 Palestinians were killed by Palestinians. But your exact figures are contradicted
by a Ma’an report on February 2, 2009 which listed 181 names of those who were killed, maimed, beaten or tortured by Hamas during the Israeli war on Gaza.
On January 26, 2009 B'Tselem reported on its web site that it was unable to fully investigate reports of extra-judicial killings by Hamas or to provide the exact number of the people
killed in these events, or their identity. on another page of your site, you claim with certainty that no Palestinians were
executed by “the Palestinian Authority” or by the Hamas Government.
According to a Y-Net report of April 19, 2010, the US-based Human Rights Watch has said Hamas killed at least 32 alleged informers and political opponents during and after
the 2008-2009 Gaza war with Israel and maimed dozens of others and other Human rights groups say 14 people were known to have
been sentenced to death by military courts in Gaza last year after being convicted on charges of "collaboration," treason
According to the Jewish virtual Library (JVL), on January 26, 2009 a PA court sentenced a Palestinian “collaborator” to death - its eighth death sentence in
two months and that one day before, one of B’Tselem’s own workers Haidar Ghanem , who had been sentenced years
before, was executed by Hamas.
The JVL also states that Palestinian sources reported that during the Israeli operation in Gaza, Hamas forces went out
to catch Fatah members who were breaking their house arrest. One Fatah man was shot and killed in front of his children for
taking one step outside of his house. The Palestinian daily newspaper, Al-Hayat Al-Jadida, reported on a Gazan girl whose
father was killed by Hamas gunmen. Additionally, Hamas shot and wounded nine other members of her family including several
Those alleged Fatah “collaborators” who were not killed were shot in the legs. Hamas escalated its attacks
on fellow Palestinians after Israel called a unilateral cease-fire on January 18, 2009. According to some Fatah sources, nearly
100 Fatah activists were killed after the cease-fire was declared. Fatah and Hamas have in the past set off bombs in each
other’s cars and houses; they accuse each other of “colluding” with Israel and they have shot each other
in the city center and pushed each other from rooftops of high rise buildings.
Arab news stations have also reported on the violence. Al Jazeera television interviewed PLO Executive Committee Secretary
Yasser Abd Rabbo who accused Hamas members of patrolling Gaza like “packs of animals” in order to find and execute
suspected collaborators. For comparison, during the first intifada, the number of Palestinians murdered by their fellow Palestinians
exceeded the number of Palestinians who died in clashes with Israeli soldiers - nearly 1,000 Palestinians died by the hand
of their own people.
It is also fair to ask how you have the confidence to quote what you claim as precisely accurate numbers of casualties
in specific categories in the chaotic conditions that prevail during and after a war. The very fact that you quote definite
numbers with no qualification about a presumed possible percentage error makes their credibility suspect.
May I suggest with due deference that the key to B’Tselem’s apparent lack of balance in reporting is to be
found in the definition of the organization on its web as more of a political rather a human rights organization. Your website states the political aspect plainly, "B'Tselem acts primarily to change Israeli policy in the Occupied Territories and ensure that
its government, which rules the Occupied Territories, protects the human rights of residents there and complies with its obligations
under international law". No mention is made of monitoring human rights abuses by Palestinians like the continuing indoctrination
of schoolkids towards violence and the deprivation of basic POW rights to Gilad Shalit.
B’Tselem’s credibility would be tremendously enhanced if it concerned itself less with the political object
of changing Israel’s policy and more with protecting the human rights of all parties.
Letter no 7
from Sarit Michaeli - Press
At 4/17/2011,06:35 PM,Sunday, Sarit
Dear Mr. Ostroff,
As I tried to explain in my previous emails, the classification of Palestinian
casualties depends on their degree of involvement in the activities of Palestinian armed groups. People who fulfill a continuous
combat function in an armed group will be classified as having participated in the hostilities even if they were killed outside
The hypothetical example you have provided is bogus. The fighting in Gaza
is conducted by organized armed groups who have organized command structures and memberships. If you can give a real world
example of anyone befitting this fantastic description who was killed and classified by B’Tselem as a civilian, please
do so. If not, please refrain from propagating false accusations against us.
Regarding your various sources on Palestinians
killed in the intra-Palestinian violence, your point is unclear to me. B’Tselem’s website actually lists more
casualties than the sources you provide (B’Tselem’s 18 vs Ma’an’s 11, B’Tselem’s 37 after
Cast Lead +18 During Cast Lead vs. HRW’s 32). We have actually counted many more Palestinian casualties of Hamas’
violence, so based on your logic we deserve praise for our efforts.
Letter number 8
Maurice Ostroff replied on April 22, 2011
Dear Sarit Michaeli,
Thank you for your email.
Before I deal with it, I ask in all seriousness whether B'Tselem is more focused on its declared political program of acting
primarily to change Israeli policy than on protecting human rights of all parties. I ask this question because of the following
declaration on your site
- "As an Israeli human rights organization, B'Tselem acts primarily to
change Israeli policy in the Occupied Territories and ensure that its government, which rules the Occupied Territories, protects
the human rights of residents there and complies with its obligations under international law".
From the above unbalanced text, it appears that you insist that only Israel complies with its obligations
under international law and that you have no interest in observing whether or not Hamas or Fatah do so.
with your email, the hypothetical example that I quoted cannot be described by any stretch of imagination as "bogus". Rather
it is an assumed situation that is likely to occur in the circumstances that you investigate continuously. It is postulated
in order to understand how you would deal with it, if and when such a situation occurs as it well may. In fact it should be
of more interest to B'tselem than to me, because considering hypothetical or assumed situations, testing their logical conclusions.and
planning how to deal with them is an essential component of sound project management and certainly should not be avoided in
an organization like B'Tselem with its huge ethical responsibilities.
circumstances, your refusal to answer my question unless, in your words, I provide "a real world example of anyone befitting
this fantastic description" is unacceptable and I look forward to an unequivocal reply to the straightforward question as
to how you would classify the theoretical casualty I described.
I would also appreciate your explanation of
the method you use to distinguish between Palestinians who were killed by Palestinians and those who were killed by the IDF.
As your web site lists exactly 18, not approximately 18, it indicates that you have established this figure with certitude under very difficult
after battle conditions. I therefore ask how you explain the difference between your figures and the 181 names quoted by Ma'an
of those who were killed, maimed, beaten or tortured by Hamas during the Israeli war on Gaza as well as the other contradictory
figures I mentioned in my previous letter. And how do you reconcile the certitude with which you quote casualty figures, with
your statement on January 26, 2009 that you were unable to fully investigate reports of extra-judicial killings by Hamas or
to provide the exact number of the people killed in these events, or their identity.
I have not been able to find any
statistics on your web site about Palestinians who were beaten, tortured, knee-capped or otherwise maimed by Palestinians.
If they are dealt with on your site please direct me to the relevant page.
last paragraph in which you ask for praise for counting more Palestinian victims of Hamas than quoted by others, demonstrates
a fundamental misunderstanding of my concern about your statistics. I am not interested at all in gaining debating points.
What I am very concerned about is that, because crucial decisions are made based on information that you provide, it is imperative
that, like justice, such information not only be substantiated, accurate and balanced but seen to be substantiated, accurate