B'Tselem's website lists the name of the fatality, the person's age and place of residence, the date and place of death, and the agent that caused the death. The classification is based on the principles of international humanitarian law, which distinguishes between combatants and civilians and between an attack carried out by state agents and attacks carried out by independent organizations or private individuals. As a rule, Palestinians in the West Bank and the Gaza Strip are classified as civilians, in part because Palestinian combat there is not carried out by an organized army of a sovereign state. However, our lists distinguish between civilians who took part in hostilities, and thus lost the protection given to civilians not involved in the hostilities, and civilians who were completely uninvolved in the hostilities.
In May 2012 B’Tselem decided to stop addressing the question of participation in combat, with respect to Palestinians killed in the West Bank. As long ago as 2000, B’Tselem opposed the sweeping definition of what was happening in the territories as “armed conflict.” Nonetheless, while in the past there were complicated incidents in the West Bank that might have met the definition of “combat incidents,” in recent years the incidents meeting that definition have been almost nil. Hence, B’Tselem has decided that, with regard to all Palestinians killed in the West Bank after Operation Cast Lead, the notion of “participation in hostilities” will no longer be addressed; instead, a short factual description of the circumstances of the death will be provided.
B’Tselem records Palestinian fatalities according to the following four classifications. In 2008 the classifications were redefined. Consequently, Palestinians killed before Operation Cast Lead are classified under the old definitions and Palestinians killed during and after the operation are classified by the new definitions.
- Took part in hostilities: Up until Operation Cast Lead - persons directly involved in hostilities at the time they were killed (for example, a person on the way to fire a rocket, to shoot soldiers, or detonate an explosive belt in the midst of civilians, during the action itself, and on returning from the action).
- Took part in hostilities: As of Operation Cast Lead - persons directly involved in hostilities when killed or else persons fulfilling a continuous combat function.
- Did not take part in the hostilities - persons who were not participating directly in hostilities at the time they were killed.
- Unknown if took part in the hostilities - In some cases, B'Tselem was unable to collect sufficient information, or else the existing information was insufficient to determine whether the person participated directly in the hostilities, and if so, the nature of the person's involvement. In these cases, the list states “unknown” with respect to whether the person took part in the hostilities.
- Subject of targeted killing - These are persons whom the security forces deliberately killed in the framework of a targeted-killing operation. These persons are recorded in a separate list because the decision to kill them was based on confidential intelligence, and in some case B’Tselem cannot determine with certainty whether or not the person took part in the hostilities.
Since Operation Cast Lead, which began on 27 December 2008, B'Tselem has based its determination of whether the person killed was taking part in the hostilities, among other factors, on the new approach of the International Committee of the Red Cross regarding the direct participation of civilians in hostilities.
Under international humanitarian law, civilians are entitled to protection and may not be the object of an attack, “unless and for such time as they participate directly in hostilities.” The study initiated by the ICRC was intended to clarify the circumstances in which a civilian loses special protection and is deemed to have participated directly in hostilities. The final report, which is based on six years of activity by work groups composed of experts in international humanitarian law, states that persons belonging to two categories lose the protection given to civilians in an armed conflict between a state and an organized armed group:
- 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.
- 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).
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.
The police officers that Israel killed only because they belonged to the Palestinian Police are not included in any of these categories. Israeli officials explained during the course of Operation Cast Lead that it was Israel's approach that all members of the Palestinian Police had participated or would in the future participate in hostilities against Israel, making them legitimate objects of attack. B'Tselem doubts whether the Palestinian Police, as an institution, can be considered a combat force in the sense that its members carry out ongoing combat action. In light of the presumption that persons are civilians who may not legitimately be attacked, it seems that, lacking unequivocal evidence that they participated in hostilities, they were not legitimate objects of attack. However, since B'Tselem does not have sufficient information on the functions of the Palestinian Police and its connection with the organized armed groups, it cannot be stated with certainty whether the police officers were a legitimate object of attack. For this reason, B'Tselem established a separate category for Palestinian police officers killed by Israel.
The fact that a person killed was a member of any particular Palestinian organization does not, in and of itself, prove that he took part in the hostilities or that he lost the protection given him as a civilian. Only persons who fulfilled one of the functions specified in the definition of “continuous combat function” is deemed to have taken part in hostilities.
The information on Palestinian fatalities is based on B'Tselem's investigation into the circumstances of the death in each case. As part each investigation, B'Tselem collects official documents (copies of identification documents, death certificates and medical records) and also compiles a report on the basis of information provided by witnesses and relatives. B’Tselem cross-checks its information with IDF Spokesperson announcements, information posted on websites and blogs of Palestinian armed groups, information gathered by Palestinian and international human rights organizations, and media reports. In some instances, the investigation includes detailed eyewitness accounts, relevant video footage or photos, or other additional information.
B'Tselem emphasizes that publication of the name of a person among the list of fatalities or mention that the person was a civilian or, alternatively, was killed while taking part in hostilities does not indicate that the agent causing the death violated the law and does not prove this person's innocence. No legal or ethical conclusion be drawn from such publication. However, in every case in which a civilian not taking part in hostilities is killed, the security forces bear an obligation to conduct an independent and effective investigation of the circumstances of the killing in order to verify that the security forces acted lawfully. If it is found that they acted in breach of the law, measures must be taken against them in accordance with the severity of the act. Toward this end, B'Tselem provides the relevant authorities with all the information in its possession.