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Quality data recording in Gaza, potentially evidencing genocide, frustrated by Israeli strikes – contravening International Court of Justice orders

On January 26, 2024 the world stood transfixed as the International Court of Justice (ICJ) issued six provisional measures for Israel to follow in its Gaza military operations. One of these has received scant attention: “The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip.”

Israel appears to be violating this order through its attacks on hospitals, attacks that have severely disrupted what was previously a well-functioning and rigorous casualty recording system. Israeli forces must amend their rules of engagement to allow the rebuilding of this crucial capacity.

From the beginning of the war controversy has swirled around Gaza Ministry of Health (MoH) death numbers. Their most extreme detractors, including President Biden, dismiss them out of hand. Other, including myself, have defended them on the grounds that, in previous rounds of conflict, MoH figures turned out to be consistent with accounts slowly and painstakingly compiled by respected human rights organisations. Reportedly, the Israeli military itself takes the MoH figures seriously. Some critics even concede that in past conflicts they have been consistent with official Israeli numbers (Epstein, figure 1). This time, though, might be different.

The October 26 release by the MoH of a list of nearly 7,000 people it claims have been killed, complete with names, ages, sexes and ID numbers, was a watershed event in death-toll documentation for the Gaza war. The sheer detail packed into this data file immediately imbued it with potent credibility. Israel maintains the population register for Gaza so it can easily check the published ID numbers, which it originally assigned, to verify that these names were, in fact, real people. Living people wrongly put on the list would also eventually be exposed.

Further validation for the October 26 release comes from a comparison of the upward trajectory of the cumulative deaths per 1,000 of the Gaza population according to the MoH figures with cumulative deaths per thousand of UNOCHA staff; the two curves progress upwards almost in lock step for the first three weeks of the war. Still more validation comes from a comparison, made by the NGO Airwars, of named deaths. Airwars have recorded numerous specific incidents with named deaths listed on the MoH data file. Airwars finds that the MoH system captured 63% of named Airwars-identified deaths during the period covered by both sources (meaning Airwars is finding names of the dead that are not captured by the Gazan MoH).

It is not surprising the Gazan MoH are not capturing all deaths. The MoH casualty recording system originally consisted of four people in Al Shifa hospital. This quartet entered into a spreadsheet all fataility information that had been passed to them from hospital morgues. This system captured victims who passed through hospitals but not, for example, those killed that did not go through a recorded system – such as those still lying buried under rubble. Nevertheless, the evidence presented above suggests this system was successful in capturing many of the deaths witnessed during the first month of the war.

Unfortunately, since those opening weeks casualty recorders have since, gradually, lost touch with lethal events on the ground. The very violence they sought to capture has been felt by them. The MoH system itself was severly disrupted. As Reuters reported last December on the claims of Omar Hussein Ali, director of the Ramallah ministry’s emergency operations centre: “of the four officials who ran the Shifa data centre, one died in an air strike that hit the hospital while the other three went missing when Israeli forces seized the premises as an alleged Hamas hideout.”

The MoH reconstituted its casualty recording operation to Nasser hospital in the south but by early December the north was no longer regularly reporting in to Nasser. By late December, the MoH system for capturing evidence of the mounting death toll was so compromised that a mere six of 36 hospitals were operating. Israel’s February 15 raid on Nasser hospital dealt another blow to MoH casualty recording operations in Gaza.

A recent paper by Gabriel Epstein for The Washington Institute for Near East Policy – ‘How Hamas Manipulates Gaza Fatality Numbers’ – confirms this degradation of data in Annex A. The quality of MoH-released death numbers tracks the downward trajectory of the MoH data-capture system described above. At the beginning of the war, the MoH provided daily breakdowns into men, women, children and the elderly, to say nothing of the detailed October 26 data file. The MoH, however, were then to release nothing whatsoever between November 11 and December 1. They then began releasing only single-number totals, without breakdowns, on most days. It is unlikely that the MoH now possesses death records for the full course of the war even remotely close in quality to those it compiled during the first month.

The ICJ has ordered Israel “to prevent the destruction and ensure the preservation of evidence” relating to genocide with death records inevitably playing a central role in any such investigation. Gaza began the war with a robust system in place to preserve evidence of war deaths. This system was then degraded by Israeli attacks on hospitals. In this way, Israel appears to be directly violating the ICJ order.

If Israel is, genuinely and in good conscience, interested in refuting the accusation that it is engaging in genocidal actions, then it should cease attacking hospitals and provide a safe space for the MoH to rebuild its casualty recording system.

The argument that attacks on hospitals violate their special protected status of hospitals under International Humanitarian Law is widely known. Yet there seems to be little or no awareness of the connection between the ICJ’s neglected order on the preservation of evidence and Israeli attacks on key infrastructure that is central to this mission.

This gap must be closed and the issue should be presented to the court.