February 2, 2009
In News The Israel-Palestine Conflict
By Mouin Rabbani
The Middle East has always been a difficult challenge for Western human rights organizations, particularly those seeking influence or funding in the United States. The pressure to go soft on US allies is in some respects reminiscent of Washington’s special pleading for Latin American terror regimes in the 1970s and 1980s. In the case of Israel such organizations also face a powerful and influential domestic constituency, which often extends to senior echelons of such organizations, for whom forthright condemnation of Israel is anathema.
Given that Israel is reliant on US subventions and public goodwill to a degree without precedent in the history of American foreign policy, there is considerably more than vanity at stake. If Israel’s stature in the United States were to be reduced to that of South Africa during the apartheid era, or Serbia during the Balkan wars, this would almost certainly have material consequences for the “special relationship”. It is a reality very unlike that between the US and Saudi Arabia, for example, in which the American public’s longstanding contempt for the House of Saud has proven basically inconsequential. In Israel’s case, image is a political resource of the first order, and its preservation a matter of national security.
Until the mid-1980s, before which Israel’s human rights violations — from deportation to area bombing and all in-between — were generally several orders of magnitude worse than during the subsequent quarter century, the human rights community simply ignored the question of Israel. If challenged, organizations would respond that in view of limited resources they had to go after serious violators, like Ba’thist Iraq and Iran under the Shah, or hide behind an Israeli judiciary that although essential to the machinery of occupation at least went through the motions of oversight, or express fears of being tarred with the brush of anti-Semitism (or all of the above). In private, such justifications would be augmented by references to political pressures and funding issues, often with a barb at one or more director or board members’ Zionist sympathies thrown in. That the first widespread exposure of the systematic application of torture in Israel’s prison system was reported by the Sunday Times rather than Amnesty International was no mere coincidence.
The eruption of the Palestinian uprising in December 1987 made it impossible for human rights organizations to continue relegating the question of Israel to the backburner. With Israeli leaders like Yitzhak Rabin publicly exhorting Israel’s soldiers to “break the bones” of unarmed Palestinian protestors, and television images that made it impossible to explain away such barbarism as a mistranslated rhetorical flourish, human rights organizations faced a real quandary: ignore the question of Israel and lose credibility, or confront it and lose support.
By and large they chose a third way, producing reports that were often strong on documentation but exceptionally weak when it came to conclusions and consequences. No less importantly, they adopted the criteria of ‘balance’. In effect, a Hubble telescope was deployed to discover Palestinian actions that could in any way be considered violations of International Humanitarian Law, with these subsequently placed under an industrial-strength microscope. Treatment of Israeli actions was rather more selective and careful. Primary issues such as the legality of Israel’s presence in the West Bank and Gaza Strip, or its settlement enterprise in the occupied territories were avoided; detailed analysis of Israeli abuses, like deportation and summary executions, that indisputably constituted “grave breaches” of the Fourth Geneva Convention (the latter’s equivalent of war crimes) steered clear of unambiguous conclusions; and on the key issue of how to resolve the human rights emergency, such reports typically ended with exhortations to the Israeli government and military to show greater concern for Palestinian rights — as opposed to demands that Western governments use their various forms of aid to Israel as leverage to halt abuses.
In the process any sense of context, of this being a struggle for freedom by a dispossessed and occupied people against a colonial army — a context that in other cases the human rights community communicated so well — was entirely lost. All the more so because Israel was systematically spared the type of rhetoric and denunciations typically deployed with respect to similar situations in other continents and domestic repression in Arab states. If it was an approach that left neither the victims nor apologists of Israeli human rights violations satisfied, it at least met their minimal requirements — unprecedented exposure for the Palestinians, continued impunity for Israel. More importantly, it enabled the human rights organizations in question to navigate the storm and emerge relatively unscathed.
The Oslo agreements of 1993 provided a welcome development in this respect. Henceforth, ‘balance’ could be maintained by releasing reports on both the Israeli and Palestinian Authority judiciary, discrimination against Arabs in Israel and of violence against women in the occupied territories, torture in Israeli as well as Palestinian prisons. The idea of an overarching regime of occupation primarily responsible for both sets of violations — a concept that came so naturally when discussing the brutalities inflicted on the residents of South Africa’s ethnic homelands — rarely entered into the fray.
The onset of the Al-Aqsa Uprising in September 2000 posed a new set of challenges. Israel’s image was once again under unprecedented pressure on account of its savage attacks on Palestinians throughout the occupied territories, while committed staff on the ground — motivated by a combination of genuine concern and professional honour — exercised significant pressure on human rights organizations to step up to the plate. At the same time, particularly after 11 September 2001, such organizations were under massive pressure by right-wing and pro-Israeli forces — the latter of whom often tended towards the liberal end of the spectrum — to toe the line. Nowhere was this more true than at Human Rights Watch, an American organization that by the late 1990s had emerged as the industry leader.
In the years since 2000, HRW pursued a consistent — and consistently effective — formula: criticize Israel, but condemn the Palestinians. Challenge the legality of an Israeli aerial bombardment, preferably in polite, technical terms, and vociferously denounce the Palestinian suicide bomber in unambiguous language — especially when raising questions about the latest Israeli atrocity. In HRW publications, explicit condemnations and accusations of war crimes were almost wholly monopolized by Palestinians. With Israeli citizenship a seeming precondition for the right to self-defense, the right to resist was for all intents and purposes non-existent.
Where — as with the obliteration of a good portion of the Jenin Refugee Camp in 2002 — accusations of Israeli war crimes could not be avoided, HRW diluted these by just as prominently reporting that it did not find evidence of much worse atrocities. Its major report on the issue, Jenin: IDF Military Operations, was several months later ‘balanced’ by Erased in a Moment: Suicide Bombing Attacks Against Israeli Civilians.
One need only compare the titles of these two reports to surmise which party to the conflict stands accused of perpetrating “atrocities” that HRW “unreservedly condemns”, “war crimes”, and indeed “crimes against humanity”; in which of the two cases HRW repeatedly demands that all those with command or operational responsibility — and they are many indeed — face “criminal liability”; whose national leader must, despite HRW’s finding no evidence of command responsibility, face “accountability” for not preventing the acts of others, as well as for “significant political responsibility for the deliberate killing of civilians”; and whose actions HRW concludes “are among the worst crimes that can be committed, crimes of universal jurisdiction that the international community as a whole has an obligation to punish and prevent”.
A comparison of the two reports’ covers might also help readers judge whether it was Israel or the Palestinians who are merely referred for further examination: “Every case in the report listed below warrants additional thorough, transparent, and impartial investigation, with the results of such an investigation made public. Where wrongdoing is found, those responsible should be held accountable”.
Needless to say the press release accompanying Erased in a Moment did not, as in the case of the Jenin report, use the opening paragraph to shift discussion to more sensational allegations for which no evidence could be found — such as “HRW researchers were unable to substantiate published claims by prominent advocates of Israel that Palestinian suicide bombers have been lacing their explosives with AIDS, hepatitis and rat poison”. Its summary did however delve extensively — in fact primarily — on the person of Yasir Arafat, even though most suicide bombings were carried out by rival organizations and HRW concluded he was not involved in attacks carried out by his Fatah organization. It was presumably a simple coincidence that HRW’s highly critical account of the late Palestinian leader — occupying significantly more space in the report summary than Hamas and Islamic Jihad combined — was published at the height of the Bush administration’s campaign for Palestinian regime change.
Moving forward, and in an incident that might otherwise be considered comic, HRW in November 2006 went so far as to denounce Palestinians who refused to vacate homes threatened with imminent aerial bombardment, rather than the state bent on obliterating their houses, as war criminals. By the time it retracted its claims in a rare recantation — the howls of outrage from less partisan lawyers and human rights professionals were simply too loud to be ignored — the damage had already been done.
Interestingly, Palestinians were denounced by HRW on the legally correct (but in this case factually inaccurate) assumption that “It is a war crime to seek to use the presence of civilians to render certain points or areas immune from military operations or to direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attack”. Yet HRW’s 2002 report, In a Dark Hour: The Use of Civilians During IDF Arrest Operations, which according to the accompanying press release “documents how the IDF routinely has taken civilians at gunpoint to open suspicious packages, knock on doors of suspects, and search the houses of ‘wanted’ Palestinians during its military operations”, pointedly declines to define human shielding as a war crime. Indeed, the only differences between the documented 2002 cases and falsely alleged 2006 incidents are that the former were conducted by Israel and reached the level of systematic practice.
In 2006 HRW additionally leveled war crimes charges against Palestinian militants who captured Gilad Shalit — a uniformed soldier on active duty — on the grounds that they intended to exchange him for Palestinians imprisoned by Israel. Consequently, the main and clearest finding of “Israel: Gaza Offensive Must Limit Harm to Civilians” (28 June 2006), is that “A hostage is a person held in the power of an adversary in order to obtain specific actions, such as the release of prisoners, from the other party to the conflict … which is a war crime under the laws of war”. Against this apparently unprecedented act in the annals of military history, Israel’s own actions, which included the mass arrest of Palestinian parliamentarians and in some respects resembled a test run for Israel’s latest onslaught on the Gaza Strip (and which were the alleged subject of the press release), elicited only legal exegesis, shorn of meaningful conclusions.
More recently, the organization has issued a fatwa that any Arab launching a projectile at an Israeli target is by definition a war criminal, because such rockets and mortars are — unlike the state-of-the-art shells and missiles fired by Israel at apartment blocks, schools, hospitals, and UN facilities — not precision-guided and therefore according to HRW incapable of distinguishing between a military and civilian target. Such gunners can also not hide behind the excuse that they hit an empty field or even that they successfully aimed at and struck a legitimate military target; for HRW it is the act of using yesterday’s weapon rather than its impact that defines the crime. (There is, parenthetically, no record of HRW condemning Israel or the US of committing war crimes by virtue of using unguided projectiles).
Asked about this rather bizarre state of affairs, every current and former HRW staff member spoken to over many years — most of them in rather senior positions – point at least two fingers at HRW director Kenneth Roth’s affinity for Israel. At least as important, apparently, is Roth’s exceptional ability to divine the political wind, and do whatever is necessary to ensure that HRW retains the resources and credentials to remain the industry leader. It is that rare case where principle and opportunism merge rather than collide. (While Roth undoubtedly has allies on the organisation’s board and among its staff for his approach to the question of Israel, these are easily outnumbered by critics who would like to see a more uniform standard applied by their organisation).
Thus, in a 2006 missive to then-Secretary of State Condoleezza Rice on the eve of her Mideast sojourn at the height of Israel’s US-sponsored onslaught on Lebanon Roth, in perhaps the outstanding act of political courage during the Bush years, insisted on drawing her attention to the war crimes being perpetrated in the conflict — by Hizballah. According to several senior HRW employees, Roth subsequently tried to arrange for a critic who questioned HRW’s partisanship to be fired by filing a written complaint to the critic’s director.
As a case study of HRW’s response to the question of Israel, its publications during the recent Israeli onslaught on the Gaza Strip – all of which were consulted on www.hrw.org on 25 January 2009 — only confirm the pattern discussed above, and in some respects go beyond it as well.
True to form, HRW’s first pronouncement on the conflict, issued on 30 December 2008 and entitled “Israel: Artillery Poses Risk to Gaza Civilians”, despite its brevity meticulously documents relevant Israeli practice and the cost it has exacted in Palestininian life and limb. That said, there is no condemnation to be found. “In assessing the legality of the IDF’s artillery fire under international humanitarian law, or the laws of war”, it politely concludes, “it is necessary to determine for each attack whether it was targeted at a specific military objective; whether the weapon used could be aimed with sufficient accuracy to differentiate between the military objective and civilians; and whether the anticipated civilian casualties were not disproportionate to the expected military gain from the attack”.
Turning next to a subject entirely unrelated to the publication’s title — namely Palestinian rocket attacks — the arcane technical analysis suddenly comes to a screeching halt. Rather than ‘if on the one hand, but then on the other’, we read the following: “Human Rights Watch has repeatedly condemned the launching of rockets at population centers in Israel by Hamas and other Palestinian armed groups. The rockets are highly inaccurate, and those launching them cannot accurately target military objects. Deliberately firing indiscriminate weapons into civilian-populated areas, as a matter of policy, constitutes a war crime”.
For good measure HRW that same day released “Israel/Hamas: Civilians Must Not be Targets”. On the one hand, “Human Rights Watch investigated three Israeli attacks that raise particular concern about Israel’s targeting decisions and require independent and impartial inquiries to determine whether the attacks violated the laws of war. In three incidents detailed below, 18 civilians died, among them at least seven children”. Indeed, “Some other Israeli targets may have also been unlawful under the laws of war”.
Yet, on the other hand, “Human Rights Watch has long criticized Palestinian rocket attacks against Israeli civilians – most recently, in a public letter to Hamas on November 20 (http://www.hrw.org/en/news/2008/11/20/letter-hamas-stop-rocket-attacks). The rockets are highly inaccurate, and those launching them cannot accurately target military objects. Deliberately firing indiscriminate weapons into civilian populated areas, as a matter of policy, constitutes a war crime”.
Nevertheless by the following day, in the lengthy “Q&A: Hostilities between Israel and Hamas” Hamas leaders were no longer being led to a war crimes tribunal in HRW chains. Confronted with evidence too overwhelming to ignore that Israel was deliberately firing much greater quantities of precision-guided weapons not only into civilian-populated areas, but directly at the civilian population and to much greater effect, HRW was confronted with a stark choice: accuse Israel of war crimes, or change Hamas’s rap sheet. It prudently opted for the latter, accusing Israel only of “indiscriminate attacks in violation of the laws of war”.
For the rest of the conflict, Hamas was able to “deliberately fire indiscriminate weapons into civilian populated areas, as a matter of policy”, with total impunity, not once being denounced by HRW for committing war crimes. Too clever by half, Roth apparently believed no one would notice this sudden about-face.
As the devastation of the Gaza Strip continued apace, and the death toll reached horrific levels, it was becoming increasingly clear that civilians were very much in Israel’s crosshairs. In an orgy of organized savagery entire families were obliterated with the press of a button; refugees were herded into buildings, the premises shelled, and survivors denied medical care and essential supplies for days afterward; UN facilities, including the UNRWA headquarters and schools transformed into safe havens (whose precise coordinates and functions were communicated to the Israeli military) were repeatedly bombed; women and children seeking refuge with white flags raised were summarily gunned down; and entire neighborhoods were systematically razed to the ground. Yet, from HRW’s perspective, none of these acts — whether individually or collectively — merited the same characterization that had until 30 December 2008 been routinely meted out to their Palestinian adversaries.
As part of its response, the organization simply feigned ignorance. “Israel’s refusal to grant access to Gaza for all international media and human rights monitors since the fighting began on December 27”, it complained on 12 January, “has limited severely the flow of information and investigation from impartial observers into events on the ground”. “Human Rights Watch,” it had the cheek to report on 16 January, “is unable to conduct full investigations into alleged laws of war violations by either side because of Israel’s continuing denial of access to Gaza”. This despite the fact that the Gaza Strip was saturated with Arab journalists, local and international humanitarian staff, medical personnel including several Europeans, and approximately 1.5 million residents most of whom had at least intermittent access to telecommunications. Yet none of these, apparently, met the criteria of credible witness. Indeed, HRW’s main and almost exclusive source of reliable information consisted of staff located on the Israeli side of the boundary on account of Israel and Egypt’s ban on entry to the Gaza Strip.
HRW’s insistence on the most scrupulous standards of quality control for information emanating from the Gaza Strip, while in principle laudable, stands in rather sharp contrast to its operations in Ba’thist Iraq, where much more severe restrictions didn’t preclude the organization from concocting stories about babies thrown out of incubators and issuing detailed accounts of genocide. Similarly, even during the Gaza conflict HRW had no problem lending its imprimatur to reports of state repression of pro-Palestinian demonstrations in Iran, Saudi Arabia, and Tunisia — countries in which it was also denied access. “Gaza Crisis: Regimes React with Routine Repression”, issued on 21 January, didn’t hesitate to assert as fact various beatings and arrests in the darker parts of the Middle East, using precisely those forensic methods deemed insufficiently impartial in the Gaza Strip. Nor did denial of access prevent HRW from denouncing such regimes for throwing not one but two shoes at their people — a wholly appropriate turn of phrase but also the type of rhetoric one never sees deployed when addressing the question of Israel.
At several points HRW’s coverage of the conflict descended to the level of obscenity. On 16 January, in a press release entitled “Israel: Stop Shelling Crowded Gaza City”, the organization once again provides an accurate account, based primarily on the testimony of HRW senior military analyst Marc Garlasco, of the facts — in this case Israel’s use of heavy artillery against the centre of Gaza City, including the shelling of UNRWA headquarters with white phosphorous. Yet rather than conclude that a war crime had been perpetrated, or even suggest that the time may be ripe for investigation and accountability, the microphone is handed to Israel’s Prime Minister: “Ehud Olmert apologized for the attack, but said Israeli forces had come under fire from the UN compound. ‘It is absolutely true that we were attacked from that place, but the consequences are very sad and we apologize for it’, he said”.
Curiously, UNRWA officials, who are quoted elsewhere in the press release describing the attack, are not cited as “categorically rul[ing] out any possibility that militants had been firing from the compound,” as they had to the Associated Press and other media. Nor is the lay reader informed about the legality of the attack even if Olmert’s version of events was substantiated, or of the consequences in terms of accountability even if he was genuinely saddened and apologetic. Indeed, the only reference to an investigation is to the one HRW was purportedly unable to conduct.
Further down the same press release reports: “Israeli fire also hit the al-Shurouq tower, which houses media outlets such as Reuters, al-Arabiyya Television, and al-Hayat newspaper, causing substantial damage and wounding at least two journalists … Media organizations had provided the Israeli military with the GPS locations of all their offices. Israeli forces told the media that they had come under fire from the building”. Seemingly, the recently pardoned war criminals of Hamas successfully transformed the building into the headquarters of their rocket battalion without even being noticed by the dozens of journalists and their dozens of cameras in, on and around the building – though a more likely explanation is that the journalists, all of them Arab, fail to meet Roth’s standards for “impartial observers into events on the ground”.
The press release then states, “”Human Rights Watch is unable to conduct full investigations into alleged laws of war violations by either side because of Israel’s continuing denial of access to Gaza. Hamas and other Palestinian armed groups have also violated the laws of war by continuing to fire unguided Qassam and Grad rockets at population centers in Israel.” Once again, HRW insists on having it both ways: If violations can only be alleged pending confirmation by exhaustive investigations in situ, how can a mere reference to the type of weapon used by one party prove sufficient for finding that it has in fact committed such violations? By the time the reader gets to the final paragraph of the press release, a recommendation to Israel to “Collect and analyze data regarding Palestinian civilian casualties from artillery shelling in order to assess the harm to civilians caused by the use of artillery in particular locales and situations, and thus to base targeting decisions on a proper weighing of foreseeable civilian harm”, the reader could be forgiven for reading this as an exhortation for further Israeli shelling to ensure sufficient data is collected.
The low point of HRW’s coverage of Israel’s onslaught on the Gaza Strip was not its consistent refusal to apply a single standard — whether legal or rhetorical — to Israel and the Palestinians, nor its effective contribution to Israeli impunity, but rather a personal betrayal of an HRW colleague in his hour of greatest need.
“On the afternoon of January 3, 2009”, according to HRW’s “Israel: Investigate Former Judge’s Killing in Gaza” (issued on 9 January), “an Israeli bomb or missile from an F-16 jet fighter killed the two Gazans at the al-Ghoul farm, northwest of Beit Lahiya and close to Gaza’s border with Israel. Akram al-Ghoul was a judge who worked in the Palestinian Authority courts and resigned after Hamas took over the Gaza Strip in June 2007. He is the father of Fares Akram, Human Rights Watch’s research consultant in Gaza. Mahmoud al-Ghoul, 17, was a student”.
One aspect of the question of Israel on which HRW has pulled considerably fewer punches than others concerns internal investigations conducted by the Israeli military. Only two days before it issued the above press release, in fact, in a separate press release entitled “Gaza: Israeli Attack on School Needs Full Investigation”, the organization noted that according to its previous studies of the matter, “IDF investigations into alleged laws-of-war violations, when they have occurred, have been deeply flawed … To Human Rights Watch’s knowledge, Israel never conducted impartial and thorough investigations of those [previously recounted] incidents or held any of its military personnel accountable. During Israel’s last major ground offensive in Gaza in March 2008, Human Rights Watch found that Israeli forces committed several targeted killings and other serious violations of the laws of war. To date, no IDF investigation has taken place in these cases”.
Yet how did Kenneth Roth and the world’s leading human rights organization respond to the killing of their colleague’s father and relative? “Human Rights Watch today called on the Israel Defense Forces (IDF) to conduct a thorough and impartial investigation into the deaths by an Israeli airstrike of Akram al-Ghoul, 48, and Mahmoud Salah Ahman al-Ghoul, 17, the father and cousin of Human Rights Watch’s research consultant in Gaza. In a letter to Brig.-Gen. Avichai Mandelblit, IDF Military Advocate General, Human Rights Watch urged the military to investigate the attack, make the results of the investigation public, and prosecute any persons it finds to have acted in serious violation of international humanitarian law”. HRW didn’t even bother to go through the motions of calling for an “independent” investigation of the killing of their Arab informant’s father.
In doing so, HRW chose to pursue justice for a colleague by steering his case into what they better than perhaps any others know to be meaningless dead end. The impression that the murder of Fares Akram’s father was instrumentalised by HRW to lend a much-needed veneer of respectability to the Israeli military’s investigations of itself is particularly reprehensible.
Mouin Rabbani is a Contributing Editor to Middle East Report