Bernstein, Israel, and White Phosphorous

by Kevin Jon Heller

David Bernstein has another snide post about Human Rights Watch today, this time concerning a presentation Sarah Leah Whitson gave about the Middle East at a panel discussion. I won’t bother debating Bernstein’s characterization of the presentation; you can watch it here.  I’m more interested in the ease with which Bernstein disposes of the extremely complicated international-law issues raised by Israel’s actions — ease that is only possible if one takes for granted, as an article of faith, that Israel can do no wrong.  Here is the relevant passage from the post:

Her presentation of the relevant facts and relevant international law is tendentious in the extreme [Gaza, with not a single Israeli soldier or civilian, is "occupied?" Israel "transferred" its population to the West Bank? Using white phosphorous to illuminate targets violates international law?]. She accuses Israel of apartheid. She consistently refers to the wars in Lebanon and Gaza as “Israel’s wars,” even though, obviously, they were fought against foes that were launching cross-border attacks against Israel’s civilian population and which declare themselves to be at war with Israel. She accuses Israel of war crimes, including “indiscriminate” bombing of South Lebanon, which, given the low civilian casualty in the second Lebanon War–even Hezbollah puts the total in the high hundreds, while Israel says low hundreds, out of a population of hundreds of thousands–from a nation with one of the most powerful air forces in the world, is absurd. If Israel had engaged in indiscriminate bombing, casualties would have been in the tens of thousands. I expect foes of Israel to engage in such hyperbole, but Whitson is supposed to be an “objective” human rights advocate.

It is ironic that Bernstein describes Whitson’s presentation as “tendentious in the extreme,” given the extreme tendentiousness of his own presentation.  One could, of course, have a productive discussion about these issues.  For example, I tend to agree with Marko Milanovic that Israel’s current relationship with Gaza should be characterized as a siege, not as an occupation.  But that is a very close question, one which Bernstein has no interest in debating, because for him it is obvious that anyone who believes Israel is occupying Gaza is simply anti-Israel.

It is also worth noting that Bernstein’s questions are as tendentious as his answers.  Consider, for example, his reduction of the controversy over Israel’s use of white phosphorous to “[u]sing white phosphorous to illuminate targets violates international law”?  The answer to that question is indeed “no” — but what Bernstein fails to mention is that Israel (1) first denied using white phosphorous at all in Gaza; (2) only admitted using white phosphorous after photographic evidence made its denials untenable; (3) then claimed that it only used white phosphorous in a manner consistent with international law; and (4) finally admitted that “some practices” regarding white phosphorous might be illegal and are under investigation.  From The Times (UK):

After weeks of denying that it used white phosphorus in the heavily populated Gaza Strip, Israel finally admitted yesterday that the weapon was deployed in its offensive.

The army’s use of white phosphorus – which makes a distinctive shellburst of dozens of smoke trails – was reported first by The Times on January 5, when it was strenuously denied by the army. Now, in the face of mounting evidence and international outcry, Israel has been forced to backtrack on that initial denial. “Yes, phosphorus was used but not in any illegal manner,” Yigal Palmor, a Foreign Ministry spokesman, told The Times. “Some practices could be illegal but we are going into that. The IDF (Israel Defence Forces) is holding an investigation concerning one specific incident.”

The incident in question is thought to be the firing of phosphorus shells at a UN school in Beit Lahiya in the northern Gaza Strip on January 17. The weapon is legal if used as a smokescreen in battle but it is banned from deployment in civilian areas. Pictures of the attack show Palestinian medics fleeing as blobs of burning phosphorus rain down on the compound.

A senior army official also admitted that shells containing phosphorus had been used in Gaza but said that they were used to provide a smokescreen.

The Ministry of Defence gave lawyers the task before the attack of investigating the legal consequences of deploying white phosphorus – commonly stocked in Nato arsenals and used by US and British forces in Iraq and Afghanistan – inside the Gaza Strip, home to 1.5 million Palestinians, and one of the most densely populated places in the world.

“From what I know, at least one month before it was used a legal team had been consulted on the implications,” an Israeli defence official said. He added that Israel was surprised about the public outcry. “Everyone knew we were using it, and everyone else uses it. We didn’t think it would get this much attention,” he said.

Is Bernstein interested in a fair and productive debate about Israel’s actions?  You be the judge.

PS: I have previously mentioned on this blog that I worked with Human Rights Watch on the Saddam trial, but David is probably right — see his comment below — that I should mention my association with them whenever I blog about the organization.

http://opiniojuris.org/2009/07/21/bernstein-israel-and-white-phosphorous/

8 Responses

  1. Just for the record, the point of my post re the international law issues is precisely that Whitson asserts as FACTS things that an objective observer might think are tenuous (the idea that Gaza, without a single Israeli soldier or civilian, is “occupied,” is VERY tenuous), or open to debate. Even when she has facts, e.g.., Israel’s use of cluster bombs, which I admittedly haven’t heard a good justification for, she exaggerates them so they suddenly becomes part of a general indiscriminate bombing campaign for the whole war, which is utter nonsense.   In other words, HRW acts more like a lawyer briefing the anti-Israel case than like a neutral observer. 

    More important, Kevin, you are changing the subject.  My post is not about Israel’s actions, though I’ve had many of those in the past, and will be happy to debate them in the future.

    My post is about whether HRW is a neutral, objective party in its reportage on Israel, or whether it comes to the table with a strong anti-Israel bias.  Mr. Levy claims that Ms. Whitson of HRW, who criticized Israel before potential Saudi donors, doesn’t single out Israel, and he links to a video of her talk to prove it.  I show that Ms. Whitson spends 3.5 minutes talkings about Israel’s violations of international law, calls the Gaza war and the Lebanon War “Israel’s [but not Hezbollah's or Hamas's] wars”  and then spends 12 seconds babbling incoherently about Hamas and Hezbollah, not mentioning ANY of their specific violations of international law.   She then spends another several minutes criticizing U.S. aid to and its relationship with Israel, Egypt and Jordan.  Care to join Mr. Levy in arguing that this video shows Whitson’s evenhandedness? And how much worse could we expect her presentation before a Saudi audience, instead of an American audience, to be? (If I’m wrong, let Whitson release her prepared remarks in Saudi Arabia).

    And when are you going to admit that you were wrong about HRW’s trip to Saudi Arabia?  Even HRW admits that it felt the need to emphasize Israel’s alleged wrongdoing in Gaza and HRW’s battles with pro-Israel groups to counteract the alleged impression in the Arab world that it’s too pro-Israel.
    http://www.hrw.org/en/node/84512

  2. Oh, and Kevin, I just noticed that you’ve actually worked for Human Rights Watch.  It’s really questionable blogging ethics to blog in defense of a group you’ve worked for without revealing that in your posts on the issue.

  3. I’m curious as to what work Mr. Heller has done for HRW, let’s not leave us hanging, shall we?

    Secondarily, to address the matter at hand, I think they’re incorrect about Israel’s use of WP being illegal.  Like many countries, they are not party to protocol II, and thus can use incendiary weapons, even in areas with concentrations of civilians.

    The ICRC’s interpretation of Protocol II being customary international law is specious, given how many countries have not signed or ratified, and how incendiary weapons are in continual use around the globe.  Their original declaration was made in 1977, before it was clear how many countries would not end up joining the protocol.

    It’s worth noting the US and Israel behaved exactly the same towards Protocol I, yet few make the argument that Protocol I should apply to either Israel or the United States.

  4. He served as Human Rights Watch’s external legal advisor on the trial of Saddam Hussein.

    http://www.pbs.org/pov/reckoning/perspectives_heller.php

  5. DB sounds a bit like one of those Germans who only wants to talk about the German casualties from carpet bombing and from forced migrations in 1945, without getting into whatever alleged atrocities Germans might’ve committed in the Soviet Union or Poland.

    IOW, one reason HRW spends most of its time talking about Israeli violations is that ISRAEL HAS KILLED, INJURED, AND DEHOUSED A LOT MORE PEOPLE.  If I’m a human rights organization, I’m not going to give equal time to Israel’s casualties from Gazan missiles vs. Gaza’s casualties from the Israeli blockade and invasion.

  6. MG,

    Israel clearly acknowledges the customary limits on the use of WP, as their statements about the possible illegality of its use indicates.

    And I didn’t leave you hanging: my PS to the post says exactly what work I did with HRW.  Did you even bother to read it?

  7. Ah, I’m sorry, I must not have noticed it.

    I’m unconvinced a country acknowledging CIL binds them to it.  I should think that if they’re accused of war crimes, they have the duty to investigate such allegations, regardless of their legal merit.  The mere investigation doesn’t strike me as an admission of guilt.

  8. KILLED, INJURED, AND DEHOUSED A LOT MORE PEOPLE.

    Killing, injuring, and dehousing is a natural result of war.  War per se is not against international law.

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