Another Bernstein Post Attacking Human Rights Watch

by Kevin Jon Heller

David Bernstein is back with yet another attack on Human Rights Watch.  This time, Bernstein is up in arms that, in 2006, HRW retracted a claim that armed Palestinian groups had committed war crimes by using human shields — an action that he believes proves, in light of HRW’s refusal to apologize for its allegedly false criticisms of Israel, that the organization “is implicitly hostile to Israel and its supporters.”  Here is what Bernstein writes (links in the original):

It was therefore enlightening for a reader to point me to a prior controversy involving HRW and the Palestinian-Israeli conflict. HRW criticized Palestinian officials for urging civilians to serve as human shields. Anti-Israel commentators, led by rabidly anti-Israel activist Norman Finkelstein, went ballistic.

So how did HRW react? Did Ken Roth say, “We report on Palestine. Its supporters fight back with lies and deception.” Did Middle East director Sarah Leah Whitson accuse HRW’s critics of racism? Not exactly. HRW instead issued an abject apology. In fact, if you try to find the original press release on its website, you instead find a page that first has the lengthy apology, and only then republishes the original press release.

You can’t make this stuff up!

I have to admit, I was concerned when I first read Bernstein’s post.  Would HRW really apologize for criticizing Palestinian officials “for urging civilians to serve as human shields”?  That would indeed be indefensible.

But then I read HRW’s “abject apology.”  And not surprisingly, Bernstein’s characterization of it turned out to be completely misleading.  HRW’s original press release criticized armed Palestinian groups for encouraging Palestinian civilians to shield the house of a military commander in the Popular Resistance Committee, an act that the press release described as a war crime.  HRW’s later statement in no way retreated from the claim that the use of human shields during armed conflict was criminal; indeed, the statement emphasized that the press release was designed

to underscore one of the most fundamental principles of international humanitarian law: the obligation of warring parties to take all feasible measures to spare civilians from harm. This includes the important principle that parties to a conflict, including military leaders and civilian officials, may not use civilians to “shield” against a military attack or otherwise unnecessarily put civilian lives at risk.

So why did HRW issue the statement?  For two reasons.  First, it wanted to correct the impression that the organization was “criticizing civilians for engaging in nonviolent resistance.”  According to the statement, ” [t]his was not our intention. It is not the policy of the organization to criticize non-violent resistance or any other form of peaceful protest, including civilians defending their homes.”

Second, and more importantly, HRW had re-examined the incident and determined that the facts did not support its assumption in the press release that the IDF attack had been committed during armed conflict.  That was obviously a critical assumption, because IHL only applies — and thus war crimes can only be committed — during armed conflict.

Here are the critical paragraphs from the statement:

We said that the planned IDF attack on the house of a military commander in the Popular Resistance Committee, Muhammadwail Barud, fell within the purview of the law regulating the conduct of hostilities during armed conflict. We criticized Barud for reportedly urging civilians to assemble near the house in order to prevent the attack, in apparent violation of that law. Our focus was not on the civilians who assembled, their state of mind, or their behavior (such as whether they willingly assembled or not), but on Barud for risking the lives of civilians.

We have since concluded that we were wrong, on the basis of the available evidence, to characterize the IDF’s planned destruction of the house as an act of war. If the planned attack against the house – a three-story building housing three families – was, in fact, an administrative action by the Israeli government aimed at punishing a militant for his alleged activities, the law regulating the conduct of hostilities during armed conflict would not apply and could not be violated.

An important consideration in this regard is whether the IDF had reason to believe that the house was being used for military purposes at the time of the planned attack. To date, Human Rights Watch has not obtained conclusive evidence as to whether the house was being so used, but eyewitnesses we have been able to speak with, including two journalists on the scene, claim they saw no such evidence. The IDF, moreover, has not responded to our requests to explain what military objective it could have had in targeting not a militant but his home after having ordered it vacated.

This is not an “abject apology,” but a laudable attempt by HRW to ensure that it applies international law with the precision that it requires.

It is also misleading to imply, as Bernstein does, that the “abject apology” was motivated by Finkelstein’s post for Counterpunch.  What Bernstein conveniently fails to mention is that Finkelstein’s criticism of HRW concerning human shields was a small part of a long post accusing HRW of being too critical of the Palestinians and too soft on Israel.  Here are some revealing snippets from Finkelstein’s post about the 2006 events:

It is at times like this that we expect human rights organizations to speak out.

How has Human Rights Watch responded to that challenge?  It criticized Israel for destroying Gaza’s only electrical plant, and also called on Israel to “investigate” why its forces were targeting Palestinian medical personnel in Gaza and to “investigate” the Beit Hanoun massacre.

On the other hand, it accused Palestinians of committing a “war crime” after they captured an Israeli solder and offered to exchange him for Palestinian women children held in Israeli jails.  (Israel was holding 10,000 Palestinians prisoner.)  It demanded that Palestinians “bring an immediate end to the lawlessness and vigilante violence” in Gaza.  It issued a 101-page report chastising the Palestinian Authority for failing to protect women and girls.  It called on the Palestinian Authority to take “immediate steps to halt” Palestinian rocket attacks on Israel.

Indeed, although Israeli solders have frequently used Palestinians as human shields in life-threatening situations, and although HRW has itself documented this egregious Israeli practice, HRW has never once called it a war crime.

It took weeks before HRW finally issued a report condemning Israeli war crimes in Lebanon.  Although many reliable journalists were daily documenting these crimes, HRW said it first had to conduct an independent investigation of its own.

[snip]

Was HRW seeking to appease pro-Israeli critics after taking the heat for its report documenting Israeli war crimes in Lebanon?

[snip]

HRW executive director Kenneth Roth “commended” Israel during its last invasion for warning people in South Lebanon to flee — before turning it into a moonscape, slaughtering the old, infirm, and poor left behind.

Bernstein’s right about one thing: you really can’t make this stuff up.

Disclaimer: I worked with HRW on the Saddam trial.

http://opiniojuris.org/2009/07/26/another-bernstein-post-attacking-human-rights-watch/

17 Responses

  1. Boy, Kevin, you keep missing the point, I could only think intentionally.  You mischaracterize my post entirely, largely by selectively recounting only part of what I wrote.  My post started by pointing out that HRW has NEVER officially apologized for any of it mistatements or distortions about Israel, and has been quite obnoxious in how it characterizes its pro-Israel critics.  However, the one time it came under fire for allegedly being too hard on the Palestinians, it issued an abject apology.  My post takes no position on whether the apology was justified or not (though some of my commenters make a good case that it was not). 

    The post is short enough that I can reprint it in full, so your readers can see your distortion: 

    Are Human Rights Watch Officials Just Thin-Skinned? (No!):
    In a previous post, I criticized Human Rights Watch Director Ken Roth’s characterization of the criticism HRW receives regarding its coverage of Israel. Roth wrote, in an email to Jeffrey Goldberg, “We report on Israel. Its supporters fight back with lies and deception.” I’ve also noted that (at least according to NGO Watch, and to my knowledge), HRW has never officially recanted or apologized for any of the errors or distortions critics have identified in its reporting on Israel.
    There are two possible explanations for the above. One is that HRW is implicitly hostile to Israel and its supporters. The other is that Roth and colleagues are just arrogant you-know-whats who don’t take criticism well, and would react the same way regardless of the source of the criticism.
    It was therefore enlightening for a reader to point me to a prior controversy involving HRW and the Palestinian-Israeli conflict. HRW criticized Palestinian officials for urging civilians to serve as human shields. Anti-Israel commentators, led by rabidly anti-Israel activist Norman Finkelstein, went ballistic.
    So how did HRW react? Did Ken Roth say, “We report on Palestine. Its supporters fight back with lies and deception.” Did Middle East director Sarah Leah Whitson accuse HRW’s critics of racism? Not exactly. HRW instead issued an abject apology. In fact, if you try to find the original press release on its website, you instead find a page that first has the lengthy apology, and only then republishes the original press release. [END ORIGINAL POST]
    And I’m not sure what your point is about Finkelstein.  You say that F. was accusing HRW of being too critical of the Palestinians and too soft on Israel.  Exactly.  He complains, HRW apologizes.  Anyone who doesn’t share Finkelstein’s rabidly anti-Israel, extreme far leftist views of the conflict points out errors or distortions that are far more serious than the one Finkelstein complains about, but disfavor Israel instead of the Palestinians, and Ken Roth says its all “lies and deception.”  And do you know who Finkelstein is?  Saying that he finds HRW too pro-Israel is like saying that Rabbi Moshe Levinger of Gush Emunim finds HRW too pro-Palestinian.  In other words, completely worthless as a data point.
    So how about you play fair and respond to the actual point of my post?  Do you think that Human Rights Watch has EVER made an error regarding its reporting on Israel to Israel’s disfavor? (I can point you to some links, including by bloggers on this site).  If so, do you have evidence that HRW has ever issued an official apology?  If not, how do you explain HRW’s willingness to backtrack in the face of criticism by advocates of the Palestinian cause, but its (a) failure to ever make a similar public apology/retraction about criticism of Israel; (b) its consistent and obnoxious characterization of its pro-Israel critics as liars blinded by pro-Israel sentiment (you’d be hard-pressed to find anyone more pro-Israel than Finkelstein is anti-Israel), without any similar characterization of people like Finkelstein?  Perhaps we have Occam’s razor here, and the answer is that Roth and Whitson basically share Finkelstein’s outlook on the conflict, and are thus far from neutral “Human rights” observers?

  2. One more thing: you say “I read HRW’s ‘abject apology.’ And not surprisingly, Bernstein’s characterization of it turned out to be completely misleading.”

    I wrote, HRW instead issued an abject apology. That is precisely all I said about the apology.  The only “characterization” I gave to the apology is that it was abject.  And I explicitly contrasted the apology to Roth and Whitson’s unbelievably obnoxious reactions to criticism from pro-Israel critics, because THAT is the point.

    You read something into that line that wasn’t there, and should apologize.

  3. HRW’s statement was not an apology, much less an abject one.  I stand behind what I wrote; I leave it to our readers to judge which one of us is guilty of distortion.

  4. This, by the way, is interesting: “perhaps the answer is that Roth and Whitson basically share Finkelstein’s outlook on the conflict, and are thus far from neutral ‘Human rights’ observers?”  It is remarkable that you could write that sentence after linking to a post by Finkelstein in which he savagely attacks HRW for being too soft on Israel.

  5. From the Jerusalem Post:

    On Monday, the Human Rights Watch, while sticking to its demand for the establishment of an independent inquiry into a blast on a Gaza beach 10 days ago that killed seven Palestinian civilians, conceded for the first time since the incident that it could not contradict the IDF’s exonerating findings.

    On Monday, Maj.-Gen. Meir Klifi – head of the IDF inquiry commission that cleared the IDF of responsibility for the blast – met with Marc Garlasco, a military expert from the HRW who had last week claimed that the blast was caused by an IDF artillery shell. Following the three-hour meeting, described by both sides as cordial and pleasant, Garlasco praised the IDF’s professional investigation into the blast, which he said was most likely caused by unexploded Israeli ordnance left laying on the beach, a possibility also raised by Klifi and his team.

    “We came to an agreement with General Klifi that the most likely cause [of the blast] was unexploded Israeli ordinance,” Garlasco told The Jerusalem Post following the meeting. While Klifi’s team did a “competent job” to rule out the possibility that the blast was caused by artillery fire, there were still, Garlasco said, a number of pieces of evidence that the IDF commission did not take into consideration.

  6. Garlasco telling the Jerusalem Post that he erred is quite clearly NOT the same thing as HRW issuing an official apology, retraction, correction, etc .  Indeed, it’s telling that EVEN THOUGH Garalsco admitted he (and HRW) were wrong, HRW did not offically apologize, issue a retraction, etc.

    The Post admittedly mischaracterized this as HRW conceding something, but the dramatic lead-in doesn’t match what actually happened.

    Re F, he savagely attacked, and HRW relented.  And, as I plan to blog about, Whitson is in fact an admirer of his–even after his attack on HRW.

  7. I see.  HRW admitting error about its characterization of an Israeli action isn’t actually “conceding something.”  But HRW admitting error about its characterization of a Palestinian action is an “abject apology.”  Got it.

    Here, by the way, is how some right-wing blogs characterized HRW’s admission of error concerning the IDF’s actions:

    Little Green Footballs: “Human Rights Watch Backs Down.”
    Instapundit: “Human Rights Watch Backs Down on Gaza.”
    American Thinker: “The Gaza Beach Hoax Retreat.”
    Judeopundit: “Gaza Beach Update: Garlasco Concedes Some Points.”

    Nope, no concession there.

  8. why don’t you email sarah and ask her if garalsco’s comment to the post constituted an official apology/retraction’, and if so why its not on hrw’s website, then get back to us with the response?

  9. KJH,

    If none of the posts and articles that you link to, does HRW actually admit that it was wrong even though HRW purportedly couldn’t contadict the IDF’s findings.  So, what does HRW do?  Do they say that the IDF was right or that they were wrong?  No, they just call for an independent investigation.  Some “concession.”

  10. oops, “If none” = “In none”

  11. HRW’s retraction was not only b/c of Finklestein — at the time, there were several articles on the far left criticizing HRW’s “human shields” statement and they backed down. I had several email exchanges with Lucy Mair (HRW’s researcher) at the time about it and the way Bernstein tells it is exactly how it happened.

    Also, Garlasco admitted he was wrong about Gaza beach, yet 2 days later, HRW backtracked again and they still have never officially admitted that the Gaza Beach incident was most likely a result of unexploded ordinance and not an intentional attack by the IDF.

    Nor did HRW admit it deliberately doubled the number of casualties from the Qana bombing during the 2006 Lebanon war when HRW officials at the scene of the bombing knew the Red Cross put the casualty count at 28 instead of 54.

    More later . . .

    Anne Herzberg
    Legal Advisor
    NGO Monitor

  12. Kevin’s Jerusalem post link is dated June 20, 2007.  But HRW’s next post on this matter, on June 30, doesn’t back up the alleged concession by its employee.  You can see so yourselves: http://www.hrw.org/en/news/2007/06/30/israelgaza-strip-rockets-and-shelling-violate-laws-war

    “…. Human Rights Watch’s investigation into a June 9, 2006 explosion on a Gaza beach that killed seven civilians and injured dozens more. Human Rights Watch determined that a 155mm Israeli artillery shell – either one fired that day or an unexploded one set off by nearby firing that day – caused the blast. It also found that an Israeli investigation into the incident failed to take into account evidence from sources other than the IDF, thus betraying a lack of interest in arriving at the truth of what happened.”

    That’s certainly neither an apology nor a retraction.

  13. Since KJH’s scholarly activities relate to interpretation of international agreements and conventions I’m interested in what KJH thinks of HRW’s revised understanding of the Barud human shields incident. 

    As stated in HRW’s clarification/withdrawal of criticism (since KJH won’t call it an apology), they seem to have decided that Barud was not a combatant, and the “human shields” were in fact practicing Gandhian non-violent resistance. 

    It’s not clear what Barud’s status was acc. to HRW (ie. was he also a non-violent resistor?).   But perhaps KJH could offer an opinion on the plausibility of HRW’s interpretation.

    Incidentally, I find KJH’s remarks about DB’s post and also his claims that HRW made some kind of retraction on the Gaza beach incident to be clearly disingenuous.

  14. I’m a little confused by HRW’s apology about the human shield remark myself.  Why would it be alright if the civilians attempted to shelter a military target?  Aren’t they committing the exact same violation the military commander would be ordering them into position?  Isn’t he already committing the offense anyway, by requesting them to shelter him?

    Sounds to me like they were pressured to apologize and danced around saying “white is black” as much as possible, and thus drew a distinction without significance.

  15. Whether IHL applies or not is a “distinction without significance.”  Also good to know.

  16. Kevin, I’m still waiting for you to come up with an example of HRW officially apologizing or retracting a false or misleading statement about Israel, and to acknowledge you were wrong about the significance of the JPost article.  Then again, I’m still waiting for you to acknowledge that HRW doesn’t fundraise among pro-Israel Jews by highlighting its criticisms of the Palestinians, and for you to retract the misinformation you spread about Israel’s non-attack on the U.N. school. 

  17. KJH wrote:

    Whether IHL applies or not is a “distinction without significance.”  Also good to know.

    Since the writer is not a jurist, you could attempt to explain this issue to him (also to my similar question immediately above).   Instead you simply responded with snark.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.