My Thoughts on the (Robert) Bernstein Editorial (Slightly Updated)

Jonathan Adler, a blogger at The Volokh Conspiracy, has asked me what I think about the editorial that Robert Bernstein, the founder of Human Rights Watch, published yesterday in the New York Times criticizing the organization’s coverage of Israel.  My basic response: although I disagree with much of what Bernstein has to say, his criticisms must give anyone pause, because he obviously cares deeply about the organization.

Before I turn to what I disagree with, it’s interesting to note that Bernstein seems to acknowledge that Israel has in the past violated the laws of war — a marked contrast to David Bernstein and NGO Monitor, which assume as a matter of faith that Israel can do no wrong.  That, at least, is my take on his statement, “[t]o be sure, even victims of aggression are bound by the laws of war and must do their utmost to minimize civilian casualties. Nevertheless, there is a difference between wrongs committed in self-defense and those perpetrated intentionally.”  I think it is far from self-evident that Israel’s wrongs have all been committed in self-defense, and we cannot ignore the fact that Israel’s wrongs have caused far more actual damage than Hamas’s wrongs.  But there is indeed a fundamental difference between (a) launching an attack that unintentionally causes disproportionate harm to civilians and civilian objects and (b) intentionally attacking civilians with rockets and intentionally using civilians as human shields.

That said, I strongly disagree with Bernstein’s belief that HRW should normally limit its criticisms to “closed” societies, leaving the human-rights abuses of “open” societies to the latter’s internal accountability mechanisms. HRW exists to uncover human-rights abuses and violations of the laws of war, not to pass judgment on whether a particular society is open or closed.  And I have yet to encounter the society, open or closed, that is completely free from sin when it comes to how they treat their citizens in times of peace and their enemies in times of war.  (Okay, maybe Norway.)

That does not mean, of course, that all societies violate human rights and commit war crimes equally.  I don’t believe that the US and Israel are worse in those respects than Sri Lanka, the DRC, Myanmar, Sudan, Colombia, etc.  Nor does it mean that HRW should not take into account whether a particular society is characterized by “vigorous public debate, an adversarial press and many other mechanisms that encourage reform” or is instead “closed and autocratic, permitting little or no internal dissent.”  But it does mean that HRW has an obligation to investigate human-rights violations and war crimes committed by any government that refuses to take responsibility for them, no matter how open or closed that society may be.

And there’s the rub.  Governments in “open” societies might be better at addressing the human-rights violations and war crimes that their officials and soldiers commit than “closed” societies, but the difference is at best one of degree.  Consider the US, which is an open society by any standard — its openness did not prevent the Bush administration from systematically committing massive human-rights abuses and war crimes, and the Obama administration has shown no interest in holding the individuals responsible for those crimes accountable.  Nor has the Supreme Court done much to limit overreaching by the Executive, despite the occasional Rasul or Hamdan.  So should HRW avoid investigating the US simply because, in theory, the US is an “open” society?  Not in my book — not until the US proves that it can, in fact, keep its own house in order.  And the same goes for Israel.

Finally, I think there is a very basic contradiction at the heart of Bernstein’s editorial.  He clearly wants HRW to focus its efforts to investigating closed societies.  But at the same time he is profoundly skeptical of HRW’s ability to effectively investigate them:

In Gaza and elsewhere where there is no access to the battlefield or to the military and political leaders who make strategic decisions, it is extremely difficult to make definitive judgments about war crimes. Reporting often relies on witnesses whose stories cannot be verified and who may testify for political advantage or because they fear retaliation from their own rulers.

Bernstein is talking here about the problems HRW faces in investigating Israel’s war crimes in Gaza, not Hamas’s war crimes.  But the principle is the same — and indeed, it seems obvious that it is even more difficult to investigate human-rights war crimes committed on the territory of a closed society by that society’s government than by the government of a different society.

There is, of course, no solution to this dilemma.  But I think we can draw two important lessons from it.  First, HRW should take advantage of the fact that the vibrant civil societies that exist in countries like the US and Israel greatly facilitate investigating human-rights abuses and war crimes.  Ease of investigation is a benefit when the governments of such countries do not adequately address those abuses and crimes themselves.  Second, HRW should continue to do what it always does in closed societies — put boots on the ground and conduct the best investigations it can, all the while openly acknowledging (as it does) the difficulties involved in such investigations.  Are HRW investigations infalliable?  Of course not.  But at least its investigators are out there in the field, conducting interviews and gathering evidence, often in unstable and very dangerous situations.  Contrast that with an organization like NGO Monitor, which has openly admitted on this blog that it does not conduct its own investigations, relying instead on second-hand information for its “critiques” of HRW.

So, to recap: of course we should take Robert Bernstein’s editorial seriously.  But we don’t have to agree with everything he says.