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

by Kevin Jon Heller

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.

http://opiniojuris.org/2009/10/21/my-thoughts-on-the-robert-bernstein-editorial/

42 Responses

  1. Bernstein’s belief that HRW should limit its criticisms to “closed” societies, leaving the human-rights abuses of “open” societies to the latter’s internal accountability mechanisms.

    He really says that?  Amazing.

  2. You repeatedly claim that Robert Bernstein wants HRW to only investigate closed societies (“He clearly wants HRW to limits its efforts to investigating closed societies.”), and then you argue against that.

    But I don’t think Bernstein is claiming this at all. He’s simply claiming that HRW has cast away the distinction between open and closed societies. He says that when he left HRW, they focused most, but not all, of its attention on closed societies. The reason is that HRW has more to offer the world in investigating closed societies than open societies that already have organizations that issue reports on violations. Doing the opposite is not only a less effective use of HRW’s resources in educating the world about unknown violations, but it also makes casual observers think that the open societies are actually more to blame because they report on more violations.

    In any case, what Bernstein seems to be proposing is that rather than ignore all open societies, HRW simply focus more of its attention on closed societies whose violations are not already being reported on by internal organizations. You haven’t really argued against what Bernstein said.

    Also, while you’ve focused on this aspect of the op-ed, it wasn’t even the most important aspect in my mind. You don’t address the fact that Bernstein says that HRW has lost critical perspective on Israel, and that Israel has wrongly borne the brunt of its criticism, while violations of Hezbollah and Hamas have received less attention despite being unambiguously intentional. Since this is the main critique that HRW has received from many observers, the fact that Bernstein agrees with it seems worth addressing.

  3. Thank you for that response, Kevin. I eagerly await David Bernstein’s re-interpretation and distortion of your major points and for his widespread ignorance and obtuseness in these matters to raise its ugly head. Of course, he will also belittle your assertions about NGO Monitor because, without it, he would actually have very little to say about Israel and HRW at all.

  4. More interestingly, the Israeli government is apparently ready to start pushing for a change in the laws of war.

    Quote:
    The Israeli leader also instructed his government to draft an initiative to change the laws of war to take into account the need to contend with “the expansion of terrorism in the world”.

    That should get all the international law buffs excited. After all, the question of whether Israel violated the laws of war is to a large extent fact-based, and to the extent that it is not, it is undisputed. In other words, the interesting parts of that question usually result in shouting matches intermingled with Youtube clips of Hamas soldiers shooting rockets from buildings/schools/hospitals and/or the Israeli army shooting at similar buildings/schools/hospitals. That’s not very productive.

    But the question of whether the laws of war are appropriate for wars as they are fought in this day and age is much more interesting. I’m not nearly enough of an expert myself, but it seems to me the question is legitimate: Do the laws of war, as they stand, strike the right balance?

  5. “Do the laws of war, as they stand, strike the right balance?”

    Yes they do. What is at work here is the shrewd apllication of the term counterterrism/self-defense as catch-all phrase to justify patently illegal and unethical behaviour.

    Much of the current debate is circular reasoning. They hate us for our freedom/They are barbaric and cannot be reasoned with/et cetera. The notion that this may in fact serve as katalyst to the problem is by definition not to be contemplated.

    If, however, we were to stand back and try and understand why people act the way they do we might be surprised that our own actions could be part of the equation. In other words, if we start violating/rewriting the laws of war, what wopuld motivate others to adhere to that standard?

    In short, the law suffices when we strictly adhere to it and apply it to all participants in a given conflict. To shield one party -as we are doing today, i.e. refusing to investigate torture ordered by the Bush administration, refusing to point out grave violations by Israel- only enrages the opponent.

  6. In short, the law suffices when we strictly adhere to it and apply it to all participants in a given conflict.

    That seems like one way to solve the problem. However, that raises the question: how do we hold insurgencies to the same standard as states? In the case of the Taliban in Afghanistan, for example, it looks like they are sufficiently organised to qualify as an army/insurgency under international law. But that doesn’t mean the law can actually touch them. They are free to act with impunity.

    Much the same can be said about Hamas. It is not always clear whether the laws of war apply to them at all, and if they do, they have no teeth.

    It is that imbalance, between the state that is increasingly scrutinised, by way of court involvement in war zones (not the GITMO cases, those are not about war, but the English and ECtHR Iraq cases) and by way of increasingly strict application of the necessity and proportionality standards, and the enemy who is often insufficiently state-like or insufficiently organised to be covered by the law at all, that needs to be adressed.

    One way to do that is to think about better ways to make the law apply to Hamas and the Taliban.

  7. Heller’s boilerplate capacity is amazing — too much for me to counter on every point. So I will take one (typical) example of (il)logic and ideological nonsense: “But at least its investigators are out there in the field, conducting interviews and gathering evidence, often in unstable and very dangerous situations.”
    HRW’s “field” investigations begin with the determination that Israel is guilty, and then look for enough “evidence” to make a case for the Heller, Goldstone, Libya, and the Arab League. These “investigations” start with a Palestinian “fixer” who takes the “researchers” (like Garlasco, who speaks no Arabic, and flies in for a week or two) to Gaza, to “interview” victims who have b been pre-approved by Hamas. How does the interview proceed? Does the HRW person show a picture of a drone and ask “is this what you saw and heard”?  In Garlasco’s drone fabrication, many “witnesses” said yes, although these virtual weapons are not visible or audible on the ground, and no one knows what they really look like. And in the HRW “white flags” fiction, the first case rests on the “testimony” of the Abed Rabbo family — who are on every fixer’s tour. They gave journalists 15 very different and evolving versions of their story, from which HRW’s “researchers” used their superior knowledge to discern the one true version. And the same is true, in slightly varying forms in every HRW “report” on Israel. So, Mr. Heller, where is the “field research”?  Where are the tapes and transcripts of the raw data so that the less gullible/ideological among us can examine the claims independently?
    Your increasingly desperate cheap shots targeting NGO Monitor further highlight your ideological blindness: In this one, you ask readers to contrast HRW’s fictions “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.”  You might want to read our analyses again, more slowly. Unlike HRW, NGO Monitor does not conduct phony “field investigations” — our research consists of reading and analyzing the hundreds of pages of “reports”, comparing them carefully with other sources, exposing the contradictions, false claims, international legal inventions, and double standards. This fully documented and reproducible “second hand” information is certainly more credible than HRW’s inventions.

  8. Is Mr. Steinberg under the impression that the Israeli government did something OTHER than refuse to cooperate with the Goldstone commission?

    Would the commission have to rely as much on sources like HRW if the Israeli government displayed some of the “openness” supposedly characteristic of that state?

  9. Shorter Gerald Steinberg: yes, we rely solely on second-hand information, while HRW conducts actual investigations.  But we’re right and they’re wrong.

  10. Steinberg’s contempt for Judge Goldstone is also certainly worth noting.  In a battle of bona fides, I wonder who would win?

  11. “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.”

    Why not admit that not only aren’t they worse, but they aren’t as bad?

  12. Kevin, can you respond to the points that Anderson and I brought up? Namely:

    1. Contrary to what you say, Robert Bernstein does not seem to claim that HRW should not investigate open societies, but rather should make the distinction clear in their reports and in their efforts.

    2. What do you think about Robert Bernstein’s belief that HRW has lost perspective on Israel, and that Israel wrongly bears the brunt of its criticism in regards to the conflict there? Does this change your opinion about those who have given this criticism of HRW before?

  13. TNelom,

    I do not read the editorial as you do.  I think Bernstein makes clear that he does not believe HRW should normally be in the business of investigating open societies.

    And no, it does not change my opinion, although Bernstein’s position is certainly more plausible than the one taken by the David Bernsteins and NGO Monitors of the world, which is that the only acceptable amount of coverage of Israel’s actions by HRW is zero.

  14. Leo,

    Seriously, give me a break.  If you think my post was implying that the US and Israel are as bad than the countries I mentioned, just not worse, there is very little I can say to reassure you.  That was obviously not my intent.

  15. Kevin,

    I’m glad you agree, and I’m glad that wasn’t your intent, but your consternation is misplaced.   It’s reasonable to ask why someone who means “not as bad” doesn’t say so, but instead says “not worse,” which is at best ambiguous about “not as bad.”

  16. Leo,

    You’re right, I overreacted — the product, no doubt, of all the other attacks… :)  My apologies.

    Kevin

  17. I think Bernstein makes clear that he does not believe HRW should normally be in the business of investigating open societies.

    Kevin, I’m not sure how you can say this given that (a) he doesn’t make this claim in the op-ed and (b) HRW did regularly investigate open societies, including Israel, while he was director.

    What he does say in the op-ed is that it is important to make the distinction between open and closed societies, in order to “create clarity in human rights” and prevent offenders from “playing a moral equivalence game with the West.” I don’t understand why you jump from that to a desire for HRW to not investigate open societies at all, especially given that the HRW that Bernstein founded did investigate open societies.

    And no, it does not change my opinion, although Bernstein’s position is certainly more plausible than the one taken by the David Bernsteins and NGO Monitors of the world, which is that the only acceptable amount of coverage of Israel’s actions by HRW is zero.


    I haven’t read a lot of what David Bernstein has written, but from what I have read of NGO Monitor, I don’t think they claim that HRW should not cover Israel’s actions at all. Rather, they seem to simply claim that HRW’s coverage is disproportionate, biased, incorrect, and politically motivated. (And this is what Robert Bernstein says in his op-ed as well.) I just skimmed over a report on HRW by NGO Monitor, and that is exactly what they highlight: methodological failures, bias, etc. I don’t even see an implication that HRW shouldn’t be covering Israel. You may disagree with their analyses, but I don’t think your claim above is true.

  18. Kevin,

    A word of advice from someone too young to be giving you advice.  Do not engage with folks like David Berstein and Gerald Steinberg.  A discussion about the appropriate focus of human rights reporting is an interesting discussion, but its worth having with intellectually honest people who actually care about the work that human rights organizations do.

    I do understand the dilemma you face though.  It is hard to sit back and watch while these people continuously attempt to trash any human rights organization that takes a critical stance on Israel’s actions. 

    Anyhow, I tend to agree with you about Robert Bernstein’s dichotomy between “open” and “closed” societies, which is clearly laid out in his op-ed contrary to what some comments have suggested.  However, although violations of human rights are violations of human rights, I believe Bernstein’s point was one of triage, even if this point was lost in his rhetoric.  That is, in a world of limited resources, it may be better for HRW, Amnesty, etc. to focus on closed societies and let their domestic counterparts take on human rights issues in the U.S. and Israel. 

    I haven’t completely thought this through, but it seems like it could just as easily cut the other way.  Human rights organizations have difficulty doing persuasive reporting in closed societies, and have to invest a lot more time, money, and energy to do so.  Open societies, on the other hand, can allow for comparatively cheap and easy reporting, with better prospects for effective remedies for human rights violations.  Moreover, countries like the U.S. might have a disproportionately large amount of power to shape state practice (and thus international law) on important human rights-related issues such as certain applications of the laws of war.  This further increases the “bang for your buck” of focusing on human rights reporting in these countries.

    At the end of the day, these efficacy concerns, for me, are trumped by a genuine need to report on the most egregious violations, and violations that remain uncovered.  This means a focus on closed societies in addition to open societies is necessary, even if this is impractical. 

    It’s too bad groups like NGO monitor (cowardly) waste precious resources denigrating human rights organizations for making these tough calls rather than stepping up to the plate to contribute human rights reporting of its own. 

    Thanks for all your great commentary and analysis.

  19. Kevin,

    Thanks, and no problem  ;)

    Leo

  20. What exactly is “cowardly” about NGO Monitor?  That we dare to challenge the “great” Human Rights Watch, an organization that seems incapable of engaging in any type of self-critical review, even when its own founder and longtime Chairman thinks something is terribly wrong?

    Anne Herzberg
    Legal Advisor
    NGO Monitor

  21. I see no point in responding to Mr. Heller’s slogans. If he ever goes beyond the “slash and burn” approach to morality and intellectual debate, let me know.
    In contrast, “Anderson” has raised a substantive issue reflecting the distorted understanding of the events and issues. He claims that I am “under the impression that the Israeli government did something OTHER than refuse to cooperate with the Goldstone commission”.
    Here is another way to understand these issues. The Goldstone “fact finding mission” was a rogues’ game from the beginning. The conclusions were determined before any facts were found, by both the mandate (a grossly immoral indictment of Israel) and the appointments. Goldstone was on HRW’s board and very close to Ken Roth, whose bias towards Israel is well documented. Chenkin’s and Gilani’s minds were also made up before they sat down – that’s why they were picked. Would the Israel government have achieved anything by giving legitimacy to this witch hunt? When the UN sets up similar bodies to investigate Pakistan, Sri Lanka, Algeria, Chechnya, Tibet, Iraq, Northern Ireland, Egypt, Iran, Afghanistan, and all the other areas of political violence, and Israel is not singled out for indictment, it will be a different ball game. Universal human rights really should be universal, don’t you think?
    Anderson then asks whether Goldstone would have relied “on sources like HRW if the Israeli government displayed some of the ‘openness’ supposedly characteristic of that state?” The answer is clearly “yes”. Goldstone and the UNHRC staff are wedded to the NGO network – they share biases, ideologies, myths, methodological failures, and interests. (HRW et al need their status in the UNHRC for influence and to display to donors, and the UNHRC needs the NGOs for verbiage and support). Anything Israel would have provided would have been either discarded or attacked with false and distorted claims. In contrast, the 500 plus references (out of about 1200) in Goldstone’s text would still have been cut and paste jobs from NGO allegations.
    (The derisive attack on Israeli “‘openness’ supposedly characteristic of that state” is cheap shot.) 

  22. Anderson,

    Even shorter Gerald Steinberg: no, the Israeli government did not do anything other than refuse to cooperate with the Goldstone commission.

  23. “Goldstone was on HRW’s board and very close to Ken Roth, whose bias towards Israel is well documented.”

    Apparently, in addition to being able to peer into the souls of Christine Chinkin and Hina Gilani, Steinberg is also channeling the ghost of Joe McCarthy.

  24. Raha,

    I greatly appreciate the kind words.  And, needless to say, I agree with the substance of your comment.

    Kevin

  25. At VC, Bernstein has updated his previous attack on me by accusing me of finding it “much easier to resort to cheap rhetorical potshots rather than address the substance of [his] criticisms of Human Rights Watch.”  Cheap rhetorical potshots like pointing out that he thinks it’s okay to make unsubstantiated allegations against HRW as long as he’s willing to issue a retraction if if HRW disproves them.  And substantive criticisms like HRW is “anti-Western.”

    It’s also ironic to note that, one day after accusing me of selectively quoting him, Bernstein blatantly quotes me selectively. His post alleges — and describes as “absurd” — that I have accused him of “assum[ing] as a matter of faith that Israel can do no wrong.” Here is what I actually wrote: “it’s interesting to note that [Robert] 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.”

    It’s painfully obvious that I was accusing Bernstein and NGO Monitor of assuming as a matter of faith that Israel does not violate the laws of war, not that — as Bernstein deceptively asserts — it can do no wrong in any way whatsoever. Perhaps I’ve missed it, but I cannot find a post on VC in which Bernstein admits that Israel committed a war crime.

    I look forward to humblelawstudent’s sternly worded rebuke of Bernstein for selectively quoting me…

  26. “It’s too bad groups like NGO monitor (cowardly) waste precious resources denigrating human rights organizations for making these tough calls rather than stepping up to the plate to contribute human rights reporting of its own.  ”

    That’s spot on and exactly what I was thinking, as this debate is really irritating. I also thought initially, that maybe Kevin is covering this too much, but having read through the relevant blogs, posts and letters, this coverage by Kevin et al. appears to be very necessary.  Checking the website of NGO Monitor, one wonders what they have ever achieved in terms of human rights protection, improvement of human rights standards, if they have any experience (interest?) in this area at all/ if their resources would not be put to better use if they actually tried to address HR violations in the Arab-Israeli / Israeli- Arab conflict irrespectively of who committed them.

    I admit I did not spend too much time on the website, but was wondering whether NGO Monitor is also monitoring NGOs that cover human rights abuses not committed by Israel? For example, would NGO Monitor point out mistakes in HRW’s reporting on HR violations committed by Hamas? Or do they use all their ressources to ‘protect’ Israel from criticism?

  27. Kevin –

    Thanks for the comment.  I don’t think you are accurately characterizing Robert Bernstein’s piece, however.  HE never says HRW should ignore “open” societies. To the contrary, he repeatedly notes HRW’s historic work criticizing open societies, while noting that it sought to distinguish them from closed societies and focus disporportionateyly, but not exclusively, on the latter.  So, among other things, he notes that HRW “always recognized that open, democratic societies have faults and commit abuses.”  He also notes that when he was in charge of HRW, it did not focus exclusively on closed societies.  (“When I stepped aside in 1998, Human Rights Watch was active in 70 countries, most of them closed societies.”)  So, unless you think he was unhappy with how the organization operated when he ran the place, there is no basis to say he believes HRW should “limit” its activities to closed societies.  HRW didn’t do that when he ran it.  What evidence is there that he believes so now?

    His ultimate complaint is not that HRW focuses any attention on Israel at all, but that it’s emphasis is disproportionate and that the organization has “lost critical perspectiv.”  Indeed, as you note above, he recognizes that Israel has anything but a spotless record. What he is responding to is the unwillingness of HRW, and many others, to recognize that despite Israel’s faults, missteps, and abuses — and there are more of these than there should be — Israel is anything but the worst offender in the region.

    JHA

  28. I’m very amused to see that Kevin thinks that this statement “a marked contrast to David Bernstein and NGO Monitor, which assume as a matter of faith that Israel can do no wrong,”  obviously means that he thinks that David Bernstein assumes as a matter of faith that Israel can not engage in war crimes.  Kevin needs a lesson a basic logic.  If you say that R. Bernstein acknowledges that Israel may engage  in war crimes, then you add that D. Bernstein in “marked contrast” “assumes as a mater of faith that Israel can do no wrong,” the logical implication is that D. Bernstein thinks that Israel can do no wrong, and therefore that Israel cannot engage in war crimes.  Run it by a few of your colleagues who teach logic, Kevin.   Better yet, why not just acknowledge, as you did with Leo, that you threw out a silly, snarky comment because you were annoyed? 
    Meanwhile, on further reflection, my own wording in a past post was imprecise, suggesting that I knew for a fact that HRW had taken money from Saudi princes, rather than that it’s willing to take money from Saudi princes, so long as they are not members of the government.  Despite Kevin’s general obnoxiousness and dishonesty, when he has a point I will react accordingly. (That said, Kevin is absolutely mistaken in claiming that I meant to imply to begin with that HRW takes money from the Saudi government; I’ve made it very clear in past posts that the problem isn’t that, but that if you raise money from PRIVATE sources in authoritarian states, the states can then cut off the money if you don’t behave).

  29. Also, I have no doubt that Israeli soldiers, or groups of soldiers have committed war crimes.  I doubt there has been any serious conflict involving large-scale armed conflict in which no one on any given side has engaged in gratuitous cruelties that violate international law.  Indeed, Israel has 13 ongoing criminal investigations into the behavior of its soldiers in Gaza, and several dozen more pending investigations.  But that’s a far cry from the allegations made in the Goldstone Report, defended by HRW, that Israel, as a matter of policy murdered civilians.  That’s like saying that every time a rogue cop beats a suspect, no matter what training and guidelines they’ve been given, that the city administration is guilty of a “crime.”

  30. Here is my amendation to the post Heller found objectionable:
    Heller also claims that be referencing “Saudi princes” I was subtly trying to imply that HRW takes money from the Saudi government.  I’m glad Heller has such faith in his mind-reading skills, but allow me to state categorically that I don’t believe that HRW would knowingly ask for, or accept, money from Saudi Arabia or any other government.  As I’ve explained in detail before, the danger is that if an organization like HRW gets dependent on funds from prviate individuals in an authoritarian regime, the organization will have strong incentives not to upset that regime, lest the regime cut off its private sources, as authoritarian regimes (unlike liberal regimes) have the power to do.Heller is correct, though, that my original post misleadingly suggested that I knew for a fact that HRW has taken money from Saudi princes, rather than has expressed its desire to raise money from Saudi elites, presumably including Saudi princes who don’t hold government positions.  I’ve amended the post accordingly.

  31. The Goldstone “fact finding mission” was a rogues’ game from the beginning. The conclusions were determined before any facts were found, by both the mandate (a grossly immoral indictment of Israel) and the appointments.

    Seeing such incredibly sweeping, practically libelous comments does not encourage me to put any faith in NGO Watch’s credibility.

     But that’s a far cry from the allegations made in the Goldstone Report, defended by HRW, that Israel, as a matter of policy murdered civilians.  That’s like saying that every time a rogue cop beats a suspect, no matter what training and guidelines they’ve been given, that the city administration is guilty of a “crime.”

    DB uses a false analogy, inadvertently I’m sure.  The allegation that I recall is that Israeli troops were instructed to apply an illegally broad definition of who was an allowable civilian target, to where simply being in the wrong place at the wrong time was a capital offense.

    A better “cop” analogy would be to a police force whose policy was that any black people at a crime scene were presumptively dangerous and thus entitled the cops to lethal “self-defense.”

  32. KJH is singularly unconvincing. As others have pointed out, R. Bernstein does not say what KJH says he said — that is, that HRW ought only to focus on closed societies to the exclusion of open societies. This obtuse (and inaccurate) interpretation of Bernstein’s remarks is the premise of a strawman response.

    “It’s too bad groups like NGO monitor (cowardly) waste precious resources denigrating human rights organizations for making these tough calls rather than stepping up to the plate to contribute human rights reporting of its own.”

    Drivel. The same perverse logic could be applied to human rights organizations: rather than stepping up to the plate to contribute to solving the problems of security and governance, NGOs like HRW (cowardly) waste precious resources denigrating democratically-elected governments that make tough calls protecting the security of their people.

    Right?

    Explain how the watchman function is the exclusive province of the likes of HRW (but not NGO watch). Apparently watching the watchmen (who are watching the watchmen) is verboten now. Only HRW may do the watching — all else is a pernicious waste of resources. Double standards much?

  33. “to where simply being in the wrong place at the wrong time was a capital offense.”

    Curfews in a warzone — color me shocked.

  34. Mr. Tan, you cannot in all seriousness think I was talking about “curfews.”

    The rules of engagement for the IDF in Gaza have been <a rhef=”http://www.haaretz.com/hasen/spages/1072040.html#”>much discussed</a>.

  35. I appreciate David Bernstein’s corrections.

  36. And since we’re all in a conciliatory mood this morning, I have amended the post to say that RB believes HRW should “normally” limit its activities to closed societies — a change that makes no difference for the argument, given that RB is very clear that he believes HRW should not commit resources to investigating societies that have adequate internal accountability mechanisms.  The crux of the disagreement is whether open societies like the US and Israel do, in fact, have adequate mechanisms.  In my opinion, they do not — at least when it comes to the kinds of human-rights violations and war crimes that HRW has investigated.

  37. And I appreciate that you said that.

  38. It would be good for Robert Bernstein to come out and clarify his position, but it seems that even if he does not believe that human rights organizations should focus exclusively on closed societies as opposed to open ones, he draws a strong distinction between the two, and clearly advocates for focusing on the former.  (Those interested in this point should take a look at HRW’s response to Bernstein, where HRW suggests that Bernstein in fact proposed focusing only on closed societies and was unanimously rejected by the HRW board.)

    Anyhow, either position is conceptually suspect.  Whether a society is relatively open or closed may bear on the efficacy of being able to report on human rights, as I suggested earlier, but it does not necessarily bear on its overall human rights record relative to other countries.  In other words, democracies can torture, and autocracies can outlaw torture and punish those who engage in torture. 

    Of course, there are many caveats here.  First, many (most?) closed societies severely clamp down on freedom of speech and association, which are preeminent rights within the international human rights framework.  Second many (most?) closed societies are ruled by dictatorships that consolidate and maintain power by killing, jailing, and otherwise oppressing political opponents.  Third, many (most?) closed societies are effectively run by kleptocracies, which steal from their own people and prevent their citizens from achieving a basic standard of living.  There could easily be a Fourth, Fifth, and Sixth in this paragraph but you get the point.

    In other words, there is a strong correlation between closed societies and the incidence of human rights violations.  However, it does not follow that human rights organizations should exclusively or predominantly focus on closed societies.  One reason is that it isn’t clear that human rights organizations should give primacy to violations of civil and political rights as opposed to, for example, focusing on torture, extrajudicial killing, and violations of of the laws of war.  However, even conceding that these closed societies do commit all human rights violations more (and more consistently), it may be strategically important to prevent states that do not typically commit human rights abuses from doing so.  As you know, state practice is incredibly important in shaping international law, and some states’ practices matter more than others. 

    The most revealing example of the value of this strategy is the focus on U.S. human rights abuses in the war on terror.  It seems clear that although the U.S. is simply not a persistent or particularly egregious human rights abuser, its positions and practices have disproportionate weight in shaping the practice and positions of others, and in shaping international law.  Moreover, because some human rights are derogable in wartime, and because the application of the laws of war in the counter-terrorism context has been devastating for the conceptual stability of human rights, it makes a lot of sense that human rights organizations are focused on this.  This focus represents a small investment up front for a potentially huge payoff in the long-term realization of universal human rights. 

    There is much more to say about all this surely, but one thing is clear.  A simple preference for focusing on closed societies leaves a lot to be desired if your goal is to think of a good rubric for effectively targeting human rights reporting.  If, on the other hand, your goal is to insulate Western states generally – and the U.S. and Israel specifically – from criticism (that can quickly deplete soft power), then the rubric probably works just fine.

  39. GOLDSTONE’S DOUBLE STANDARDS – For anyone who read Goldstone’s 575 page report (the claim that no critics have read it is one his falsehoods), please explain why he devotes many pages to allegations that Israel used white phosphorous to attack Palestinians, based only on Marc Garlasco’s HRW reports, which have zero credibility, “eye witness testimony”, and anonymous unsourced claims by “foreign doctors” (9/11 conspiracy theory’s Mads Gilbert?). Goldstone’s report then admits that 1) the use of WP as an obscurant, as was the case in Gaza, is not illegal (he wants to make it so); and 2) even the NGO network that provided most of the “evidence” to Goldstone, agrees that no Palestinians were killed by WP. Furthermore, NGO Monitor has found no evidence that Goldstone, HRW, the UNHRC, etc. has held and investigation into or charged American forces with war crimes after much greater WP use in Fallujah. Double standards?

  40. What if your goal is merely to try and limit the worst human rights abuses?

  41. Robert Bernstein’s response:

    October 24 2009
    In their October 21st letter to the editor, Jane Olson, current chair of Human Rights Watch and Jonathan Fanton, past chair wrote that they “were saddened to see Robert L. Bernstein argue that Israel should be judged by a different human rights standard than the rest of the world.” This is not what I believe or what I wrote in my op-ed piece.
    I believe that Israel should be judged by the highest possible standard and I have never argued anything else. What is more important than what I believe, or what Human Rights Watch believes, is that Israelis themselves believe they should be held to the highest standard.
    That is why they have 80 Human Rights organizations challenging their government daily. Does any other country in the Middle East have anything remotely near that? That is why they have a vibrant free press. Does any other country in the Middle East have anything remotely near that? That is why they have a democratically elected government. That is why they have a judiciary that frequently rules against the government, a politically active academia, multiple political societies, etc etc etc.
    I have argued that open societies , while far from perfect, have ways to correct themselves and that is particularly true in the case of Israel.  Millions of Arabs, on the other hand, live in societies where there is little respect for or protection of human rights.

    The current argument is whether Human Rights Watch’s facts and judgments about the Gaza conflict are correct.That is certainly a necessary and legitimate discussion.
    I should add that over the years I have had the highest regard for Human Rights Watch’s work around the world and from what I know, with the notable exception of the Middle East, that is still the case.
    Robert L. Bernstein

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