David Bernstein Misrepresents Human Rights Watch (Yet Again)

This time concerning the Goldstone Report and whether Israel intentionally targeted civilians during Operation Cast Lead as a matter of policy.  You know a post is in trouble when it’s entitled “Human Rights Watch Lies re: Goldstone Retraction,” but then states, three paragraphs later, “Well, maybe lying isn’t quite right. Roth chose his words carefully, and I suppose it’s technically true that HRW never explicitly endorsed a Goldstone Report finding that Israel had a policy of targeting civilians.” So HRW is lying, except that it’s not.

The misleading title, however, is far from the biggest problem with the post.  Even worse is Bernstein’s inability to understand what Goldstone retracted and what HRW has said about Israel’s ostensible policy of intentionally targeting civilians.  Here is the relevant paragraph from Goldstone’s editorial (emphasis added):

The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.

Goldstone thus clearly distinguished between individual incidents in which specific Israeli soldiers intentionally targeted civilians, the existence of which he believes has been reaffirmed by the Israeli and UN investigations, and the existence of an official Israeli policy to intentionally target civilians, which he believes has been disproven by by the Israeli and UN investigations.

Now consider the laundry list of statements that, according to Bernstein, contradict Ken Roth’s recent claim in the Guardian that HRW has never argued that Israel intentionally targeted civilians as a matter of official policy (emphasis in the original):

Let’s start with Mr. Roth himself, writing in the Jerusalem Post on Aug. 25, 2009:

Israel could have conducted the war by targeting only combatants and taking all feasible precautions to spare civilians, as required by international humanitarian law. That is mandated even though Hamas often violated these rules, because violations by one side do not justify violations by the other.

Instead, as Human Rights Watch has shown through detailed, on-the-ground investigations, Israeli forces fired white phosphorous munitions indiscriminately over civilian areas, shot and killed Palestinian civilians waving white flags, attacked children playing on rooftops with precision missiles fired from aerial drones and needlessly destroyed civilian property.

Now let’s move on to various HRW reports.

HRW, April 23, 2009:” Human Rights Watch’s investigation into the fighting in Gaza concluded that Israeli forces were responsible for serious violations of the laws of war, including the use of heavy artillery and white phosphorus munitions in densely populated areas, the apparent targeting of people trying to convey their civilian status…

HRW, Aug. 13 2009 [After discussing alleged “white flag” killings by Israeli soldiers]: “The Israel Defense Forces have for years permitted a pervasive culture of impunity regarding unlawful Palestinian deaths”

HRW, Sept. 16, 2009: “The 575-page report, released on September 15, 2009, documented serious violations of international humanitarian law by Israel, with some incidents amounting to war crimes and possible crimes against humanity, including willful killings.”

HRW, November 3, 2009: “It also found that Israeli forces unlawfully used white phosphorous munitions and heavy artillery in densely populated areas, fired upon civilians holding white flags.”

HRW, April 11, 2010: “Between December 27, 2008 and January 18, 2009, Israel’s “Operation Cast Lead” in Gaza killed several hundred Palestinian civilians and wounded many more, some during Israeli attacks that were indiscriminate, disproportionate or at times seemingly deliberate, in violation of the laws of war.”

HRW, Feb. 7, 2010: “Human Rights Watch documented 53 civilian deaths in 19 incidents in which Israeli forces appeared to have violated the laws of war. Six of these incidents involved the unlawful use of white phosphorus munitions; six were attacks by drone-launched missiles that killed civilians; and seven involved soldiers shooting civilians who were in groups holding white flags.”

HRW, Feb. 26, 2010: “Nor has [Israel] conducted credible investigations into military policies that may have contravened the laws of war or facilitated war crimes. These include the targeting of Hamas political institutions and Gaza police; the use of heavy artillery and white phosphorus munitions in populated areas; and the rules of engagement for aerial drone operators and ground forces.”

What is most obvious is that none of these statements actually claim that Israel intentionally targeted civilians as a matter of official policy. They all focus on specific incidents, not on the policies of the Israeli government.  Indeed, Bernstein tacitly admits as much, because he feels compelled to add that “In none of the statements excerpted below did HRW provide any caveats to the effect that the incidents in question may have involved rogue soldiers or units, as opposed to being Israeli policy.”

In other words, Bernstein believes that, unless HRW indicates otherwise, any claims that HRW makes about specific incidents should be considered claims about Israeli policy in general.  That’s ridiculous, of course, and completely inconsistent with how HRW works.  HRW knows full well how to claim that violations of international law reflect the official policies of the Israeli government.  See here, for example, where HRW claims that “Israeli settlement policies also violate international human rights prohibitions against discrimination.”  Or here, where HRW argues, with regard to the blockade of Gaza, that “Washington should disassociate itself from unlawful Israeli policies that directly harm civilians.”  Or here, in the Guardian editorial that Bernstein mentions, where Ken Roth specifically claims that Israeli did not have an official policy during Operation Cast Lead of intentionally targeting civilians, but did have an official policy of “indiscriminate use of heavy artillery and white phosphorous in densely populated areas, and its massive and deliberate destruction of civilian buildings and infrastructure without a lawful military reason. In Bernstein’s world, however, this consistent practice means nothing.  Unless HRW adds the “caveat” that “HRW does not claim that this incident reflects official government policy,” we have to assume that every violation of international law identified by HRW took place pursuant to an official policy of the Israeli government.

What makes Bernstein’s burden-shifting argument even more ridiculous, however, is that a number of the statements he singles out directly contradict the idea that HRW believes that all of the problematic incidents reflect official Israeli policy.  Consider, for example, HRW’s claims concerning Israel’s statements concerning the “indiscriminate” use of white phosphorous.  The word “indiscriminate” means, of course, “thoughtless” or “in a random manner” or “impartially,” depending on the dictionary.  HRW might believe that Israel has an official policy of using white phosphorous in an indiscriminate manner — and likely does, given Roth’s recent editorial — but the existence of such a policy would mean that Israel did not intentionally target civilians using white phosphorous.

The same problem (for Bernstein) arises concerning HRW’s claim that “The Israel Defense Forces have for years permitted a pervasive culture of impunity regarding unlawful Palestinian deaths.”  Claiming that Israel fails to properly supervise its soldiers is, of course, very different than claiming that Israel fails to properly supervise its soldiers in order to execute a government policy of intentionally targeting civilians.  Indeed, the statement pretty clearly indicates that, in HRW’s view, the problem is the failure to supervise, not the existence of an official policy of intentionally targeting civilians.  Again, this conclusion can only be avoided if we assume — ridiculously — that HRW is always required to indicate when its conclusions about specific incidents do not reflect official policy.

Bernstein claims that Roth’s editorial represents “yet another blow to HRW’s credibility, both because of its conflict with Goldstone’s current position, and because of Roth’s current misrepresentation of HRW’s views.”  By so grossly misrepresenting HRW’s views, Bernstein only undermines his own credibility.

POSTSCRIPT: For an excellent discussion of what Goldstone actually retracted, as opposed to right-wing distortions of the editorial, see Bill Schabas’ recent post here.