The Attack on Human Rights Watch

On August 3—three weeks after a Lebanese Hezbollah raid into Israel set off a war that lasted until August 14—Human Rights Watch published a report, “Fatal Strikes: Israel’s Indiscriminate Attacks Against Civilians in Lebanon,” that inspired a series of vitriolic attacks on the organization’s credibility. According to some of the critics, the organization’s executive director, Kenneth Roth, is biased against Israel and an anti-Semite. Unfortunately, the criticisms are based on misunderstandings and distortions of international humanitarian law. They contribute to an atmosphere that makes rational discussion in the United States of Israel’s policies and practices increasingly difficult.

One of the cases discussed in Human Rights Watch’s report was the killing of twenty-one civilians fleeing the border village of Marwahin:

On July 15, an Israeli strike on a convoy of civilians fleeing from the Lebanese border village of Marwahin killed twenty-one people, including fourteen children. Many villagers fled after the IDF [Israel Defense Forces] warned them to evacuate ahead of the threatened attack. In addition, a relative of one of the victims said, Hezbollah had stored weapons in the village, and the residents feared a retaliatory IDF attack. The villagers of Marwahin are Sunni and have long-standing tensions with the Shi’a Hezbollah organization….

At 11 a.m. a group of villagers left Marwahin in a convoy of vehicles, on the single main road out of the village. On the way, between the villages of Chamaa and Biyada, two weapons believed to have been fired from Israeli helicopters struck a white pick-up and a passenger car in the convoy. A photographer for an international news agency arrived at the scene two hours after the attack. He told Human Rights Watch that he found a white pick-up truck and a passenger car completely destroyed, and counted sixteen bodies at the scene, including many children. He did not see any armed persons among the bodies. UNIFIL [United Nations Interim Force in Lebanon] retrieved sixteen bodies from the scene, and stated that their medical teams came under fire during the rescue operation. A total of twenty-one people died during the attack, based on a list of names provided to Human Rights Watch by the relatives, and on the number of bodies ultimately received at the Tyre Government hospital.

The report that describes this episode and others that involved the killing of 153 civilians—more than one third of those reported killed in Lebanon during the first two weeks of the war—points out that international humanitarian law (IHL), or the law of war, imposes a duty to distinguish between combatants and civilians.¹ It is only permissible to target combatants. IHL prohibits indiscriminate attacks, and such attacks include those that employ a means of combat (generally, the kinds of weapons that are used) or a method (the way such weapons are used) that is, by its nature, likely to injure or kill civilians or civilians and combatants without distinction. This does not mean that military targets are immune from attack because they are located in the immediate vicinity of civilians. Indeed, those who locate weapons in civilian homes and populated areas themselves—as was charged against Hezbollah—are guilty of serious violations of IHL. Yet attacks must attempt to focus on military targets and, as Human Rights Watch pointed out:

A deliberately indiscriminate attack that causes incidental death or injury to civilians or civilian objects that is clearly excessive in relation to the concrete and direct overall military advantage anticipated from the attack is a war crime.

If the Lebanese targeted were only civilian supporters of Hezbollah, attacks on them were forbidden by IHL; so was targeting Israeli civilians who support Israel’s armed forces—the overwhelming majority of Israelis. On the other hand, if the Israel Defense Forces had information that certain people were combatants, or had a role in military command, they were legitimate targets.

In the case of the villagers fleeing Marwahin, the means of combat used—a helicopter attack on a passenger car and a pickup truck—meant that the IDF had a responsibility to determine whether the military advantage of killing those who might have been legitimate targets outweighed the harm to the civilians, including fourteen children, who died in the attack. If, for example, a civilian house was a site from which rockets were launched that could kill Israelis, the military advantage of destroying that house and rocket launcher might justify civilian casualties. Yet since the vehicles fleeing Marwahin could not have been used for such purposes and Human Rights Watch found no evidence that they were involved in Hezbollah military activity, this appears to have been an indiscriminate attack in violation of IHL.

In issuing its report, Human Rights Watch noted that it had simultaneously documented violations of IHL by Hezbollah, “including a pattern of attacks that amount to war crimes.” Summarizing those separate findings in its August 3 report, the organization said that between July 12 and 27, Hezbollah had launched a reported 1,300 rockets into predominantly civilian areas in Israel, killing eighteen civilians and wounding more than three hundred. Some of the rockets, it said, were packed with thousands of metal ball bearings that sprayed more than one hundred meters from a blast. HRW’s finding on the use of the ball bearings, which is a violation of IHL, was the first disclosure of this practice.

One of the fundamental principles of IHL is that violations by one side in a conflict do not justify violations by the other side. Each has an independent duty to respect IHL. Hezbollah’s crimes against Israeli civilians do not justify indiscriminate attacks by Israel against civilians in Lebanon. Summarizing its findings with respect to Israel’s conduct, Human Rights Watch said:

By consistently failing to distinguish between combatants and civilians, Israel has violated one of the most fundamental tenets of the laws of war: the duty to carry out attacks on only military targets. The pattern of attacks during the Israeli offensive in Lebanon suggests that the failures cannot be explained or dismissed as mere accidents; the extent of the pattern and the seriousness of the consequences indicate the commission of war crimes.

One of those who responded angrily to the Human Rights Watch report was Abraham Foxman, national director of the Anti-Defamation League. He said, “Human Rights Watch’s approach to these problems is immorality at the highest level,” and he accused Kenneth Roth of engaging in “a classic anti-Semitic stereotype about Jews” for using the term an “eye for an eye” when referring to Israel’s policies.² Rabbi Avi Shafran, a spokesman for Agudath Israel of America, a leading Orthodox group, compared Roth to Mel Gibson.³ Martin Peretz of The New Republic said that “this Human Rights Watch libel has utterly destroyed its credibility, at least for me.”⁴ And Harvard law professor Alan Dershowitz, never to be outdone, wrote in The Jerusalem Post, “When it comes to Israel and its enemies, Human Rights Watch cooks the books about facts, cheats on interviews, and puts out predetermined conclusions that are driven more by their ideology than by evidence.”⁵

Attacks on Human Rights Watch by those who resent its criticism of one or another government, particularly at times of armed conflict, are nothing new. What does seem to be unique in this case is the virulence of the personal campaign against Kenneth Roth, the organization’s widely respected executive director, a Yale Law School graduate and former federal prosecutor who joined Human Rights Watch as deputy director in 1987 and has held his present post since 1993. Under Roth’s leadership, most observers would probably agree, Human Rights Watch is the preeminent source of reliable information on human rights abuses throughout the world. Hardly any nongovernmental organization anywhere is comparably influential with respect to international public policy. It is, perhaps, awareness that reporting by Human Rights Watch carries such weight that makes those who object to its reporting on Israel’s conduct in Lebanon so intent on disparaging its performance. Attacking its director seems to be a deliberate strategy intended to suggest that the organization has not simply made errors but that its reporting reflects deep bias against Israel and, if Abraham Foxman and others are to be believed, against Jews.

Helsinki Watch, the first component of what became Human Rights Watch, was established in 1978.⁶ During the 1980s, additional Watch Committees dealing with different regions were established, starting with Americas Watch in 1981. As the organization’s reporting became global later in the decade, it began using the name Human Rights Watch. Among its early contributions to the human rights field was the monitoring by Americas Watch to ascertain whether military forces in Central America conducted themselves in accordance with international humanitarian law. It reported both on violations of human rights by guerrilla forces fighting governments as well as on abuses by governments. Human Rights Watch has concentrated on reporting abuses committed by all sides in armed conflict and it also continues to devote extensive attention to nongovernmental abuses. An example is a 160-page report published by Human Rights Watch in 2002, “Erased in a Moment: Suicide Bombing Attacks Against Israeli Civilians.” Probably the leading study of the subject, it included a chapter on “Structures and Strategies of the Perpetrator Organizations” dealing with Hamas, Islamic Jihad, the al-Aqsa Martyrs’ Brigades, and the Popular Front for the Liberation of Palestine. Wherever possible, it named those responsible for crimes. Another chapter on “Financial and Logistical Support” dealt with the support given to suicide bombers by Iran, Syria, and Iraq (in the period when Saddam was still in power) as well as various Palestinian groups. A separate chapter addressed “The Role of the Palestinian Authority.”

Previous reporting by Human Rights Watch was criticized most severely in the early 1980s when Americas Watch investigated abuses during the conflicts in El Salvador, Nicaragua, and Guatemala. Officials of the Reagan administration, such as Elliott Abrams, first as assistant secretary of state for human rights and then for inter-American affairs, regularly attacked its findings. They were aided by allies in Congress and by some in the press, particularly on the editorial page of The Wall Street Journal. Other criticisms were published in Martin Peretz’s magazine The New Republic, where one of the editors, Fred Barnes (now of The Weekly Standard), denounced reports that reflected badly on the Reagan administration.

Those attempts to denigrate Human Rights Watch’s reporting had unintended consequences. They increased attention to the abuses that were the subject of the reports. Also, some of the journalists covering the wars in Central America conducted their own investigations of human rights abuses that the Reagan administration claimed had never taken place and found that Human Rights Watch’s reporting was accurate. That helped to give the organization credibility with the press and its reputation was much enhanced. It seems possible that Human Rights Watch would not have achieved the prestige it enjoys today were it not for the attacks it faced during its formative years.

One of the arguments of those who are critical of Human Rights Watch’s reporting on the Middle East is that the organization devotes too much attention to alleged abuses by Israelis. A corollary is that it pays insufficient attention to violations of human rights by Israel’s antagonists in the region. Yet a glance at the back pages of the “World Report” published annually by Human Rights Watch where it lists all its publications suggests that these criticisms are not well founded. Typically, Human Rights Watch publishes more than a hundred reports each year. In all, it issued more than 350 reports in 2003, 2004, and 2005 on the seventy or so countries that it monitors. Of these, just five dealt with Israel and the Palestinian occupied territories while another sixty reports dealt with various Arab countries and Iran. The largest number of reports concerned abuses in Iraq, Sudan, and Egypt, but reports were also published on Iran, Saudi Arabia, Syria, Algeria, Tunisia, Morocco, and Jordan. Iraq was particularly important during this period because the US-led invasion took place in 2003, but starting more than a decade earlier the country was also the subject of the most intensive and costly project ever undertaken by Human Rights Watch. The organization documented the crimes committed by Saddam Hussein’s regime against the Kurds during the Anfal campaign of the 1980s, for which Saddam is now on trial in Baghdad. Two of HRW’s reports on Iraq under Saddam were published in book form by Yale University Press.⁷

To the extent that the current campaign against Human Rights Watch is organized, the driving force has been a newspaper launched in 2002, The New York Sun, which accused Kenneth Roth of anti-Semitism in a two-column editorial.⁸ The Sun is edited by Seth Lipsky, a former reporter for The Wall Street Journal who was the founding editor in 1990 of The Forward, an English-language Jewish weekly that sought to link itself to the tradition of the Yiddish-language Jewish Daily Forward, a newspaper with a social-democratic political outlook that had a wide readership among Yiddish-speaking immigrants. (Isaac Bashevis Singer published most of his work in the Jewish Daily Forward.) But Lipsky was forced out in 2000 because some of the owners of The Forward found him too right-wing.⁹ He launched The New York Sun with investments from the publishing tycoon Conrad Black (who is now being prosecuted for corporate crimes) and other financial backers intent on promoting neoconservative views. Black’s wife, Barbara Amiel, became a columnist and the Sun’s contributors have included right-wing commentators such as R. Emmett Tyrell Jr. and Peggy Noonan.

On July 25, just two weeks after the beginning of the war in Lebanon, the Sun published an attack on Human Rights Watch by Avi Bell, whom it identified as a law professor at Israel’s Bar Ilan University and a visiting professor at Fordham University Law School.¹⁰ Bell attacked a Human Rights Watch statement published the previous week entitled “Questions and Answers on Hostilities Between Israel and Hezbollah”; he particularly objected to a question it posed, “What is Hezbollah’s status in relation to the conflict?,” and to the answer supplied by HRW:

Hezbollah is an organized political Islamist group based in Lebanon, with a military arm and a civilian arm, and is represented in the Lebanese parliament and government. As such a group, and as a party to the conflict with Israel, it is bound to conduct hostilities in compliance with customary international humanitarian law and common Article 3.¹¹

This was deficient, according to Bell, because it did not address the question of aggression, and he accused Human Rights Watch of “whitewashing Hezbollah’s crimes of aggression.” Another alleged fault was the failure to label Hezbollah’s acts as genocide despite the fact that Hezbollah’s leader had made statements indicating a desire to kill Jews. In early September Joshua Muravchik, writing in The Weekly Standard, also criticized HRW’s failure to denounce aggression and claimed that HRW failed to accuse Hezbollah of genocide because this would divert it “from its main mission of attacking Israel.”¹²

One of the difficulties with these criticisms is that they suggest that Human Rights Watch should abandon the standards it has applied in the other conflicts it has addressed. The organization has never labeled any party to any conflict as an aggressor, holding that the concept of aggression is poorly defined. As Israel and the United States argued at the Rome conference in 1998 when the treaty for the International Criminal Court was adopted, it is impossible to come up with a definition of aggression that is not politically controversial. Kenneth Roth pointed out in a response to Bell:

The question of who started any given conflict or who is most at fault invariably leads to lengthy historical digressions that are antithetical to the careful, objective investigations into the contemporary conduct of warring parties in which the organization specializes.¹³

To this, it could be added that if Human Rights Watch were to start making pronouncements about who is the aggressor in a particular conflict, it would lose much of its ability to conduct investigations on the territory of warring parties; and its credibility in speaking out about abuses would vanish if it were to take sides.

As for genocide, like others who address human rights issues responsibly, Human Rights Watch is sparing in its use of the term because genocide is the ultimate crime and it would be a mistake to diminish its significance by using the term indiscriminately. There have been vast numbers of killings, many of them where ethnic or religious motives were a factor, in such countries as the Democratic Republic of Congo, Burundi, Liberia, Sierra Leone, Uganda, Sudan, Burma, India (Kashmir, Gujarat), Indonesia, East Timor, Afghanistan, Iraq, and Russia (Chechnya), but there has been no situation in the past decade that Human Rights Watch has labeled as genocide. It has used that label only three times in its history: to describe the slaughter of Bosnian Muslims in the early 1990s; of Rwandan Tutsis in 1994; and of Iraqi Kurds by Saddam Hussein’s regime in the Anfal campaign of 1988.

Among the factors it considered before using the term were the scale and systematic nature of the killing. In the cases that HRW labeled as genocide, the number of those killed ranged from several scores of thousands to several hundreds of thousands. Human Rights Watch described the killing of Israeli civilians as war crimes but the total number killed throughout the conflict with Hezbollah—forty-three, of whom at least eighteen were Israeli Arabs—is often exceeded in a single day by the number of Iraqis killed in sectarian violence.

The principal claim of bias against Human Rights Watch was that it failed to find Israel blameless for the Lebanese civilian deaths it caused in view of Hezbollah’s practice of mixing with the civilian population and placing its rocket launchers in populated areas. This is the basis for Alan Dershowitz’s charge that “Human Rights Watch cooks the books.” Yet the fact that Hezbollah fighters mingled with the civilian population in some places does not mean that all attacks on civilians were justified. If that were the case, it might also be argued that attacks on Israeli cafés and buses are justified because Israeli soldiers patronize cafés and ride buses. Such a stance would clearly be monstrous. Each attack must be justified by the presence of specific military targets and by specific consideration of the incidental harm to civilians in the vicinity. Inevitably, of course, in a war setting, mistakes will be made. Hence it is important to engage in systematic monitoring such as that conducted by Human Rights Watch to assess patterns and practices.

Alan Dershowitz claims that “Human Rights Watch ignored credible news sources” which pointed out Hezbollah’s practice of mingling with civilians. His article in The Jerusalem Post cites eight press accounts to prove his point. In response, Sarah Leah Whitson, Middle East director of Human Rights Watch, wrote:

Dershowitz cites numerous articles to knock down a straw man. Human Rights Watch never denied, in the words of our report, that sometimes Hizbollah “store[s] weapons in or near civilian homes and [its] fighters placed rocket launchers within populated areas.” Indeed, we called these Hizbollah abuses “serious violations of the laws of war because they violate the duty to take all feasible precautions to avoid civilian casualties.” Our point was that there was no evidence of such Hizbollah presence for some two dozen cases, representing a third of Lebanese civilian deaths at the time, that Human Rights Watch field investigators examined in depth.

Ms. Whitson did not go on to point out, as she might have, that closely examined, the eight press accounts cited by Dershowitz prove less than he suggests. Two of them refer to quotations in Canadian publications from a retired Canadian military officer, General Lewis MacKenzie, who was apparently nowhere near Lebanon when the conflict took place but speculated about Hezbollah’s practices. As Dershowitz may not have known but should have found out before citing the general twice, this is characteristic of MacKenzie. When he was commander in 1992 of UN peacekeepers in Sarajevo, he became notorious for accusing Bosnia’s Muslims of attacking themselves. In his memoir, Peacekeeper, he recalled that he told President François Mitterrand of France that “there is strong but circumstantial evidence that some really horrifying acts of cruelty attributed to the Serbs were actually orchestrated by the Muslims against their own people, for the benefit of an international audience.”¹⁴ As National Public Radio reporter Tom Gjelten pointed out:

MacKenzie took Serb army commanders at their word when they said that they were not responsible for the bombing of the breadline on Vaso Miskin Street in May [1992]. He accepted their claim that the Bosnian army had laid a ground mine at the site and staged the massacre to win international sympathy…. The “evidence” that it was a Muslim-laid mine came entirely from Serb military sources, and all of it eventually proved bogus.¹⁵

As a frequent visitor to Sarajevo during the war, I went to the site and saw the distinctive flower-like splash of a mortar shell on the pavement, which looks nothing like the damage done by a mine. The journalist David Rieff pointed out that MacKenzie “never actually visited the site.”¹⁶

Another of Dershowitz’s citations is to the Canadian newspaper The National Post, one of Conrad Black’s ventures; it did not say what did happen but what “could have” happened. Another, from Newsday, reported that a woman whose house was destroyed said that Hezbollah fighters “gathered in citrus groves about 500 yards from her home,” that is, the length of five football fields away. Yet another article cited by Dershowitz is an account in an Australian newspaper by a journalist who seems not to have left that country but relied on information from a Melbourne tourist who returned home. Another is a one-sentence quote from a press release by the United Nations Interim Force in Lebanon that repeats information published in an extended account in the report by Human Rights Watch.

The two most substantial accounts are those that appeared in The New York Times and The New Yorker. The Times quotes a witness who said that “Hizbollah fighters in groups of two and three had come into Ain Ebel, less than a mile from Bint Jbail.” Human Rights Watch had included in its report a description of an episode in which four civilians were killed in Bint Jbail itself, but did not discuss Ain Ebel. The New Yorker account discusses Israel’s destruction of a mosque—not mentioned in HRW’s report—in which a witness said that Hezbollah had stored bombs in the basement, but it had taken them away by truck two days before the mosque was destroyed.¹⁷ None of the eight items casts doubt on any of Human Rights Watch’s reporting.

The attacks on Human Rights Watch are silent with respect to its reporting on such matters as Israel’s bombing of civilian apartment houses in Beirut and its use of cluster bombs. As is widely known, an entire neighborhood of southern Beirut that was home to much of the city’s Shia population was largely destroyed in Israeli air attacks. Hezbollah’s political headquarters were in this area, but that did not justify destruction of all the civilian residences in the general vicinity. Because Israel gave warnings before its bombing raids, the civilian death toll was kept down. It was also kept down in Israel by evacuations from the northern part of the country and because many residents of the area within range of Hezbollah’s rockets took refuge in bomb shelters.

Still, the fact that most civilians in the targeted areas were able to save their lives does not legitimize the conduct of either side. Israel’s warnings in southern Lebanon were not wholly effective because some residents were too old or infirm to leave, had nowhere to go, could not afford high fares charged by drivers, or feared attacks on convoys. Beirut residents were able to evacuate more easily. But the Beirut buildings were so far from Israel that they could not be used to launch rockets; it also seems doubtful that they would have had value as storage places for military equipment since that equipment could not have been readily deployed for combat purposes. Hence the raids punished the civilian residents of the neighborhood for no legitimate reason.

No doubt, most of the Shia residents of southern Beirut whose homes were destroyed were supporters of Hezbollah. Again, however, only those among them who were combatants or military commanders were legitimate military targets. Therefore, the question again arises: Were these indiscriminate attacks? Was the direct military advantage that Israel expected to gain from these attacks sufficient to justify the incidental death or injury to civilians and to civilian objects such as their homes?

As for cluster bombs, they were not discussed in Human Rights Watch’s August 3 report but only in subsequent statements because it was later in the conflict that Israel began to use them extensively. There is no question that the attacks in which they were used were “indiscriminate” according to international law. They are, moreover, plainly more lethal than the ball bearings that, as reported by Human Rights Watch, Hezbollah used in its rockets; they can cause death and injury not only when they are first used but long after as well. If cluster bombs have a military purpose, it is for use on battlefields where they may kill large numbers of combatants spread over a wide area. They are utterly inappropriate, as HRW has repeatedly pointed out, when used as a weapon against a military force operating in or near an area populated by civilians.

According to Jan Egeland, under-secretary-general of the United Nations for humanitarian affairs, Israel dropped well over 90 percent of its cluster bombs in the seventy-two hours between the time when the Security Council resolution on a cease-fire was adopted in New York and when the resolution went into effect on August 14. He reported that the UN had identified some 359 cluster-bomb strike locations in which more than 100,000 unexploded small bombs would continue to maim and kill civilians for a long time to come.¹⁸ In this respect, cluster bombs are similar to land mines in their effect.

The New York Sun concluded one of its editorials by saying:

When the history of this period is written, the record will show that during the war against Israel and the Jewish people, Human Rights Watch and Kenneth Roth joined in the effort to demonize the Jewish state at a time when righteous individuals were trying to defend it.¹⁹

It is usually futile to argue with people who believe that the righteousness of their cause justifies illegal means. Yet Human Rights Watch pointed out that the Israel Defense Forces had responded constructively to its reports, in some cases asking for additional details in order to follow up with its own internal investigations. As often seems to be the case, it is far easier to discuss such matters rationally in Israel than in the United States. Here, time and again, rational discussion is precluded by charges of anti-Semitism against anyone with the temerity to criticize Israeli policy or practice.

—October 4, 2006