The Right Fight

“Given the war crimes committed by both sides in Gaza, what can be done?” asks Kenneth Roth in the Review’s July 18 issue. Using international humanitarian law as a standard, he finds that Israel’s continued bombardment of civilian areas and its blocking of aid trucks, as well as Hamas’s brutality on October 7 and many of its actions since, constitute ongoing war crimes. “In theory,” he writes, “each side can prosecute its own war criminals, and the International Criminal Court [ICC] is supposed to defer to conscientious national prosecutions of war crimes. But it is inconceivable that Hamas would do so, and the Israeli government has no history of prosecuting senior officials for abusive wartime practices.” The action of an international institution like the ICC is therefore vital. Moreover, Roth argues, it is incumbent upon the American president to impose consequences on the Netanyahu regime: “Justice is significant, but it is even more important to stop the killing and starvation now.”

Roth began his career as a federal prosecutor; since then he has been a leading advocate for international human rights for decades. As the executive director of Human Rights Watch (HRW) from 1993 to 2022, he oversaw a significant expansion of the organization’s research and work in conflict zones; in 1997 HRW shared the Nobel Peace Prize for its efforts to ban landmines. A long-time contributor to the Review—on subjects ranging from Bill Clinton’s policies in Haiti to the Obama administration’s drone warfare—Roth is also a prolific contributor to The Guardian, Foreign Affairs, and Foreign Policy, among other publications. 

I e-mailed Roth this week to ask him about interpreting death toll figures, the International Criminal Court’s cases against Israeli and Hamas officials, and his new book, Righting Wrongs: Three Decades on the Front Lines Battling Abusive Governments, which will be published in February.

Carolyn Neugarten: A group of public health scientists and researchers recently argued in The Lancet that the death toll for Gazans is far higher than the most commonly reported numbers, likely surpassing 186,000 people. How do you evaluate the credibility of the range of reported casualties, from the Gaza Ministry of Health, Lancet, or the Israeli government?

Kenneth Roth: The death figures issued by the Gaza Ministry of Health have been widely found to be credible, but with a few caveats. They do not distinguish between civilians and combatants. Israel has offered estimates of the number of combatants killed, but Israeli officials tend to treat most dead Palestinian males as if they were Hamas fighters, which isn’t close to true. The Ministry of Health counts bodies that are found by health care officials, but not bodies that are still buried in rubble. And as The Lancet has pointed out, they count only deaths caused directly by warfare, not deaths caused indirectly by the privations of war.

As I noted in my article, Israeli forces have destroyed a large portion of Gaza’s health care facilities. That means Palestinians there are often unable to receive treatment, not only for war-related injuries but also for ordinary health matters, from cancer to childbirth. There is now a polio outbreak in Gaza, due to a combination of interrupted vaccination programs and the mass forced displacement of people, who often must live in crowded, makeshift conditions. Basic sanitation infrastructure has been significantly damaged. These conditions are ripe for the spread of infectious diseases at a moment when the medical capacity to respond is limited.

Because of a similar cascade of harms, the International Criminal Court charged several Russian military commanders with war crimes as well as crimes against humanity for attacking the electrical infrastructure in Ukraine. I would like to see similar charges brought against Israeli military commanders for the IDF’s attacks on the medical infrastructure in Gaza. The Israeli government usually tries to justify these attacks by blaming some ostensible Hamas presence, but the costs for Palestinian civilians are often hugely disproportionate.

In your essay, you enumerate past and ongoing violations of international humanitarian law by both the Israeli authorities and Hamas. In the absence of an enforcement mechanism, how can international human rights institutions protect civilians in Gaza?

In societies where the rule of law is strong, people whose rights have been violated can seek redress in a civil court, which has the power to compel a government to respect rights. But in other situations, the defense of rights depends on nonjudicial means of exerting pressure on offenders, typically by shaming the abuser or imposing diplomatic or economic consequences. Most governments claim to respect human rights. Israel is no exception, which is why the careful documentation of its war crimes in Gaza has some deterring effect. (Hamas is less attentive to its reputation.) But Benjamin Netanyahu cares most about the continued flow of US military aid and arms sales. Because Joe Biden has been unwilling to condition that assistance on respect for international humanitarian law in Gaza, Netanyahu has largely ignored complaints from the US government and many others about the Israeli military’s bombing and starving of Palestinian civilians. The sole exception has been Biden’s withholding further delivery of two-thousand-pound bombs, which I mention in my article, because they have caused such devastation to Palestinian neighborhoods in Gaza. Yet Netanyahu has responded as if this wholly appropriate effort to limit US complicity in Israeli war crimes was a profound affront to Israel.

The other important tool for enforcing rights in Gaza is the prospect of prosecution by the International Criminal Court (ICC). No one wants to go to prison. Assuming, as is likely, that arrest warrants are issued for Netanyahu, defense minister Yoav Gallant, and three senior Hamas military commanders, their worlds will become much more circumscribed. If they were to land in any of the 124 ICC member states, those governments would be obliged to surrender them to The Hague for trial.

Yesterday, UK prime minister Keir Starmer dropped the Conservative Party–backed challenge to the arrest warrant for Benjamin Netanyahu issued by the ICC, with a spokesperson saying that “this is a matter for the court to decide on.” What effect might this warrant have on Israel’s prosecution of its campaign in Gaza?

The Conservatives’ challenge was based on the weak argument that Palestine is not enough of a state to join human rights treaties and hence to confer jurisdiction on the ICC, even though most governments and the pretrial chamber of the ICC have, based on a UN General Assembly resolution, taken the opposite view. Just as it appeared that arrest warrants were imminent, the German government said that it would file a challenge apparently based on the ridiculous argument that governments cannot be expected to investigate themselves in wartime and hence the ICC should wait until the war ends to charge Israeli officials. I know of no government that has previously made such a radical claim. Germany, for example, said nothing when Vladimir Putin was charged with war crimes in the course of his full-scale invasion of Ukraine. And as I mentioned in the article, Israel has no history of prosecuting senior officials for war crimes even long after a conflict has ended. Netanyahu’s speech to Congress on Wednesday showed contempt for the court, not a conscientious effort to examine its charges.

Although Israel has ignored International Court of Justice rulings that ordered certain safeguards in Gaza to protect Palestinians’ rights under the Genocide Convention—as well as an end to the land grab represented by the separation barrier that has gobbled up large parts of the West Bank—Netanyahu and Gallant will have a harder time ignoring ICC charges. An important element of any criminal charge is intent, and the longer they obstruct humanitarian aid to Palestinian civilians in Gaza and impede the distribution of what little aid does enter the territory (such as by having the Israeli military shoot the police who had been maintaining order), the more they provide evidence of the deliberate nature of the starvation strategy at the heart of the charges. The prospect of additional ICC charges for bombardment that is indiscriminate or causes disproportionate harm to civilians should also give other military commanders pause (they could be named in future charges), which may account for the pressure that the Israeli military is putting on Netanyahu to recognize the futility of his quest to “destroy” Hamas and to agree to a ceasefire-for-hostages deal that could conclude his forever war.

How do you think the human rights movement changed during the years you were executive director of Human Right Watch? What place do HRW—and other human rights NGOs—have in contemporary global crises, and how do you anticipate that changing in the years to come?

I saw vast changes during my three decades directing Human Rights Watch. Most significantly, there has been an explosion in human rights groups and activists focusing on virtually every country, either from a base within the country or, if that is not feasible, from exile. These organizations bring much-needed nuance and, often, a valuable local perspective. The communications revolution, especially the emergence of smartphones and social media, have made it far more difficult for governments to hide repression, as the Khmer Rouge did in Cambodia or the Nazis did during the Holocaust. It is also much easier to bring human rights reporting to journalists worldwide, who can amplify findings and reinforce the resulting stigmatization.

But the defense of human rights is also more difficult because power has become more diffuse. In addition to enlisting Western governments that profess a commitment to upholding human rights in their foreign policies, the human rights movement must increasingly address a range of regional actors whose dedication to human rights may be more equivocal. Some, such as the Chinese government, are openly hostile; Beijing would redefine human rights to require little more than economic growth, regardless of the attendant repression. The movement must therefore build broad global alliances to maximize pressure on offenders. This approach has worked to hold many repressive governments to account in fora such as the UN Human Rights Council, but certain governments—notably, China, Egypt, Ethiopia, and Saudi Arabia—have largely succeeded in using their economic or diplomatic clout to fend off scrutiny. We still have much work to do. 

How do you think writing in public periodicals can or should advance human rights? Which writers do you turn to on the subject?

I have long published in leading journals to provide an analytic supplement to ordinary human rights reporting. For example, I wrote about war crimes in Gaza for the Review in order to help people understand how the war is being fought. We see the devastation caused, the high death toll—but is that a regrettable yet inevitable result of conflict, or is it the product of violations of international humanitarian law? By describing in detail the ways in which Israeli attacks have been indiscriminate or have caused disproportionate harm to civilians—both war crimes—I hope to demonstrate that the civilian toll is in large part the product of the Netanyahu government’s unlawful policy choices. Even when Hamas acts unlawfully, by using civilians as shields or by operating in ways that endanger them, the Israeli military has greatly compounded the harm to civilians with its own war crimes.

Published articles are also useful for highlighting how governments respond to human rights violations abroad. For example, I show that while Biden has spoken out against Israel’s killing and starving of Palestinian civilians, he has undermined that message by challenging the ICC’s charges against Netanyahu and Gallant and by continuing to fund and arm Israel’s military effort in Gaza. By calling attention to inconsistencies in stated foreign policy priorities, public writing can help to generate pressure for a more effective defense of human rights.

Among the writers I most admire are people who bring a big-picture analysis to contemporary human rights problems, especially with a historical perspective. I have in mind people such as Anne Applebaum, Timothy Garton Ash, Roger Cohen, Howard French, Ivan Krastev, Timothy Snyder, and Nathalie Tocci. There are also people who specialize in particular countries and contribute great nuance to our understanding, such as Denise Dresser for Mexico, Stephen Kotkin for Russia, Oliver Steunkel for Brazil, or Nathan Thrall for Israel and Palestine.

How and why did you come to write Righting Wrongs, and what lessons from your long career do you hope to share with readers?

I had two reasons for writing the book. First, my experience has been that many people believe in human rights but don’t understand how rights can be defended practically. They think of human rights activists as well-meaning but ineffectual. I have long found great value in pulling back the curtain and showing how, in a concrete way, pressure can be put on governments. If I bring readers into the room as my colleagues and I confront abusive officials or enlist powerful allies, they can better appreciate that the defense of human rights is a hard-ball endeavor, that it is not about holding hands and singing kumbaya but about imposing consequences that shift the cost-benefit analysis behind governmental repression. The more that people understand the nuts and bolts of defending human rights, the more they join the effort, and the stronger the movement becomes.

I also wanted to take on skeptics. For as long as I have been involved in the defense of human rights, prominent critics have been decrying the death of the human rights movement, claiming that it no longer has the clout it once had. The best response is to detail examples of our impact. My book is filled with them. I describe the strategies we pursued and the advances (and setbacks) that resulted. Even autocratic governments go to great lengths to avoid the pressure that we exert, which is testament to its significance. By no means do we always win, but for the many years that I headed HRW we regularly had enough effect to keep me going. Even today, though I have left the organization, I continue to be actively engaged in the effort.

However, as I point out in the book, it is a mistake to measure the success of the human rights movement by the permanence of its victories. Governments are always tempted to violate human rights as a way of staying in power and enjoying its benefits. Our never-ending job is to push back. The result is an incessant struggle. That can be frustrating, but it is also invigorating, because I know how much worse the world would be if there were not a strong human rights movement resisting the worst impulses of governments.