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Double Standards: War Crimes, Collective Punishment, Human Shields, Abducted Soldiers

War crimes
Human rights and international law are based on universal norms. The application of those norms and the appropriation of this language to support narrow interests or ideological objectives, violate this universality. In this section, we provide evidence of HRW’s consistent double standards and disproportionate focus on allegations against Israel.

One key indicator is HRW’s “War Crimes / Crimes against Humanity” section which is produced by the “International Justice” division.  The website includes reports and advocacy documents which allege war crimes in various countries, with Darfur, the Congo, and Israel receiving the most attention in the first six months of 2009. This is not a sudden change in HRW’s rhetoric, but rather a development that can be seen over a number of years. In 2005, Israel was the only country in the MENA division for which the term “war crimes” was used.  Perhaps in response to criticism, the term was more widely applied in 2006: Israel (15 times), Iraq (28), Iran (4), Jordan (1), Syria (4) and Hezbollah (19).100  But in 2007 HRW returned to the practice of directing these accusations disproportionally at conflicts involving Israel.  In that year, Israel was charged with war crimes 12 times, the Palestinians 4, Hezbollah 16, and Iraq and Lebanon combined only received seven such allegations.  In 2008, HRW used “war crimes” in relation to the Israeli-Palestinian conflict seven times.  In six of these instances the accusation was directed at Israel, and only once (HRW Report Feb. 6, 2008) was it used to describe “indiscriminate Palestinian rocket and suicide bomb attacks against Israeli civilians.” In the few cases critical of Palestinian rocket attacks, HRW notably fails to label them as war crimes. No other Middle Eastern state was accused of “war crimes” in 2008.  A search of HRW’s website for the use of this term in 2008 returned 213 results, concentrated on Sudan, leaders of the former Yugoslavia, Congo and Uganda.

In 2009, during and following the Gaza conflict, these accusations and the use of accompanying anti-Israel rhetoric increased significantly. In a single report on Israel, White Flag Deaths (HRW Report Aug. 13, 2009), which is based on very weak and highly misleading claims, HRW included 15 accusations of “war crimes.”  Similarly, in the text of Precisely Wrong: Gaza Civilians Killed by Israeli Drone-Launched Missiles (HRW Report June 30, 2009) the term appears in five places. In the only report on Hamas rocket attacks against Israel, Rockets from Gaza, the term “war crimes” is used in six places to refer to Hamas alone, while a number of other citations are either “balanced” or make accusations against Israel (HRW Report August 6, 2009).
 

Collective punishment
In 2007 Human Rights Watch, together with several other political NGOs, began using the phrase “collective punishment” to refer to Israeli defense against Palestinian rocket attacks from Gaza. HRW’s ideology-driven application of this phrase is inconsistent with the precise legal meaning of this term.  Collective punishment in fact refers to criminal penalties imposed against a group of people in the form of beatings, murder or imprisonment, for the acts attributed to members of that group. HRW’s use of the term in this idiosyncratic manner is applied solely to Israel, the only situation in which HRW alleges that a blockade in response to military aggression constitutes “collective punishment.” In all other cases in which HRW uses this term, it does so in a manner more consonant with the legal definition.

Cases that are somewhat parallel to that of Israel and Gaza, but are not labeled “collective punishment,” include Azerbaijan’s blockade of Nagorno Karabakh and Armenia, as described in Human Rights Watch 1994 World Report:

Electricity, gas, oil and grain – necessary for the basic human needs of civilians in Armenia – were in extremely short supply… The lack of gas and electricity deprived Armenians of heat in the freezing winter… a rise in deaths among the newborn and the elderly was accompanied by a higher suicide rate and growing incidence of mental illness. The blockade had ruined Armenia’s industry…

This HRW report does not refer to this “blockade” as “collective punishment,” and indeed recommends that “all but humanitarian aid should be withheld from Armenia because of Armenia’s financing of the war.” It is not clear why HRW promotes a policy of limiting non-essential supplies for Armenia, but when Israel responds to daily rocket attacks on civilian population centers  – over 8000 since 2000 –  HRW condemns a similar policy as constituting “collective punishment.”

Similarly, in a 1999 press release on Chechnya, HRW described the humanitarian situation there as “rapidly deteriorating, with no functioning hospitals, electricity, running water, gas, or heating since the beginning of November, and dwindling food supplies” (HRW News Release Dec. 8, 1999).  This was clearly a more desperate situation than was Gaza in 2007, where humanitarian aid entered daily (Bell and Weiner 2008; see also Benn June 16, 2007).101   Yet HRW did not refer to Chechnya as suffering from “collective punishment.” 

In 2007 the term “collective punishment” was used by HRW in 13 items not referring to Israel. These cases generally provide evidence of punitive intent against third parties in accordance with the actual legal definition:

For example, in his 2007 testimony to a U.S. House Committee on Foreign Affairs, Subcommittee on Africa and Global Health, Sam Zarifi102  stated (HRW Report Oct. 2, 2007),

in the Ogaden, we have documented massive crimes by the Ethiopian army, including… villages burned to the ground as part of a campaign of collective punishment. [emphasis added]

Another example is found in an August 2007 article in The Guardian about Ethiopia, and authored by HRW’s London Director, Tom Porteous. There he asserts that

dozens of civilians have been killed in what appears to be a deliberate effort to mete out collective punishment against a civilian population suspected of sympathizing with the rebels. [emphasis added]

These results demonstrate that HRW’s application of the label “collective punishment” is inconsistent and arbitrary, singling out Israel and holding it to a different standard than other nations in its quest for security.   

Human shields
As shown repeatedly in the case studies on the Lebanon War and Gaza, HRW also uses double standards regarding human shielding.  The obligation to maintain the distinction between combatants and civilians is a cornerstone of International Humanitarian Law (IHL).  Article 28 of the Fourth Geneva Convention mandates that “[t]he presence of a protected person [e.g., civilians] may not be used to render certain points or areas immune from military operations.”103   UN Glossary of Peacekeeping Terms interprets the prohibition as follows: 

human shield [any person who, under the laws of war is considered a non-combattant [sic] and as such protected from deliberate attack (civilians, POWs, etc.) but who is used by one side as a hostage to deter the other side from striking a particular military target and risking killing the hostages; the side using “human shields” gambles on the other side’s reluctance to violate the laws of war and on its fear of the moral and political opprobrium usually attached to such violations; the use of human shields can take the form of a) placing civilians or prisoners in or near legitimate military targets (bases, bunkers, weapons factories, etc.) or b) placing artillery batteries and other offensive weapons in the midst of the civilian population, particularly such buildings as hospitals, schools, churches, etc., or residential neighborhoods, or c) for non-uniformed armed groups, firing at their adversary from among a crowd of civilians].

The violation of this obligation is serious not only because it flaunts the principle of distinction, but it exposes civilians to harm, since under IHL military objectives may be attacked, even if civilians are present, so long as such attacks are in accordance with the principle of proportionality.104  Those who engage in the practice of human shielding are guilty of war crimes and bear responsibility for any civilian deaths that result.

Despite the central and clear prohibition against the use of human shields, HRW’s emphasis on this issue varies greatly across conflict areas.  When reporting on Sri Lanka, Somalia, Chechnya, and elsewhere, HRW’s interpretation of human shielding law is generally consistent with the legal principles.  However in its statements on the Arab-Israeli conflict, HRW invariably applies an artificially narrow definition that results in a much wider possibility of alleged Israeli violations.  As detailed in the examples below, HRW has even gone so far as to reverse its position on human shields when faced with criticism from the extreme Left for challenging Palestinians for engaging in the practice.105 

The double standards in effect are highlighted by comparing specific examples. In an April 2009 report on Sri Lanka, HRW condemned the LTTE (Tamil Tigers) for “deploy[ing] their forces close to civilians, thus using them as ‘human shields’” (HRW Report Mar. 4, 2009).  In a report issued on Somalia in Dec. 2008 HRW condemned “[t]he practice by insurgent forces of firing mortars or otherwise launching attacks from heavily populated neighborhoods” and that such activity “can constitute ‘human shielding,’ which is a war crime” (HRW Report Dec. 8, 2008). And in a 1999 report from Chechnya, HRW claimed that situating “a key command post within or adjacent to [a] market” by Chechen fighters “would be a serious violation, as the Chechen forces are obliged to respect international law prohibiting use of the civilian population to shield military objects” (HRW News Release Nov. 2, 1999).

In contrast, HRW’s May 2002 report on Operation Defensive Shield in Jenin (HRW Report May 2, 2002) claimed to have found “no evidence that Palestinian gunmen forced Palestinian civilians to serve as human shields during the attack.”  This is despite HRW’s statement (HRW Report May 2, 2002) that
Palestinian gunmen endangered Palestinian civilians...[ by] using [the camp] …for…launching attacks, …planting improvised explosive devices within the camp and intermingling with the civilian population during armed conflict, and, in some cases, to avoid apprehension by Israeli forces.

HRW’s recommendations did not call for the end to these practices.  Instead, the organization discussed alleged Israeli violations at length, including human shielding, and made recommendations to end the use of the “neighbor procedure” (Greenberg 2005).106   The NGO continues to cite the Jenin investigation for its claims regarding Israeli use of human shields, while ignoring clear evidence of blatant Palestinian abuses (for examples see HRW News Release Jan. 7, 2009 and HRW News Release Jan. 27, 2009).

Similarly, HRW’s Fatal Strikes report during the 2006 Lebanon War claimed to have found “no cases in which Hezbollah deliberately used civilians as shields to protect them from retaliatory IDF attack.”  HRW made this statement despite the extensive evidence that Hezbollah was deeply embedded in Southern Lebanese villages, and instead relied on local eyewitnesses who said otherwise (NGO Monitor Report Dec. 28, 2006). In an October 2006 op-ed after the war, however, Sarah Leah Whitson, contradicted HRW’s earlier statements claiming that, “Human Rights Watch’s research found that on a number of occasions Hezbollah unjustifiably endangered Lebanese civilians by storing weapons in civilian homes, firing rockets from populated areas, and allowing its fighters to operate from civilian homes” (Whitson 2006). Yet just as in HRW’s Jenin report four years earlier, Whitson declined to label this activity “human shielding.” 

In November 2006 HRW issued a rare condemnation of Palestinian use of human shields in Gaza.  In a press release describing Muhammadwail Barud’s107  call for civilians to surround his home following an IDF warning that it would be attacked (HRW News Release Nov. 22, 2006), HRW quoted a PRC commander urging “our people to rush into threatened houses and make human shields.” Sarah Leah Whitson said “[w]hether or not the home is a legitimate military target, knowingly asking civilians to stand in harm’s way is unlawful.”  However, by December 15, 2006, in response to pressure from commentators and blogs on the extreme Left (Finkelstein 2006; Cook 2006), HRW selected and reported a new version of the incident in order to justify reversing its position.  The new statement defined the potential Israeli strike as a “punitive measure,” not subject to the “law regulating the conduct of hostilities during armed conflict,” and on the basis of ostensibly new eyewitness reports, concluded that the home was not being used “for military purposes.”  Ignoring contrary evidence presented in its prior release, HRW characterized the act as one of “nonviolent resistance” and apologized for doing “more to cloud the issues than clarify them” (HRW News Release Dec. 15, 2006).108  

In the 2008-9 Gaza conflict HRW again highlighted alleged Israeli violations and repeatedly failed to condemn Hamas for large-scale human shielding, despite assurances by HRW officials that they planned to “investigate” the practice (Katz 2009).109   HRW had little access to Gaza during the conflict, yet issued numerous statements accusing Israel of “war crimes,” based on media reports, unreliable Palestinian claims, and the assessments of questionable “military experts” positioned on ridges surrounding Gaza.  HRW chose not to report detailed information on Hamas’ “reckless and cynical use” (UN News Centre Jan. 27, 2009) of civilian infrastructure as a primary fighting tactic (as stated by UN official John Holmes) – including firing from populated areas, placing women and children on the roofs of targeted buildings, storing weapons in schools and mosques, and hiding in bunkers beneath hospitals.  According to military analyst Anthony Cordesman, Israel’s actions must “be placed in the broader context of how Hamas chose to deploy and use the equivalent of human shields. Israel is correct in claiming that Hamas must share responsibility for what happened” (Cordesman 2009). HRW failed to take this context into account.

In its March 2009 report, Rain of Fire, HRW alleged that the IDF used white phosphorous unlawfully in order to deliberately target civilians. White phosphorous is a lawful weapon employed to obscure troop movements. HRW repeatedly argued that Hamas fighters were not present in the incidents it reviewed even though Palestinian media and IDF reports refuted these claims.  In one example involving an alleged white phosphorous attack on an elementary school in the Beit Lahiya neighborhood, HRW claimed “it found no indication that IDF units or Palestinian armed groups were operating in the area at the time.” Yet, the Palestinian Ma’an News Agency reported heavy fighting near the school and an IDF investigation concluded that its ground forces, including tanks, were operating in the Beit Lahiya area and had used smoke munitions to protect against rocket-launching units and terrorist infrastructure.

Similarly, in the August 2009 publication on the Gaza War, White Flag Deaths, HRW emphasizes that “[a]ll available evidence indicates that …no fighting was taking place there at the time, and no Palestinian forces were hiding among the civilians or using them as human shields.” Israeli soldiers, however, are again accused of “human shielding.”   HRW ignored substantial evidence of Hamas’ exploitation of schools, mosques, hospitals, and cultural centers. Moreover, a video showing a Palestinian fighter using civilians waving a white flag as human shields,110  is omitted.  In contrast, in an interview with the Jerusalem Post, HRW’s researcher in Israel and the Palestinian Authority, Bill Van Esveld, belatedly acknowledged the use by Hamas of human shields (Izenberg, et.al. 2009).

HRW’s only substantive report on Hamas war crimes during the Gaza conflict, Rockets from Gaza (Aug. 6, 2009), failed to condemn the terror organization for its extensive use of human shields.  According to HRW’s overly narrow definition of the concept – in contrast to that of international law – Hamas “did not…force civilians to remain in areas in close proximity to rocket launching sites.” Instead the authors absurdly blame Israel for Hamas’ rocket fire from populated areas.  Under HRW’s version, Hamas “redeployed from more open and outlying regions – many of which were…controlled by Israeli ground forces…into densely populated urban areas.”  In other words, Israel’s military operations targeting rocket fire is blamed for Hamas’ violations of the laws of war. And the numerous rocket attacks from these same urban areas – long before the December 2008-January 2009 offensive – are not mentioned.

Abducted soldiers 
Nineteen year old Gilad Shalit was kidnapped in a June 2006 cross-border raid from Gaza. Since then he has been held incommunicado, with no access to the Red Cross, and in clear violation of international law. In the three years since Shalit’s kidnapping (as of June 2009), HRW dedicated only one press statement (July 2007) specifically calling for his release and for his right to unfettered Red Cross access. This same statement called for the release of the two soldiers captured at the beginning of the Second Lebanon War, Ehud Goldwasser and Eldad Regev whose bodies were returned to Israel on July 15, 2008 in a prisoner exchange. In their case as well, Red Cross representatives were not allowed access to the abducted soldiers in the two years following their kidnapping in July 2006. 

Throughout 2007 HRW mentioned one or more of the kidnapped Israeli soldiers in a total of only six publications. Of these, only two publications refer to them by name. The other references are simply in passing (HRW News Release July 4, 2007; HRW News Release Jan. 13 2009).111   When HRW was publicly criticized for making “no more than a token demand for Shalit’s release and then only in the context of wider issues” (NGO Monitor Press Release Mar. 15, 2009), Joe Stork responded (Lefkovits 2009):

We have commented on this case on a number of occasions...The idea that we have commented on everything but this is ridiculous.

This dismissive comment illustrates HRW’s moral failure in dealing with Israeli victims of human rights violations, and the absence of universality in HRW’s application of human rights standards.

On June 25, 2009, the third anniversary of Shalit’s kidnapping, HRW issued a belated press release which called his continued imprisonment “cruel and inhumane” (HRW News Release June 25, 2009).  Yet even this statement was constrained by HRW’s ideological agenda, reflected in effort made to draw a parallel between Shalit’s kidnapping and treatment, and the detention of Palestinians in Israeli jails, and to include another condemnation of Israel’s blockade of Gaza as collective punishment.
 
In sharp contrast, between April 2007 and June 2009 HRW issued four statements or public letters calling for Israel to allow Shawan Jabarin, general director of NGO Al-Haq, to travel abroad.  Jabarin has been denied travel visas by both Israel and Jordan because of his role, according to the Israeli Supreme Court, as a “senior activist” in the PFLP terrorist organization, a qualification HRW declines to mention in its publications.112  The vast differences in the resources that HRW devoted to these two instances, and their implications in terms of this organization’s double standards and ideological agenda, speak for themselves.