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NGO Fact-Finding for IHL Reinforcement: In Search of a New Model

Abstract

Human Rights Watch (HRW), Amnesty International (Amnesty), and other like-minded organisations have become major actors in the world of international humanitarian law (IHL). Every year they issue hundreds of publications purporting to document violations and to promote IHL enforcement. These publications are ubiquitously cited in the media, and used as source material for governmental and United Nations inquiries, quasi-judicial bodies, the International Criminal Court, academic studies, and other frameworks. Yet, despite the increase in the number, role and influence of non-governmental organisations (NGOs) working on IHL enforcement, conflicts and civilian deaths show no signs of abating. Among the factors that reduce NGO impact in these areas is the demonstrated weakness of these organisations in the realm of fact-finding, and the tension between these activities and emphasis on political advocacy. This article will thus analyse both objective and subjective aspects of NGO fact-finding during armed conflict, including mandates and methodology, selectivity, the application of legal standards, military expertise and sourcing. These issues will be examined through case studies of Amnesty and HRW publications on the conflicts in Yemen, Ukraine and the 2014 Gaza War. The article will conclude with recommendations for NGOs and the actors with which they interact.

[Excerpts]

The number of human rights non-governmental organisations (NGOs) globally has increased from only a few dozen in the 1970s to several thousand today.1 Initially, these NGOs focused on monitoring and reporting on state compliance with international human rights norms. For example, Human Rights Watch (HRW), one of the most influential of these groups, was founded ‘to support the citizens groups formed throughout the Soviet bloc to monitor government compliance with the 1975 Helsinki Accords’.2 Amnesty International (Amnesty) was founded in 1961 to campaign for prisoners of conscience and to protect the rights of freedom of opinion and religion from state interference.3 Amnesty and HRW were selected for this study because they are global in scope and are the largest and most influential NGOs working on issues relating to international humanitarian law (IHL).4

The primary form of Amnesty’s advocacy was through postcards sent by activists to government officials in the appropriate states.5 During the 1980s, however, particularly towards the end of the Cold War, HRW, Amnesty and many other NGOs that were promoting human rights agendas shifted their focus to armed conflict and IHL.6 Emphasis on conflict and IHL compliance enabled the organisation to draw attention to the human rights agenda of the United States (US) government and to highlight allegations of complicity in abuses by allied governments during the Cold War.7 Amnesty and other human rights NGOs then broadened their mandates, also adopting IHL as a major focus of their work and, like HRW, positioned themselves as military and IHL experts.8

Footnotes

  1. UN Department of Economic and Social Affairs, NGO Branch, ‘Consultative Status with ECOSOC and Other
    Accreditations’, http://esango.un.org/civilsociety/displayConsultativeStatusSearch.do?method=search&sessionCheck=false.
  2. Human Rights Watch, ‘Our History’, https://www.hrw.org/our-history. The third section of the Helsinki Accords emphasised the protection and promotion of rights, including freedom of movement, religion, thought and speech: Organization for Security and Co-operation in Europe (OSCE), The Final Act of the Conference on Security and Cooperation in Europe: Helsinki Accords, Declaration on Human Rights, 1 August 1975, 14 ILM 1292, http://www.osce.org/helsinki-final-act?download=true.
  3. Peter Benenson, ‘The Forgotten Prisoners’, The Observer, 28 May 1961; Amnesty International, ‘Our Story’, http://amnesty.org/en/who-we-are/history.
  4. For HRW, ‘publications’ refers to all items posted on its website under the ‘Ukraine’, ‘Yemen’ and ‘Israel/Palestine’ country sections dated between June 2014 and September 2016, including ‘reports’, ‘news releases’, ‘commentary’, ‘Q&A’, ‘Dispatches’, etc. For Amnesty, all items posted on the NGO’s website catalogued under the sections headed ‘Ukraine’, ‘Yemen’ and ‘Israel and Occupied Palestinian Territories’ and dated between June 2014 and September 2016 were surveyed. A list of the publications is available on file with the authors.
  5. Patricia Sullivan, ‘Peter Benenson Dies; English Lawyer Founded Amnesty International’, The Washington Post,
    27 February 2005, http://www.washingtonpost.com/wp-dyn/articles/A56659-2005Feb26.html.
  6. Aryeh Neier, The International Human Rights Movement: A History (Princeton University Press 2012) 206–11. Had HRW limited itself to reporting solely on violations of international human rights law, it would not have had a legal foundation upon which to comment on violations committed by US-proxy paramilitaries and guerrilla groups. See also Diane Orentlicher, ‘Bearing Witness: The Art and Science of Human Rights Fact-Finding’ (1990) 3 Harvard Human Rights Journal 83, 99.
  7. Neier, ibid; Orentlicher, ibid. HRW’s Executive Director, Kenneth Roth, also alluded to the NGO’s choice of prioritising the monitoring of armed conflict in an interview in September 2013 on Russia Today. Discussing the possibility of US military strikes in retaliation for Assad’s use of chemical weapons on Syrian civilians, he commented that he did not think dictatorships were the ‘worst possible scenario’. Rather, he stated that a situation where differing factions are controlling a country and ‘mass killing’ is occurring is the worst case. Moreover, he noted that ‘no one was calling for military intervention over Assad when he was ruling over a unified country … He was a ruthless dictator but he wasn’t killing 5,000 civilians a month’. In other words, mass scale and systematic abuses of human rights of millions of people by a dictator or authoritarian regime (which may also include mass killing over a long period of time) is of lesser priority to HRW than deaths resulting from armed conflict or civil war: RT, ‘Bombing for Peace: Syria Strike Better than Nothing? (ft. Human Rights Watch CEO)’, YouTube, 8 September 2013, beginning at 21:00, https://www.youtube.com/watch?v=ooRICVYWHyQ&feature=player_embedded.
  8. See, eg, HRW, ‘About Our Research’, https://www.hrw.org/about-our-research (‘All our researchers come to Human Rights Watch with a powerful commitment to human rights and an existing expertise’); HRW, ‘People’, https://www.hrw.org/about/people (referring to its staff members as ‘experts’); HRW, ‘Cluster Munitions and International Humanitarian Law: The Need for Better Compliance and Stronger Rules’, 5–16 July 2004, https://www.hrw.org/legacy/backgrounder/arms/clusters0704/clusters0704.pdf; Human Rights Watch, ‘Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia’, 23 January 2009, https://www.hrw.org/report/2009/01/23/flames/humanitarian-law-violations-and-civilian-victims- conflict-over-south (referring to HRW armaments experts); Amnesty, ‘What We Do’, https://www.amnesty.org/en/what-we-do/ (referring to researchers as ‘experts’); Amnesty, ‘Syria: Expert Analysis Shows US-Led Coalition Use of White Phosphorus May Amount to War Crime’, 16 June 2017, https://www.amnesty.org/en/latest/news/2017/06/syria-expert-analysis-shows-usled-coalition-use-of-white-phosphorus-may-amount-to-warcrime.

About the Authors

Professor Gerald M. Steinberg

Professor Gerald M. Steinberg

Professor Gerald Steinberg is founder and president of NGO Monitor and professor of Political Studies at Bar Ilan University. He is the founder of the Program on Conflict Management and Negotiation at Bar Ilan University. His research focuses on the changing nature of power in international relations, as reflected in Middle East Diplomacy and Security, The Politics of Human Rights Non-Governmental Organizations (NGOs), and Israeli Politics and Arms Control.

Anne Herzberg

Anne Herzberg

Anne Herzberg is the Legal Advisor of NGO Monitor. She is a graduate of Oberlin College and Columbia University Law School. Prior to joining NGO Monitor, she worked as an attorney in New York. Her areas of research include business and human rights, international human rights law, the laws of armed conflict, universal jurisdiction, international fact finding, NGOs, and the UN.