Precision-guided or Indiscriminate? NGO Reporting on Compliance with the Laws of Armed Conflict

Table of Contents

Introduction

Human Rights NGOs And The Laws Of Armed Conflict

AI And HRW’s Claims Of Israeli LOAC Violations: The Framework

  • NGO “Outsourcing”
    NGO Methodology For Establishing Claims Of Israeli LOAC Violations
    Applicable Law In The Israeli Case

Case 1: White Phosphorus

  • Feasible Precautions In Attack
    Prohibition On Indiscriminate Attacks
    Proportionality

Case 2: Unmanned Aerial Vehicles (UAVs)

  • Feasible Steps To Verify Nature Of Objective
    Legitimate Military Objectives And Collateral Damage

Conclusion

Executive Summary

Executive summary [PDF]

International human rights NGOs play an increasingly influential role in shaping the policies of states and international institutions. Directly through consultations and lobbying and indirectly through public advocacy and media campaigns, NGOs publicize their analyses and promote their policy recommendations. One area in which NGOs such as Amnesty International (AI) and Human Rights Watch (HRW) have been particularly active is in evaluating compliance with the Laws of Armed Conflict (LOAC) by parties to hostilities.

While scholars have dedicated attention to questions of NGO formation, activity, and impact on the international system (see Keck and Sikkink, 1998; Welch, 2001; Mathews, 1997), there has been relatively little critical evaluation of the factual and legal claims in NGO reports. It appears that the positive values associated with the promotion of human rights tend to engender positive and uncritical treatment of the NGOs’ substantive claims. This monograph aims to take a first step toward adding a critical perspective.

The case selected for analysis is NGO reporting regarding the 2008-2009 conflict in Gaza and Southern Israel. Few other conflicts have generated as much NGO activity or public interest relating to LOAC. The study focuses on the information disseminated by two of the largest and most influential human rights NGOs, Amnesty International and Human Rights Watch. Their claims and conclusions are considered in light of the academic literature on LOAC, military sources, and state declarations and practice.

It is shown that the NGOs’ [1] descriptions of the means and methods of warfare contain numerous unwarranted assertions and unsubstantiated claims. In other cases, the NGOs present unrealistic depictions of the nature of modern combat, leading them to problematic evaluations of Israeli actions. It appears that these result at least in part from a lack of expertise in relevant areas.

From the legal perspective, it will be argued that the NGOs’ presentation of several key LOAC principles is inaccurate or incomplete. In other instances, AI and HRW present controversial interpretations of LOAC treaties as widely accepted customary law. This suggests that the NGOs may be engaged in “standard setting” [2] rather than in objective evaluations.

Outline

Following the introduction, Section 2 discusses the growing role of NGOs in shaping the policies of more powerful actors such as states and international institutions. Section 3 presents the framework for an analysis of AI and HRW’s claims regarding Israel’s LOAC compliance.

Sections 4 and 5 present two case studies of NGO reporting. Each focuses on a topic that drew significant attention during and following the Gaza fighting: Israel’s use of white phosphorus (WP) munitions and its use of unmanned aerial vehicles (UAVs). In each case, LOAC concepts and standards necessary for evaluating Israel’s actions are explored, and the NGOs’ claims and arguments are analyzed.

Section 4 examines the primary NGO assertions regarding Israel’s use of WP: That Israel a) violated the LOAC requirement to take all feasible precautions to minimize civilian harm; b) violated the prohibition on indiscriminate attacks; and c) violated the proportionality requirement.

Among the findings are that:

  • LOAC, as reflected in state declarations and practice, recognizes the right of a commander to consider military needs, particularly force protection, when evaluating what actions and precautions are feasible in a given situation.
  • HRW’s claim that Israel could feasibly have used a different type of smoke obscurant to the same effect as WP is contradicted on several counts by military sources and weapons experts.
  • AI and HRW’s arguments regarding the feasibility of using other means and methods to deliver WP are unsubstantiated and based upon information unavailable to the NGOs. Suggested alternatives may, in fact, have posed a greater danger to civilians.
  • Contrary to the claim that Israel’s use of WP was indiscriminate and hence unlawful per se, its use was “directed at a specific military objective” and therefore lawful under LOAC.

Section 5 examines the primary NGO arguments regarding Israel’s use of UAVs: That Israel a) failed to take feasible steps to verify the status and nature of intended targets; and b) failed to distinguish between military and civilian persons and objects, or intentionally targeted civilians.

Among the findings are that:

  • The evidence AI and HRW present to establish their claims regarding the weapons platforms and munitions allegedly used is rendered questionable by military and defense industry sources. In a number of instances, the witness testimony relied upon heavily by the NGOs is contradicted by widely published media reports or the NGOs themselves.
  • AI and HRW present an unrealistic depiction of the factors influencing targeting decisions on the modern battlefield. They fall prey to the “allure of precision” that leads “those beyond the battlefield [to] impose unreasonable demands on the military or postulate norms that go beyond treaty or custom” (Schmitt, 2004, p. 466).
  • Israeli actions are judged based on hindsight, in contrast to LOAC standards as affirmed by the declarations of 13 countries when ratifying Additional Protocol I to the Geneva Conventions.
  • The NGOs misrepresent LOAC definitions of legitimate military objectives. On the basis of this misrepresentation, they presume the absence of legitimate military objectives in the vicinity of a strike.
  • Once presuming the absence of legitimate military objectives, the NGOs assume that civilians injured in a strike were deliberately targeted. This allows them to ignore LOAC’s recognition of the possibility and lawfulness of proportional collateral damage in attacks on military objectives.

The findings of this study indicate that at least in their reporting on the Israeli-Palestinian conflict, AI and HRW’s reports contain many factual inaccuracies and problematic presentations of international law. It is therefore suggested that AI and HRW, as well as other NGOs dealing with similar issues, carefully evaluate their areas of competency, and ensure that factual and legal assertions are made with the proper degree of expertise. It is further suggested that the NGOs take steps to maintain standards of objectivity and ensure that ideological predilections do not color their analyses. When claiming to evaluate the lawfulness of a party’s actions, the NGOs must not conflate lex lata (the law as it exists) with their preferred lex ferenda (what the law should be).

Policy-makers, diplomats, and journalists should more carefully scrutinize NGO-generated information. Subjecting NGO reports and statements to careful analysis will help ensure that these documents are produced at the highest standards. This would enable NGOs such as AI and HRW to most effectively fulfill their mission of promoting and protecting human rights.

References

Keck, M. E., & Sikkink, K. (1998). Activists beyond borders: Advocacy networks in international politics. Ithaca, NY: Cornell University Press.

Mathews, J. (1997). Power shift. Foreign Affairs, 76(1), 50-66.

Schmitt, M. N. (2005). Precision attack and international humanitarian law. International Review of the Red Cross, 859, 445-466.

Welch Jr., C. E. (2001). Introduction. In C.E. Welch Jr.(Ed.), NGOs and Human Rights: Promise and Performance (pp. 1-24). Philadelphia, PA: University of Pennsylvania Press.

Notes

[1] Unless otherwise indicated, all references to “the NGOs” in this monograph refer to AI and HRW.
[2] C. E. Welch (2001) uses the term “standard setting” to describe NGO involvement in the creation of human rights instruments. Here the term is expanded to include efforts to determine how those instruments should be interpreted.

About the Authors

Asher Fredman

Asher Fredman

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.