Distortion of International Humanitarian Law
Human Rights Watch states its goal to be one of promoting adherence to existing international law and human rights standards, but also boasts of its “tenaciou[s]” work “to lay the legal and moral groundwork for deep-rooted change.” This effort is overt in HRW’s campaigns to ban antipersonnel (land) mines and cluster munitions and its strong support for the International Criminal Court (ICC). However, other reports and campaigns blur the line between interpretation of existing laws and advocacy for new ones, and present subjective prosecutorial arguments rather than objective reporting. Examples include HRW’s report (April 2008) of the “Reuters cameraman” incident and its statements (August 2006) following the Qana bombing in the Second Lebanon War. HRW’s analysis of Israel’s legal obligations toward Gaza is a salient example of the practice of re-interpreting or advocating for international law to match a political viewpoint.
In 2008,119 HRW published 18 condemnations of Israel’s response to sustained and deliberate attacks launched from Gaza and aimed at civilians. These statements distort international legal terminology, repeat incomplete or false analyses of international law, and minimize or omit Hamas’ attacks on Israeli border crossings where humanitarian aid is delivered, as well as the diversion of this aid by Hamas. Far from carefully written, accurate and well-sourced legal analyses, these publications reflect an overriding political agenda. The following detailed examination of the claims reveals their lack of foundation in international law (NGO Monitor Report June 16, 2008). 120
Claim: Israel’s restrictions on the flow of goods and services into Gaza “constitute[s] collective punishment against the civilian population, a serious violation of international humanitarian law.”
Analysis: HRW continues to apply the label of “collective punishment” selectively and incorrectly to Israel. Restriction on the flow of goods in a war environment does not constitute “collective punishment” under international law. “Collective punishment” refers to the imposition of criminal penalties (Bell Jan. 28, 2008) and not to the legal act of retorsion (e.g., sanctions, blockades). Furthermore, pursuant to Article 23 of the Geneva Convention, which sets standards for the provision of limited humanitarian aid, Israel has no obligation (Bell Feb. 28, 2008) to provide any goods, even minimal humanitarian supplies, if it is “satisfied” that such goods will be diverted122 or supply of such goods will aid Hamas in its war effort. Israel is also bound by several international treaties restricting the financing and support of terrorism. Provision of goods that ultimately aid Hamas in its terror campaign would place Israel in breach of these international legal obligations. As credible accounts (Israeli Ministry of Foreign Affairs Apr. 11, 2008) have reported, Hamas has indeed diverted supplies from Gaza’s civilian population. This is consistently omitted from HRW reports.
Even though Israel is under no legal obligation, and despite Hamas’ diversion of aid, as well as attacks on the Israeli border crossings (Israeli Ministry of Foreign Affairs June 4, 2008), that include the April 9 attack on the Nahal Oz fuel depot and the May 22 truck bomb attack at the Erez crossing, Israel continued to provide hundreds of tons123 of humanitarian supplies to Gaza on a weekly basis. This is above and beyond any obligation under international law.
Claim: HRW argues that the deliberate targeting of civilians by Hamas “[does] not permit unlawful actions – in this case collective punishment – by the other.”
Analysis: This claim attempts to portray Israel’s lawful right to exercise self-defense against attacks on its civilians as a violation of international law. As shown above, Israel is not engaging in “collective punishment,” nor is Israel’s actions in any way “unlawful.” Indeed, under international law, the only legitimate uses (Burroughs and Deller) of force are for purposes of self-defense or pursuant to Security Council authorization under Chapter VII of the UN Charter. Article 51 of the UN Charter, states: “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Israel, therefore, has the unequivocal right to engage in self-defense to prevent attacks against its civilian population.
Claim: Israel maintains “continued effective occupation of the Gaza Strip.”
Analysis: This is simply an ideological maneuver. According to HRW, Gaza is still occupied because Israel “still maintains effective control over the territory via its control of Gaza’s land borders, airspace, [and] territorial waters.”124 This argument is false both as a matter of fact and as a matter of law, and largely parrots a “legal” opinion circulated by the PLO prior to Israel’s disengagement in August 2005.125 Under both The Hague126 and Geneva Conventions,127 as well as judicial interpretation of these provisions,128 the standard of “effective control” refers solely to the exercise by a hostile army of governmental authority (Casey and Rivkin 2008) – not control of borders. Thus in no way can Israel be said to exercise governmental authority in Gaza. Indeed, as Egypt controls the southern border of Gaza, and based upon its occupation of Gaza from 1948-1967, under HRW’s reasoning Egypt would rightfully also be considered to be occupying Gaza. While HRW frequently quotes the ICRC on matters of international humanitarian law, they have declined to address the implications of the ICRC’s categorization of Gaza as “autonomous [not occupied] territory.”129
Claim: Gaza continues to be occupied because Israel “maintains effective control over … tax collection, and population registry.”
Analysis: HRW provides no source to support this allegation.130 Beginning in 1994, the Palestinian Authority became responsible for the establishment and collection of all taxes within Gaza (Israeli Ministry of Foreign Affairs Aug. 29, 1994), and this is now controlled by Hamas following its violent takeover in June 2007. Israel has no power to set or collect such taxes. Pursuant to international agreement, Israel collects custom duties for cross-border transactions on behalf of the PA, but only a highly distorted interpretation would conclude that Israel is “controlling” tax collection in Gaza. Moreover, Israel has no authority over what population registry the PA and Hamas choose to use (Israeli Ministry of Foreign Affairs May 4, 1994). It was the decision of the PA and Hamas to continue use of the population registry system that was established by Israel following 1967.
Claim: Gaza continues to be “occupied” because “Israeli military forces can and
regularly do re-enter Gaza at will.”
Analysis: As noted, territory is considered “occupied” under international law solely if the hostile army exercises the functions of “governmental authority.” The test is not whether an army has the potential to enter a territory to conduct military operations. Under this reasoning, Mexico and Canada would be considered “occupied” by the U.S., since U.S. forces could enter these countries “at will.”
Such inaccurate and reckless allegations not only diminish HRW’s credibility, but also devalue the lexicon of human rights while allowing many abusers to escape criticism. Such claims are reinforced by Palestinian NGO campaigns that use similar language, and in turn legitimize local NGO abuse of human rights norms.