The Gaza War, December 2008 – January 2009
Leading the NGO campaign to delegitimize defensive actions, calls for “lawfare” and publication of inflated casualty figures
HRW’s “targeted advocacy” directed at Israel and based on a series of ostensibly “rigorous and objective investigations” was particularly pronounced in relation to the Gaza conflict. This advocacy began months before the renewal of the military operation on December 27, 2008. Eighteen out of the 27 HRW statements published in 2008 that addressed Israel focused on issues related to Gaza, including numerous accusations of “collective punishment,” “continued occupation,” and contribution to a “humanitarian crisis.”83
In a 27-page report entitled Deprived and Endangered: Humanitarian Crisis in the Gaza Strip (HRW News Release Jan. 13, 2009), HRW used the term “collective punishment” and made numerous demands of Israel, while failing to call for an end to the firing of rockets at Israeli civilians or to discuss the use of human shields by Hamas. Many other HRW statements focused solely on Israel, and failed to condemn the violations of international humanitarian law by Hamas.84 Ken Roth repeated the accusations in a public letter to Secretary-General Ban Ki-moon (Roth Jan. 12, 2009),85 and HRW’s website featured emotive images of Palestinian victims.
In an op-ed published in Forbes (Roth Jan. 22, 2009) – a similar version was published in the Jerusalem Post (Roth Jan 25, 2009) – HRW’s executive director accused Israel of “a determination to make Gazans suffer for the presence of Hamas – a prohibited purpose for using military force.” Roth also dismissed claims that Hamas operated from civilian areas as “ritual IDF pronouncements” that should be taken “with a grain of salt.” The facts included in these “ritual pronouncements” were clearly displayed in video footage86 and confirmed by journalists and by UN and ICRC officials. Under-Secretary-General for Humanitarian Affairs John Holmes declared “The reckless and cynical use of civilian installations by Hamas, and the indiscriminate firing of rockets against civilian populations, are clear violations of international humanitarian law” (UN News Centre Jan. 27, 2009).
HRW publications continued the practice of citing unnamed “witnesses” or “researchers,” whose credibility cannot be established and whose reports cannot be independently verified. As with Qana in the Lebanon war, HRW reported rumors of civilian deaths as fact. Following an exchange of fire close to the al-Fakhura UN school on January 6, 2009, HRW relied on two eyewitnesses who said that there were no “Hamas militants in the area at the time.” HRW also promoted Palestinian claims that “between 30 and 40 people” had been killed, and that this “shocking loss of civilian life…appears to be the single-most deadly incident for civilians in Gaza since Israel’s current offensive began” (HRW News Release Jan. 7, 2009), calling for a “high-level emergency session” of the UN Security Council to investigate. As later confirmed by UN officials, no one was killed in the school. Of the 12 people reportedly killed nearby, nine were affiliated with Hamas, and three were civilians (Katz Feb. 19, 2009; see also Rabinovich Feb. 6, 2009).
HRW’s numerous publications condemning Israel were highly influential in the campaign that led to the creation of the Goldstone inquiry under the framework of the UN Human Rights Council.87 Goldstone was himself a member of HRW’s board and he resigned after the appointment to head the inquiry. The creation of this commission of inquiry was a major success for HRW’s advocacy campaign on Gaza. At the dinner held in Saudi Arabia in May 2009, Arab News (Salti 2009) reported that “HRW presented a documentary and spoke on the report they compiled on Israel violating human rights and international law during its war on Gaza earlier this year.” This report quoted Whitson, who boasted that HRW had been instrumental in this process, declaring “Human Rights Watch provided the international community with evidence of Israel using white phosphorus and launching systematic destructive attacks on civilian targets….”
HRW’s publications and advocacy campaigns continued for months after the fighting ended, in large part to influence the content of the inquiry’s report. A March 16, 2009 “Letter to EU Foreign Ministers to Address Violations between Israel and Hamas” (Leicht 2009) called for a “comprehensive and impartial international inquiry into allegations of serious violations of international law,” alleging that Israel and Hamas had a “poor record of conducting genuine and impartial investigations, and of holding members of their own forces accountable for war crimes.” Assuming the posture of a research organization, this letter declared that:
…our researchers were able to enter Gaza for several weeks when Egypt opened the Rafah crossing. During that period, Human Rights Watch conducted extensive field investigations into the conduct of the conflict by both parties. We found that both sides showed a serious disregard for the safety of civilians and repeatedly acted in violation of the laws of war.
The theme that Israel was incapable of investigating its own behavior, and that “independent” inquiries were needed was repeated many times by HRW. When the IDF published its investigation of the Gaza conflict in April, HRW issued a blanket statement rejecting the conclusion without addressing details (Izenberg 2009):
The IDF statement is an insult to the civilians in Gaza who needlessly died and an embarrassment to IDF officers who take military justice seriously. The IDF leadership is apparently not interested, willing or able to monitor itself. …We consider the IDF investigations announced today a cover-up for serious violations of international law. Hamas also seriously violated the laws of war and HRW will continue to document violations on both sides.
HRW issued five “research reports” following the Gaza conflict, which exhibit an absence of professional methodology, and reflect the effort to provide “evidence” to fit a prior political agenda. Three reports condemned Israel, and two were directed at Hamas.88 And HRW officials have expressed their intention to issue a sixth report directed at Israel and also addressing a relatively minor aspect of the war. Following HRW’s standard pattern, the conclusions in each report are defined, and the evidence is presented in order to fit these claims.
The first such report, entitled Rain of Fire: Israel’s Unlawful Use of White Phosphorous in Gaza, was published on March 25, 2009 and written by Marc Garlasco, Fred Abrahams, Bill van Esveld, Fares Akram, and Darryl Li. Charges related to white phosphorus were a central vehicle for NGO anti-Israel campaigns during the Gaza War (NGO Monitor Report Feb. 12, 2009; NGO Monitor Report Jan. 14, 2009), similar to the “massacre” claims in Jenin and Qana in the 2006 Lebanon War.
HRW’s investigation claimed that the “IDF’s repeated firing of air-burst white phosphorus shells from 155mm artillery into densely populated areas was indiscriminate and indicates the commission of war crimes.” Therefore, according to the authors, “these circumstances demand the independent investigation of the use of white phosphorus and, if warranted, the prosecution of all those responsible for war crimes.” These statements at once assert culpability and then call for an investigation to determine it.
While claiming to present “research” findings, this publication, like many others produced by HRW in the series focusing on Israel, lacks a relevant methodology and is based on unreliable Palestinian claims, entirely irrelevant technical “evidence,” and international legal claims.
The report rests on claims to have identified use of this weapon in circumstances that are not militarily justified, particularly with respect to camouflaging troop movements in areas of combat. To make this case, HRW distorts or ignores evidence that is inconsistent with its pre-formed conclusions. In one case, the HRW report states that there was no Hamas activity around the Al-Quds Hospital in Tel al-Hawa. This version ignores a media report quoting a Gazan ambulance driver (Koutsoukis 2009) who stated that Hamas operatives “made several attempts to hijack the Al-Qud’s Hospital’s fleet of ambulances.” In another instance, HRW alleges there was “no indication” of “Palestinian armed groups” operating in Beit Lahiya; photographic evidence shows Hamas fortifications in the town.89 The report also relies on the blatantly anti-Israel Palestinian NGO Al Mezan, even thanking them in the acknowledgments. Among other claims, Al Mezan lists a child as deceased, who was subsequently interviewed by Garlasco in Gaza (Garlasco and Li 2009).
HRW’s inconsistent definition of “human shield” is also reflected in this report. When investigating Sri Lanka, HRW condemns the LTTE for “deploy[ing] their forces close to civilians, thus using them as human shields” (HRW News Release March 4, 2009). Yet in Gaza, HRW ignores the extensive evidence,90 claiming that it “found no evidence of Hamas using human shields in the vicinity at the time of the attacks” despite the fact that “In some areas Palestinian fighters appear to have been present.” The three HRW reports released on Gaza were accompanied by press conferences at the American Colony Hotel.
On April 20, 2009, HRW also published Under Cover of War a 26-page report documenting the killing of “at least 32” Palestinians by Hamas during and after the conflict in Gaza. This report, which dealt with internal violence rather than the conflict and allegations of “war crimes,” was released long after media attention had shifted, and without an accompanying press conference.
The second HRW report, Precisely Wrong: Gaza Civilians Killed by Israeli Drone-Launched Missiles, which was also released with a press conference at the American Colony Hotel on June 30, 2009, consisted of allegations regarding the deaths of 29 Palestinian civilians in six highly ambiguous incidents supposedly caused by high-precision missiles fired by unmanned drones. To stress the purpose of the publication, the term “war crimes” was used seven times, and the alleged drone attacks are termed “unlawful.” The case is entirely speculative, but the conclusions are stated with absolute assurance.
Much of the evidence and the bulk of the text consist of technical and legal claims that are unfounded or irrelevant, but present the façade of expertise. These include references to satellite imaging, precise GPS coordinates, weapons specifications, and Geneva conventions – none of which offsets the complete absence of verifiable evidence. According to Robert Hewson, editor of Jane’s Air-Launched Weapons,91 “Human Rights Watch makes a lot of claims and assumptions about weapons and drones, all of which is still fairly speculative, because we have so little evidence” (Williams 2009).
Additional “evidence” and references are from unverifiable Palestinian testimony and reports from journalists92 and other NGO officials. As is often the case in HRW reports targeting Israel, the report accepts at face value the Palestinian claims of seeing no active Hamas fighters in the area of the alleged attacks.93
Other “evidence” quotes Palestinian claims to have seen and heard the missiles. But Richard Kemp, retired British colonel and Commander of British forces in Afghanistan, (Williams 2009)
questioned whether such distinctions could be made, not least as the Spike’s range is 8 km (5 miles) …In a battlefield, in an urban environment, with all the other noises, it’s certainly more than likely you would not hear something five miles away.
On the legal and moral issues, HRW asserts that drone operators in the midst of the intense conflict should have stopped their activities in order to consult with military lawyers “to help determine whether targets are legitimate.” This suggests that the authors possess no significant battlefield experience in which split-second decisions must be made.
Despite their claims to document Palestinian violations, HRW was remarkably slow to do so. It took six months following the Gaza War – long after media interest had ended – for HRW to publish Rockets from Gaza, August 6, 2009, which belatedly addressed Hamas attacks aimed at Israeli civilians. This was followed one week later with another HRW publication that again focused on allegations of Israeli war crimes, thereby immediately shifting the focus away from Hamas.
The fourth HRW post-Gaza report critical of Israel (White Flag Deaths: Killings of Palestinian Civilians during Operation Cast Lead), published on August 13, 2009, consisted of allegations that the IDF had killed 11 civilians “waving white flags” in seven incidents. This indictment was written by Joe Stork and Bill van Esveld. Much of the 64 pages in this report consists of details regarding the attack sites, technological and military details (“ballistic evidence”), statements by forensic pathologists and medical records of the alleged victims, quotes from documents related to international law, interviews with Palestinians who claimed to have witnessed the events, and allegations made by local politicized NGOs.
As is often the case in HRW reports that target Israel, the legal, medical, technological, and weapons details are not relevant to establishing whether the dead were entirely innocent civilians or involved in the combat, and whether they were, as claimed by HRW, waving white flags and attempting to surrender.
The IDF evidence was far more credible than HRW’s, and a video was posted on the internet dated January 8, 2009 that clearly shows a Palestinian preparing an improvised explosive device (IED) to attack IDF soldiers, who then runs into a nearby home to hide with a group of civilians waving a white flag.94 This destroyed the core of HRW’s case that “All 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.”
In addition, the first and in many ways, central case in White Flag Deaths is based on claims by Khaled and Majdi ‘Abd Rabbo. But as researchers have shown, they have produced many versions of these events since January (Sternthal 2009). The details in these versions are also highly inconsistent with journalists’ reports of this incident and of the role of these buildings in Hamas rocket attacks (Sternthal 2009).
Furthermore, six of the seven alleged incidents are based on the “evidence” and Palestinian testimony provided to journalists or NGOs with highly biased agendas. These include Breaking the Silence,95 and the Gaza-based Palestinian NGOs Al Mezan and Palestinian Center for Human Rights (PCHR). Both of these organizations consistently promote the Palestinian agenda. Reliance on these sources further undermines the credibility of HRW’s analysis and conclusions.
These highly visible flaws accelerated criticism of the validity of HRW reports condemning Israel, and for the first time, HRW felt the need to publish a defense (HRW News Release, Aug. 14, 2009) in an attempt to discredit their critics. But in many ways this rebuttal serves to highlight the NGO’s systemic methodological failures. Ignoring the main video evidence and the contradictions that demolished their case, this attempted defense simply restated the problems of unreliable and irrelevant “evidence” (HRW News Release Aug. 14, 2009):
Human Rights Watch methodology does not rely only on the accounts of victims and eyewitnesses. We examine medical records such as hospital and autopsy reports; forensic evidence left over from attacks, such as bullet casings, tank tracks or ammunition boxes; the attack sites themselves; and we conduct interviews with multiple witnesses, including medical staff and law enforcement, military and other officials and, where possible, the alleged perpetrators.
HRW’s vehement insistence on the validity of its “research methodology” did not solve these problems or end the criticism.