Updated February 14, 2013

This week, Human Rights Watch (HRW) made two separate claims of Israeli violations of international law. First, HRW issued a press release “Israel: Gaza Airstrikes Violated Laws of War” (February 12, 2013), once again accusing Israel of killing civilians and destroying property “without lawful justification” during the Gaza fighting in November 2012. Second, HRW’s Israel researcher Bill van Esveld was quoted in a Australian news story, alleging Israel “disappeared” the so-called “Prisoner X” and that Israel violated “the obligation of one country to notify another when the other citizen has been arrested, detained, especially if they die.”

Both represent a common HRW practice: making public allegations of Israeli “crimes” without having any knowledge of the necessary facts. The press release on Gaza, in particular, reflects HRW’s obsessive focus on Israel.

Yet Another Statement on the Gaza conflict

On February 12, HRW released a statement alleging that “At least 18 Israeli airstrikes during the fighting in Gaza in November 2012 were in apparent violation of the laws of war” because they targeted civilians, were indiscriminate, or “caused disproportionate harm to civilians.” HRW also claimed that it undertook “a detailed investigation into the attacks.”

HRW possesses neither the military expertise nor the appropriate fact-finding methodology to make these assessments and conduct proper investigations. Such judgments require knowledge of the military intelligence possessed by Israeli commanders at the time of the strikes, and information on intent of the officers. In contrast, HRW’s “evidence” consists solely of its inability to identify “indication[s] of a legitimate military target at the site at the time of the attack” and Israel’s refusal to explain its operational decisions to the NGO.

HRW’s press release is its seventh document relating to the November 2012 fighting in Gaza and Southern Israel. The disproportionate obsession and political agenda are further seen by HRW’s decision to conduct “field investigations” on that particular conflict, at a time when the UN estimated that over 10,000 people were killed in the Syrian civil war in the month of January 2013 alone.

HRW’s statement also denounced Israeli investigations, claiming that they “were not conducted by trained military police investigators or dedicated to investigating alleged laws-of-war violations.” Therefore, HRW did not wait for a response from the IDF, dealing with HRW’s cases and other attacks, which is anticipated “by late February.”

In fact, Israeli investigations meet international standards, as noted by Judge Mary McGowan Davis (empanelled by the Human Rights Council to lead the follow-up committee to the Goldstone Report), Judge Richard Goldstone, and the Turkel Committee. The real reason HRW does not want to wait for the IDF report is because it will demonstrate that HRW’s claims are baseless, as happened with Israeli responses to the 2009 Gaza conflict and the 2006 Lebanon War.

Prisoner X

HRW’s Israel-based staffer Bill van Esveld was quoted extensively in an Australian Broadcasting Corporation (ABC) exposé on “Prisoner X,” reportedly an Australian-Israeli Mossad agent who hanged himself in prison in 2010. As noted by most media reports, the entire episode remains unconfirmed and speculative.

Yet, according to ABC, van Esveld “described the secret imprisonment of Prisoner X as ‘inexcusable’. ‘It’s called a disappearance, and a disappearance is not only a violation of that person’s due process rights – that’s a crime.’”

However, in commenting on the case, van Esveld had no knowledge whatsoever of what transpired. He does not know whether Prisoner X was actually “disappeared,” whether the family knew of the predicament, and whether he had a hearing or met with a lawyer. There is no indication that HRW has been in touch with members of Prisoner X’s family to confirm or deny the rumors.

In fact, as reported in Israeli media and contrary to van Esveld’s claims, Prisoner X was represented by a lawyer, was informed of the charges against him, and was in the process of negotiating a plea bargain shortly before he committed suicide.  His family was aware of his imprisonment and was in contact with him.  Moreover, Israel’s Supreme Court was also aware of the arrest and ruled on whether the security circumstances warranted a “gag order.”

It also appears that van Esveld made false assessments of international law based on incorrect factual information. Van Esveld told ABC that “The obligation of one country to notify another when the other citizen has been arrested, detained, especially if they die – that is so basic. It is called customary law” and that the Australian government should have been notified by Israel.

Yet, there is no right under international law of automatic notification to a country whose citizen has been detained. Article 36 of the Vienna Convention on Consular Relations states that a prisoner must be informed of his right to contact a consular official and the arresting authorities have to facilitate that contact. Furthermore, this rule may not apply to dual nationals arrested in one of the countries of citizenship.

It is unclear whether van Esveld deliberately misrepresented the law or was ignorant of it.

Media reports also show that Australian officials were notified of Prisoner X’s detention by their Israeli counterparts, further revealing van Esveld’s ignorance of the situation.