Surely if Human Rights Watch did not exist most of us would want to see it quickly created and would want to join in that effort ourselves. Its work since its founding 29 years ago, as Helsinki Watch, has been generally exemplary given the conditions it sometimes finds in the 70 countries it operates in.

Yet its research, hypotheses, findings, interpretations, reports and recommendations are not infallible and, in fairness, HRW has never claimed that they are.

Its August 29, 2007 128-page Report entitled “Civilians Under Assault: Hezbollah’s Rocket Attacks on Israel in the 2006 War” is a case in point. This Report raises serious questions concerning HRW’s recent drift afield from its original mandate and whether it is becoming a captive of those who house and financially support the human rights organization.

For some perspective, HRW’s most recent Report is not the first it has issued on the subject of resistance to Israeli occupation and aggression over the past few years that has raised concerns within the academic and international legal community.

One need only consult the Mideast section of HRW’s website recently to learn that it is consistently critical of the Palestinian society in sundry ways ranging from domestic violence to various resistance activities against the illegal Israeli occupation which increasingly smoothers every aspect of Palestinian life.

Unfortunately, a deep imbalance, both in the number of reports being issued against the occupiers and the occupied, in terms of the failure to hold accountable the side committing the far greater abuses of human rights which is Israel has become the HRW’s modus operandi in Israel-Palestine as well as in Lebanon.

Last fall, in its press release “Civilians Must Not Be Used to Shield Homes against Military Attacks,” HRW lambasted Palestinian resistance groups for inviting their civilian neighbors to surround homes that have been targeted for air strikes by the Israeli military. HRW barely mentioned that 1,500 Palestinians had been made homeless from house demolitions in the preceding few months and that more than 105 houses had been destroyed from the air. Increasingly, HRW denounces Palestinian attempts at non-violent and collective action to halt Israeli attacks. HRW appears to mold principles, standards and rules of international law to achieve a political objective.

In its press release accompanying its “Findings of Fact and Conclusion of Law” HRW treats the recent appeal to Palestinians to exercise their right to protect their neighbors, and to act in solidarity with non-violent resistance to occupation, as no different from the dozens of known violations committed by the Israeli army of abducting Palestinian civilians as human shields to protect its troops.

Women volunteering to surround a mosque become the equivalent of the notorious incident in January 2003 when 21-year-old Samer Sharif was handcuffed to the hood of an army Jeep and driven towards stone-throwing youngsters in Nablus as Israeli soldiers fired their guns from behind his head.

HRW prefers to highlight a supposed violation of international law by the Palestinians — their choice to act as “human shields” — and to demand that the practice end immediately, while minimizing the very real and continuing violation of international law committed by Israel in undertaking punitive house demolitions against Palestinian families. They do the same with respect to Hezbollah.

In language that would have made George Orwell shudder, Human Rights Watch ignored the continuing violation of the Palestinians’ right to security and argued instead: “There is no excuse for calling [Palestinian] civilians to the scene of a planned [Israeli] attack… knowingly asking civilians to stand in harm’s way is unlawful.” With due respect, this approach is seriously flawed. There is no supporting morality or law for this position. Citizens, Palestinian, Lebanese and worldwide have every right, indeed duty, to project their property and livelihood by peaceful means. HRW knows better.

As Nazareth-based British journalist Jonathon Cook correctly notes , “This (HRW) reading of international law is wrong, if not Kafkaesque. Popular and peaceful resistance to the oppressive policies of occupying powers and autocratic rulers, in India and South Africa for example, has always been, by its very nature, a risky venture in which civilians are liable to be killed or injured. Responsibility for those deaths must fall on those doing the oppressing, not those resisting, particularly when they are employing non-violent means. On HRW’s interpretation, Mahatma Gandhi and Nelson Mandela would be war criminals.”

In fairness it must be noted that one HRW Report does urge the Israeli government to ensure that the army investigates the reasons for the shelling that killed the 19 Palestinian inhabitants of Beit Hanoun.

Yet, after four decades of reporting on Israel’s occupation of the Palestine, HRW has covered most of Israel’s many categories of human rights abuses and so now increasingly ignores them.

HRW appears to have Human Rights and international law monitoring fatigue when it comes to Israel. For example, despite thousands of violations of Palestinian rights at Israeli check points every day, they are ignored by HRW in favor of one report every few years.

HRW under Pressure from the Israel Lobby?

HRW has acted as an advocate with an Israeli brief against the Lebanese Resistance. As a Human rights organization it should base its judgment of whether the Resistance violated International Law by examining the facts and then applying the relevant legal principles. In failing to do this HRW violated its mandate in this case and instead argued Israel’s case while shedding its own neutrality.

–J. Benoit, PhD.

One explanation being offered in America, among human rights and pro-peace, pro-Arab and pro-Muslim groups as well as by Americans seeking to change US policy toward the Middle East is that Human Rights Watch has caved to intimidations by pro-Israeli members of Congress and the AIPAC led US Israeli Lobby. It is no secret that an increasing number of Zionist warnings and threats have targeted HRW and that some of its personnel and supporters have been advised that HRW would be destroyed if it did not balance its criticism of Israel with “equal criticism” of Hezbollah. There has also been an increase since 2002, of efforts by some Zionist organizations in the US, such as the Anti-Defamation League, and the American Jewish Committee have been instructing their members not to contribute to HRW until further notice.

In addition, some HRW researchers have long complained of pressure by Israeli officials and threats that HRW would be expelled from Israel if its reports were not “more balanced.”

Ever since the US based, but increasingly international, Israel lobby intensified its campaign to intimidate HRW in the late 1990s, which action increased following the IOF 2002 assault on the Palestinian camp at Jenin, Palestine, HRW appeared to increasingly follow a pattern of erroneously interpreting international law such as to refuse the Palestinians the right to resist the aggression and occupation and to protect homes from attack. HRW wrongly labels these civilians “human shields” even while admitting that most of the homes are not legitimate military targets. Along with this trend, HRW has remained mute about the common practice in Israel of building weapons factories and army bases inside or next to Arab communities, thereby forcing Israeli civilians to become human shields for the army. HRW has continued its disturbing trend during the 2006 July War when it again skewed legal standards to blame the victims rather than the aggressors.

As Cook has argued in recently, HRW goes soft on Israel because “constant press releases denouncing Israel would provoke accusations, as they do already, that Israel is being singled out — and with it, the implication that anti-Semitism lies behind the special treatment.”

HRW’s annual budget now exceeds $ 25 million. Its employee’s number more than 240 with 70% of its budget estimated to be provided by Jewish contributors. Its landlord at 350 Fifth Avenue in New York City are Zionists and it is increasingly apparent to some observers that HRW too often follows the expectations of the Israel lobby and sometimes rejects equity and justice to buy peace for itself.

Adding to the pressure on HRW are frequent warnings from Members of the US Congress including Tom Lantos, Elliot Cohen, Shelly Berkeley, Adriana Ros-Lehtinen, Gary Ackerman, among others, including AIPAC, who keep a close eye on HRW while more than once threatening to audit, investigate, and shut them down.

Observations on Human Rights Watch’s August 27, 2006 Report entitled ” Civilians Under Assault: Hezbollah’s Rocket Attacks on Israel in the 2006 War:

“The timing of the release of the Report led many observers to believe HRW “was spreading false publicity against Lebanon and weakening the national spirit.” One official Lebanese Judicial report on August 30, 2007 accused HRW of attempting to “prevent the resistance from protecting its country against Israeli assaults and violating Lebanon’s sovereignty.”

The following comment argues that HRW has taken the same skewed approach to Israeli actions in Lebanon during the 2006 July war, as it has increasingly done in Palestine.

HRW’s view of the law and the facts with respect to the Lebanese Resistance’s right of self defense during the July 2006 War

Most lawyers, if their case is quite weak on the facts, may, when preparing to argue their clients case in Court, stress to the Court and especially the Jurors, the heavy and solemn weight and technical aspects of applicable legal principles, standards and rules. They will sometimes tell the jurors that their own personal feelings and intuition do not count and must not interfere with what the law, in the opinion of the advocate, requires. It is an approach crafted to achieve the desired result and which is sometimes based on legal fictions and misleading technicalities.

If the law is against their client’s case the lawyer would likely zealously argue the facts in their clients favor.

It is submitted that HRW, in the Report under review, argues technical aspects and certain selected international legal principles it views in Israel’s favor. It chose this lawyerly approach because the facts of the July 2006 War overwhelmingly and incontrovertibly support Lebanon, the Lebanese Resistance and the civilian victims in Lebanon rather than Israel’s actions.

Some examples:

Throughout its Report, HRW explains and tries to excuse its lack of prohibitive evidence by blaming Israeli censorship:

“Citing national security concerns, Israeli military authorities limited the amount of information publicly available (to HRW) about various aspects of the war, including certain information on where Hezbollah rockets landed during the conflict. These restrictions limited our ability to fully investigate the pattern of Hezbollah attacks”

“We also encountered restrictions on information concerning certain industrial targets. For example, Kobi Bachar, chief of police for the Zvulon district north of Haifa, said, ‘Hezbollah was trying to hit the petrochemical plants in our area. We had hits within the factories, but because of censorship, I do not know if I am allowed to give you that information. In the end he did not provide it.'”

“July 19, Human Rights Watch researchers visiting Haifa’s Rambam Hospital met an IDF soldier being treated for an injury sustained when a rocket hit an air force base just outside the city. He said that the IDF had instructed him not to speak to the press, and in fact the news media never, to our knowledge, reported that rocket attack. A physician at Rambam who said he treated the soldier also told us that the IDF had prevented that particular rocket strike from being publicized.”

HRW complained in its Report that “Israeli censors did not allow HRW researchers permission to report missile hits at IDF bases and/or strategic facilities , or the location of those facilities”.

The fact that the Israeli military did not make it easy for Human Rights Watch to gather evidence they were seeking, or apparently hoping for, does not justify HRW filling in evidentiary gaps or imagine evidence based on intuition and then use that speculation to issue an international indictment against Lebanon and its resistance. HRW admitted that Hezbollah’s claims that its rockets had hit military targets inside Israel more often than the media was reporting were true based on its own findings.

HRW fails to sufficiently acknowledge or weigh the fact that in the north of Palestine, fixed military facilities, such as IDF bases, are located next to or in the midst of civilian settlements, i.e., the IDF’s frequent use of human shields. For example it is well known that the IDF northern command headquarters is located near the city center of Safed — also that the Israeli navy has a major training base on the Haifa waterfront, next to a major hospital and a neighborhood of low-rise apartment buildings.

Moreover, in many cases the IDF fired artillery into Lebanon from locations quite near to residential communities, such as the border villages of Zarit and Arab al-Aramshe. These artillery emplacements constitute military objects; in some of its wartime communiqués, Hezbollah announced that it had directed its rockets at such artillery positions inside Israel.

One of HRW’s most egregious conclusions and misstatements of international law is the following:

“Hezbollah’s attacks in violation of the laws of war, when combined with such statements indicating criminal intent, is strong evidence that some Hezbollah members and commanders were responsible for war crimes.”

HRW concludes there was a violation of international law and then finds criminal intent by joining certain use of puffing or verbal psychological warfare tactics by Hezbollah in press releases including threats to Israeli military authorities’ regarding possible attacks on certain areas if Israel did not stop its carpet bombing of Lebanon.

In concluding that these elements somehow “renders Hezbollah members and commanders responsible for war crimes” is not an accurate reading of international customary law or treaty law. Words in this context and on the facts HRW offer do not establish criminal intent

As Hezbollah leaders have stated, especially in its experience with Israel and in asymmetrical warfare theatres, psychological warfare is increasingly important in dealing with Israel military and political leaders. Israel certainly thought so when it dropped scores of thousands of threatening leaflets, sent threatening text messages to Lebanese phones, broke into TV and radio broadcasts and generally tried to gain military advantage by unnerving its opponents.

Moreover, Hezbollah threats had the effect of sending ten of thousands of civilians out of harms way. That was one of their objectives. By contrast, Israel warned civilians to leave and then bombed them as they fled. This occurred at Marwahin on July 15, at Aitaroun on July 16, on a minibus in the Bekaa Valley on August 10th and on more than one dozen other occasions.

Did not the Lebanese Resistance have a right to use psychological tactics and increase pressure on Israeli authorities to end their attacks by suggesting it had surprises and intended to match the level of response to Israeli attacks?

The psychological tactics used by Israel and Hezbollah during the July War were not illegal under international law.

That there are problems with the enforcement of International law is well known. Also there are some issues that need the attention of an International Conference on Revisions of The Laws of Armed Conflict. One subject that requires attention and discussion is the one raised during the July War by Hezbollah’s Secretary-General Sayed Hasan Nasrallah expressed thus:

“As long as the enemy undertakes its aggression without limits or red lines, we will respond without limits or red lines.”

This statement mirrors international practice. Should it be codified by convention? Does it accurately reflect international customary law?

Certainly the history of warfare reveals that virtually every army has used retaliation, sometimes massively. Dresden, Coventry, Berlin come to mind.

Were there errors in firing rockets by Hezbollah? Certainly. The Lebanese Resistance readily admits this.

Should HRW’s claim that Hezbollah purposely targeted civilian be credited? Not based on the evidence it tenders.

HRW ignored Israeli use of Human Shields

HRW also ignores a plethora of credible reports that Israel used Palestinian Arabs as human shields in the areas north of Haifa by placing arms depots, military vehicles, mobile launchers, and bases near and inside Arab neighborhoods while providing only the Jewish neighborhoods with adequate bomb shelters.

The record of military actions during the July War suggests that Hezbollah may well have known exactly where Israeli military installations were placed and monitored the movement and placement of Israeli mobile positions and launchers before it fired rockets. HRW admits this possibility but avoids the conclusion that Hezbollah had the right to target Lebanon-bound rockets from Israel as long as the military necessity outweighed risk to civilians.

HRW also condemns Hezbollah for firing on Kiryal Shmona but omits mention of the real possibility that Israel did have mobile military sites in that and more than 20 other locations where civilians were nearby.

HRW offers no proof that Hezbollah purposely targeted civilians. It leaves to one footnote the mention that Hezbollah urged civilians to leave the area of the Israeli bases and move south out of danger and that Sayed Nasrallah pleaded for residents to move south and away from Israel positions, declaring that “your blood is our blood.”

HRW seeks to excuse its lack of proof that Hezbollah targeted civilian areas and to avoid its duty to provide compelling evidence by stating that Israeli base locations are classified. This remarkably weak excuse for not meeting its burden of proof could be applied to any unsubstantiated assertion. Most war criminals classify their crimes.

If HRW is not able or willing to provide maps showing the position of Israeli bases in relation to targeting by Hezbollah it should withdraw its unsupported accusation.

The Donald Rumsfeld paradigm?

One of HRW’s main arguments is that “Hezbollah’s means of attack relied on unguided weapons that had no capacity to hit military targets with any precision. It repeatedly bombarded cities, towns, and villages without any apparent effort to distinguish between civilians and military objectives. In doing so, Hezbollah, as a party to an armed conflict governed by international humanitarian law, violated fundamental prohibitions against deliberate and indiscriminate attacks against civilians.”

Does this mean there were no legitimate targets? Did HRW later learn what the targets were?

HRW reports that, “In some of those cases, we could find no evidence there had been a legitimate military target in the vicinity at the time of the attack, suggesting it was a deliberate attack on civilians.”

Suggestions are insufficient when accusing someone of war crimes. Again, HRW’s suggestion is not proof of war crimes. Its suspicions do not meet its required burden of proof or the legal standard to accuse Lebanon’s resistance of war crimes.

Proof beyond a reasonable doubt is the lowest legal standard to be applied, for such a serious charge as war crimes. Under international law no one should be charged, as HRW does, with being a war crime unless there is overwhelming and irrefutable evidence. HRW fails to produce it and fails to meet its burden of proof.

Regarding not being able to find evidence, HRW adopts former US Defense Secretly Donald Rumsfelds edict that “absence of evidence is not evidence of absence.” Rumsfeld was wrong and so is HRW. Absence of evidence is just that, absence of evidence. It is a neutral fact of independence significance and does not convict Hezbollah of War Crimes but rather it suggests the contrary.

That there was no apparent a legitimate military target on the date of HRW ‘research’ means just that. But that alone is not probative evidence that there was no legitimate military target at the time Hezbollah fired its weapon.

HRW concludes, “The justness of the cause does not affect the international humanitarian law analysis.” HRW’s New York lawyers are wrong if they truly believe this conclusion which defies basic common sense, morality and international customary law. Does HRW believe that there exists moral, political, or legal parity between someone who tries to kill another and the response of the victim attempting to stop the continuing life endangering attacks? The Lebanese Resistance had the international legal right and duty to protect Lebanon. By returning fire in an effort to encourage the aggressors to stop their carpet bombing of Lebanon their defensive action were not on the same moral level as the aggressors. Neither domestic laws virtually every neither country nor international customary law equates the acts of aggressors with the defensive acts of the victim. In doing so, HRW errs. International customary law incorporates international morality.

HRW charges that Hezbollah “repeatedly bombarded cities, towns, and villages without any apparent effort to distinguish between civilians and military objectives.” What probative, relevant, and material evidence does HRW have concerning the actual firings logs of Hezbollah, and what a particular target was at the time of firing and whether or not Hezbollah acted “without any apparent effort to distinguish between civilians and military objectives?”

HRW builds it case on language such as “In some of those cases, we could find no evidence there had been a legitimate military target in the vicinity at the time of the attack, suggesting it was a deliberate attack on civilians.”

Even Israeli military leaders have frequently expressed the surprise they experienced by Hezbollah’s prowess, tactics, and battlefield intelligence regarding Israeli positions. The fact that Hezbollah chooses for its own tactical reasons not to share all that it knew about Israeli targets during the July War with HRW (and Israel) does not prove war crimes. This is based damage that, according to examination by HRW, did not reveal a definite military target.

By way of Recommendations following its Findings of Facts and Conclusions of Law, HRW calls on the government of Lebanon to interdict the delivery of rockets to Hezbollah and implies it should disarm the Lebanese Resistance. This HRW demand constitutes interference in the internal affairs of Lebanon. It is for the Lebanese government, not Israel or HRW to decide how its country defends itself.

Finally, the timing of the HRW Report appears politically calculated to achieve maximum publicity for HRW given the great interest in Hezbollah. Within the next few days HRW will issue its report on Israel’s activity in the July war.

Given the sensitive, even tense atmosphere in Lebanon/Palestine of which HRW is well aware, it would have been preferable for HRW to issue one comprehensive Report containing all its findings and not single out just one side

The timing of the release of the Report led many observers to believe HRW “was spreading false publicity against Lebanon and weakening the national spirit.” One official Lebanese Judicial report charged accused HRW of attempting to “prevent the resistance from protecting its country against Israeli assaults and violating Lebanon’s sovereignty.”

HRW’s recent use of harsh, narrow, legalistic judgments on the Palestinian and Lebanese resistance suggests that it has been willing to trim its sails under pressure from the Israeli lobby and as a consequence it may have lost its moral compass and betrayed its mandate.

The international community needs the work of human rights organizations on behalf of victims of human rights abuses. Hopefully Human Rights watch will reexamine its recent work and draw the correct conclusions.