A just-released Israeli commission report vehemently disputes the France 2 video made in 2000 of a Palestinian father and his son crouching for shelter from bullets allegedly fired by Israeli soldiers. This is a media controversy but it parallels the decades-long dispute between Israel and the human rights organizations that have issued reports on violent clashes in the West Bank, Gaza, and Lebanon. Simply, the reporting process on these confrontations has broken down.
Nearly twenty-five years ago, on behalf of a U.S.-based human rights organization, one of its staff members and I went to Israel to investigate the response of the Israeli military justice system to allegations of excessive force by Israeli soldiers in the First Intifada. I had gone on human rights missions to other countries and had been a federal criminal prosecutor.
If you look for a report of this mission, however, you won’t find it.
A central event of our trip, which took place in October 1989, was a meeting with military prosecutors from the office of the Military Advocate
General (MAG) of the Israel Defense Forces. Meetings between human rights investigators and government officials in most countries typically are predictable affairs. In the former Soviet Union, where I had gone to represent Jews sent to Siberia because they had demanded the right to emigrate to Israel, these meetings were conducted in ornate conference rooms with each side formally seated at a wide table covered with green felt cloth. The Soviet officials rarely spoke and then only in short, defensive sentences, and never smiled.
In other countries – for example, apartheid South Africa, where I had once gone to monitor a political trial – the officials went on the offensive. On that trip, I had dinner with the trial prosecutor, who, just as the waiter set the main dish on the table, pulled out photographs of gruesome atrocities allegedly committed by the organization whose representative was on trial – and insisted that I inspect them one by one while we ate.
But the meeting in Israel with MAG prosecutors, in a nondescript conference room in an IDF building, followed none of these patterns. I expected either an offensive or defensive response from the MAG officers, partly because the pre-trip briefing materials had been so negative about the military investigations. Typical was The Jerusalem Post article that quoted a Hebrew University law professor as saying, “Investigations are usually restricted to the versions of the soldiers who were present at the scene.”
My colleague and I explained why we had come to Israel, and then identified a number of excessive-force cases that, as suggested by one source or another, had not been adequately investigated. The MAG officers, lawyers who appeared to be in their thirties, responded in a relaxed, cooperative manner.
At one point one of the MAG officers got up, left the room, and returned carrying several case files, which he opened. These files were generally one to two inches thick and contained maps showing the location of Israeli units on the day of each shooting incident, medical records, statements from or about witnesses (some quite lengthy), results of polygraph examinations apparently administered to Israeli soldiers, and reports by the investigators. They could have been FBI case files.
We had received frequent complaints that the IDF investigators had not made sufficient efforts to locate the bodies of Palestinians to conduct autopsies. At one point, I asked the MAG officers what had been done to locate and exhume the body in a particular case. They could not have anticipated this question. One officer leafed through the case file and then said the IDF investigator had managed, through interviews of Palestinians, to identify a possible site of the victim’s burial but had not been able to find the actual grave.
A MAG officer came into the room to speak with his colleagues. Apparently, a military court had just ruled against the prosecution on an evidentiary issue in the middle of a trial of an excessive-force case against an Israeli soldier. He and his colleagues conferred on how to handle the ruling and the officer left. The resemblance of this scene to events from my time as a federal prosecutor in the U.S. Department of Justice was striking. It had the feel of a working, professional prosecutors’ office.
While there was certainly room for improvement in the IDF’s response to excessive-force incidents, it was not possible to conclude, at least in the cases we looked at closely, that the IDF had failed to do a serious investigation. Significantly, nothing in that room or in the case files resembled the condemnatory reports by human rights organizations on the Israeli military’s investigations.
I shared my conclusions with my colleague, a professional human rights worker with responsibility for Middle East reporting for this organization, who then prepared a draft report of our mission. I read it and concluded that we had been visiting two different countries. I brought my disagreement to the attention of the organization’s executive director and, shortly afterward, with the draft unchanged, my involvement with this mission ended. No report was issued.
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Since the First Intifada, the human rights reporting process has suffered a breakdown eerily similar to my mission, albeit on a much larger scale. Following the Gaza War in 2008-09, the UN Human Rights Council appointed a fact-finding mission chaired by a Jewish South African jurist, Richard Goldstone. The Goldstone Report, published in September 2009, found that both Israel and Hamas had intentionally targeted civilians. A subsequent report by a UN committee of independent experts, chaired by a former New York judge, Mary McGowan Davis, followed up on the recommendations of the Goldstone Report. But the Davis experts found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”
Then, on April 1, 2011, in an op-ed article in The Washington Post, Judge Goldstone recanted his report’s conclusion that Israel had intentionally tried to kill Palestinian civilians. “If I had known then what I know now, the Goldstone Report would have been a different report.”
A month after publication of the Goldstone Report, another remarkable op-ed appeared, one in The New York Times. Robert Bernstein, the founder and former chair of Human Rights Watch (not the organization that asked me to go to Israel), publicly broke with HRW over its reporting on Israel. He accused HRW, one of the most influential human rights groups, of losing its “critical perspective” on the Israeli-Palestinian conflict, writing “far more condemnations of Israel for violations of international law than of any other country in the region,” even though the region was “populated by authoritarian regimes with appalling human rights records,” and “helping those who wish to turn Israel into a pariah state.”
The following year, an investigative article in The New Republic by Ben Birnbaum revealed deep tensions not just between Bernstein and HRW but within HRW’s own board over the organization’s policies and reporting on Israel. One board member told Birnbaum that, following the 2006 Israel-Lebanon War, “it seemed to me that there was a commitment to a point of view – that Israel’s the bad guy here.” The article reported as well that since 2000 HRW had issued as many full-length reports on Israel as on Iran, Syria and Libya combined.
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For many, the bias of human rights organizations against Israel is a self-evident fact of life, as immutable a force as gravity. But the recantations and criticisms do not shed much light on why, for example, a Jewish jurist with exemplary human rights credentials would make such a profound mistake. The oft-made charges of anti-Semitism against human rights groups share the same flaw as the Goldstone Report by inferring a particular state of mind from non-particularized facts – in the one case, unbalanced, if not biased, human rights reports; in the other, the fact of civilian deaths in war.
The reasons are far more complex, rooted in part in the sheer difficulty of fact-finding in the Palestinian-Israeli conflict. It was not rocket science, for example, to report objectively on human rights violations in the Soviet Union during the 1970s and 1980s, or in Africa in the 1990s, where political oppression and mass murder, respectively, did not involve contested facts.
By contrast, a human rights evaluation of the IDF’s response to excessive-force cases arising from Israeli-Palestinian confrontations is uniquely challenging. To bring such cases, military prosecutors must have proof beyond a reasonable doubt. Since soldiers, like policemen, rarely admit to using excessive force, witnesses must come from the community of the alleged victim. In normal investigations, for example, in the United States of a police shooting of a civilian, eyewitnesses are often forthcoming, but even when they hold back, community members act as intermediaries to obtain their cooperation.
In the West Bank and Gaza Strip, however, the communities of the investigator and the victim are in often violent conflict. To say the least, the normal investigator-victim dialogue is disrupted. Even so, according to a report by the Israeli government, by the time of my trip during the First Intifada, the IDF had brought fifty courts martial against ninety Israeli soldiers for causing death or injuries to Palestinians. Of the ninety soldiers, only nine had been acquitted.
Reports on the First Intifada by Amnesty International acknowledged neither the challenges faced by the prosecutors or their prosecutorial record.
Since the First Intifada, the nature of the conflict – and the nature of war itself – has changed in ways that make human rights reporting even more challenging. As evidence of Israel’s alleged intent to kill civilians, the Goldstone Report focused on the deaths from an Israeli bomb of some twenty-nine members of the al-Simouni family in their home. In fact, as the IDF investigation found, the home was shelled because of an Israeli commander’s erroneous interpretation of a drone image, which finding was cited by Goldstone in his op-ed as a reason for his change of view.
What Goldstone did not satisfactorily explain was how the fact of the bombing alone originally proved to him that the Israel military intended to kill this family. Accidents in the use of precision-guided bombs or missiles were not exactly unheard of by then. In Afghanistan in December 2001, a U.S. Special Forces air controller called in a two thousand-pound bomb strike on his own outpost that killed three American and five Afghan soldiers and wounded twenty others. The controller, who survived, was not suicidal, a deranged maniac, or a Taliban sympathizer. All he had done was change the battery on a Global Positioning System device he was using to target a Taliban outpost north of Kandahar – without realizing that changing the battery had caused the device to reset to the coordinates for its own location.
Even aided by in-house experts on armed conflicts, human rights professionals are generally not suited either by temperament or training to carefully discriminate between tragedies and war crimes in the fog of the Israeli-Palestinian clashes. Human rights staffers sympathize, if not strongly identify, with whomever they perceive to be the underdog – and in this case, to them, it is indisputably the Palestinians. And because it is a highly emotional conflict, their identification is highly emotional, which does not lead to the careful, nuanced judgments this conflict demands.
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Late one night during my Israeli trip, a Palestinian contact took us to an East Jerusalem hospital where a Palestinian was on a respirator, surrounded by grieving family members. He had been hit in the face by some kind of projectile, which left a gaping hole from just below his closed eyes to his chin. The hospital director grabbed my arm and took me through the other hospital wards to view young Palestinian men badly injured in clashes with Israeli soldiers, all the time emotionally shouting, “CBS! CBS! CBS!” – as though I could produce a news camera crew on the spot.
Even though we had no idea how the Palestinian had been so grievously wounded (he later died), or by whom, my mission colleague emotionally insisted that “we had to do something,” as though it was self-evident that Israel was responsible. That incident came to mind when I read in the Birnbaum article that the director of HRW’s Middle East Division, Sarah Leah Whitson, had a poster in her office of the movie Paradise Now, which humanizes (and arguably dignifies) Palestinian suicide bombers, as well as photographs of bereaved Gazans.
Too often, human rights reports on Israel reflect a blindly emotional rush to a less-than-careful judgment. In the third week of the 2006 Israel-Lebanon war, HRW published a report that described an Israeli air strike on the village of Srifa that allegedly killed “as many as 42 civilians.” A year later, in a more complete, apparently less-hasty report, HRW admitted that the strike, in fact, had killed 17 combatants and five civilians.
“Eyewitnesses were not always forthcoming about the identity of those that died, and in the case of Srifa, misled our researchers,” explained the newer report (which, according to Birnbaum’s analysis, also contained dozens of other discrepancies).
In other words, in its first report HRW had uncritically accepted statements by less-than-disinterested eyewitnesses who, like the Palestinian hospital director (“CBS! CBS! CBS!”), may have been acutely conscious of the value of negative publicity against Israel. Even more disturbingly, this episode appears not to have prompted more cautious fact-finding or self-reflection, as witness the subsequent Goldstone Report debacle and the member of HRW’s Middle East advisory committee, who, without addressing – or even acknowledging – these serious factual errors only complained in a letter that Birnbaum had misrepresented the degree of divisiveness at HRW over its Israel reporting.
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Israel is not exempt from human rights scrutiny. But human rights reports on Israeli-Palestinian confrontations have lost their credibility. Unless the groups that issue such reports conduct their investigations in a more careful manner, reach more measured conclusions, and forthrightly acknowledge – as the Davis report, and my own experience, demonstrated – that Israel does seriously investigate allegations of excessive force by its soldiers, those groups are not going to get their credibility back.Gregory J. Wallance
About the Author: Gregory J. Wallance is a lawyer and writer in New York City and the author of “America's Soul In The Balance: The Holocaust, FDR's State Department And The Moral Disgrace Of An American Aristocracy.” He is currently working on a book about three women spies in World War I, one of whom is Sarah Aaronsohn.
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