In response to:
The Attack on Human Rights Watch from the November 2, 2006 issue
To the Editors:
The article by Aryeh Neier defending accusations against Human Rights Watch of anti-Israel bias [“The Attack on Human Rights Watch,” NYR, November 2] is cogent in its detailed and systematic defense of the Human Rights Watch report, but misses the overarching reason for these accusations. Neier assumes a moral equivalence between Hezbollah and Israeli killing of civilians in the struggle in Lebanon. He treats as idle or irrelevant the explicit Israeli policy of minimizing civilian casualties versus the Hezbollah policy of deliberately firing rockets at civilian enclaves. The Israeli policy is of course irrelevant if in practice it is ignored by the Israel Defense Forces. But even in the case of the tragic incident in which villagers fleeing Marwahin were fired upon and many killed, the policy is germane. Human Rights Watch could have requested an investigation of the incident by the IDF. It is unlikely but possible that an Israeli pilot deliberately fired upon a target that he recognized as consisting of children and innocent civilians. If that was found to be the case, the pilot would have been subject to a military court-martial.
The point here is that Israeli policy with regard to the killing of noncombatants makes an important difference. The Israeli use of cluster bombs in the latter days of the Lebanon conflict, although not cited in the Human Rights Watch report, does raise a significant human rights violation concern. I share Neier’s views in regard to the use of cluster bombs. But here too I would await a justification by the IDF before accusing Israel of a human rights violation.
However, I must add that Neier reveals his own bias toward Israel in his equating of Hezbollah fighters “mingling” with the civilian population, so often for the purpose of hiding weapons and launching rockets, with “Israeli soldiers patroniz[ing] cafés and rid[ing] buses.”
Professor of Psychology
University of California, Los Angeles
Aryeh Neier replies:
Professor Feshbach says that I assume a moral equivalence between Hezbollah and Israeli killing of civilians and that I equate Hezbollah fighters mingling with the civilian population with Israeli soldiers patronizing cafés and riding buses. This is false. I resist efforts to rank or equate violations of human rights. My article does indicate that both sides in the war between Israel and Hezbollah engaged in indiscriminate attacks in which civilians were killed, but it also makes it clear that these should not be judged in relation to each other but separately. I wrote:
One of the fundamental principles of IHL [international humanitarian law] is that violations by one side in a conflict do not justify violations by the other side. Each has an independent duty to respect IHL. Hezbollah’s crimes against Israeli civilians do not justify indiscriminate attacks by Israel against civilians in Lebanon.
Also, I pointed out that those who locate weapons in civilian homes and populated areas are themselves guilty of serious violation of IHL. Yet I noted that this “does not mean that all attacks on civilians were justified.” It was in this connection that I said it would be “monstrous” to try to justify attacks on Israeli cafés and buses because Israeli soldiers are sometimes present.
Professor Feshbach says that Human Rights Watch “could have requested an investigation of the [Marwahin] incident by the IDF.” That incident was an aerial attack on a convoy of vehicles fleeing a Lebanese border village in which twenty-one civilians were killed, fourteen of them children. Human Rights Watch found no indication that there were military personnel or military equipment in the vehicles that were destroyed. Professor Feshbach is apparently not aware that on July 17, two days after the attack, HRW issued a statement calling for precisely such an investigation as the one he says it should have requested. As Sarah Leah Whitson, Middle East director at HRW, said in this statement: “The IDF needs to investigate this attack on a civilian convoy and provide more details about the circumstances.”
At the time, the IDF issued a statement that it
targeted an area near the city of Tyre, in southern Lebanon, used as launching grounds for missiles fired by Hezbollah terror organization at Israel. The IDF regrets civilian casualties while targeting the missile launching area.
There was no specific reference to the Marwahin incident and no direct response to Human Rights Watch. Subsequently, however, on July 28, Haaretz published an interview with the Israel Air Force commander at the base at Hatzor, who called the Marwahin incident a “mistake” and said there is a review of the pilot’s performance after each flight and, if a mistake has happened, the pilot’s commander tells him so. There was no mention of discipline.
If the IDF has taken any disciplinary action for attacks against civilians by its forces in Lebanon, it has made no announcement of it. Previously, in June 2005, Human Rights Watch published a 126-page report, “Promoting Impunity: The Israeli Military’s Failure to Investigate Wrongdoing,” which discussed its performance on such matters since the beginning of the Palestinian uprising in 2000. The report found that few cases in which the IDF caused civilian fatalities had been investigated; and, when investigations took place, they were generally superficial. Ultimately, six soldiers were convicted criminally. The longest sentence was twenty months, less than the sentence imposed by Israeli courts on some conscientious objectors. On November 10, Human Rights Watch again called on the Israeli authorities to conduct “a comprehensive independent investigation,” this time in connection with the shelling of Beit Hanoun in northern Gaza that killed nineteen Palestinian civilians and injured dozens more.
Professor Feshbach says that he would “await a justification [for the use of cluster bombs] by the IDF before accusing Israel of a human rights violation.” In fact, the Israel Ministry of Foreign Affairs issued a statement on September 5 that might be regarded as an attempted justification. It said that the use of such weapons is not prohibited by international law and that Israel warns of such measures in advance even at the expense of losing surprise.
Some readers of my article have told me that they are puzzled by Israel’s use of cluster bombs during the last seventy-two hours of the war. As I pointed out, it is characteristic of these weapons that many of the tiny bomblets they scatter do not explode at the time they are used, but maim and kill people long after. The United Nations is now reporting much higher figures for the number of cluster bombs that were scattered by Israel than those I cited in my article.
Since I did not myself conduct an investigation in Lebanon, I will not speculate why the cluster bombs were used by Israel. On the other hand, I believe that my observations of attacks on civilians in other war zones may shed light on the reasons that armed forces engage in such practices. In the war zones I observed in Central America in the 1980s and in ex-Yugoslavia in the 1990s, the numbers killed and injured were many times higher than in Lebanon or Israel. In some cases, guerrilla forces try to win the loyalty of civilians by claiming that they will protect them. The massacres carried out by the Guatemalan army in the early 1980s discredited the guerrillas by proving they could offer no protection. A variation on this strategy is that some armed forces attempt to demonstrate to civilians that it is dangerous to allow guerrillas to live among them. I believe this was a factor in the high civilian death toll in El Salvador in the 1980s. Another reason for such attacks is that if a territory is depopulated, it can be turned into a free-fire zone that makes it impossible for a guerrilla force to operate there.
Precisely because of their potential to inflict damage over a long period of time, cluster bombs are particularly effective if the purpose is to depopulate a region. When people see their neighbors losing limbs or killed by these weapons, even the misery of a lifetime in a refugee camp may seem preferable to staying on their land and living in their own homes. Advance warning that weapons will be used that will make their communities uninhabitable is not much help. If the IDF intended to make it difficult or impossible for many civilians to return to southern Lebanon, it would have made sense to use cluster bombs during the final hours of the war when its own soldiers who had crossed into Lebanon were out of harm’s way.
The fact that armed forces may have rational purposes when they attack civilians does not, however, imply that such conduct is legitimate. It is not. Deliberate indiscriminate attacks against civilians are criminal. My point, rather, is that the terrible abuses that take place during armed conflict often reflect cold calculation rather than wanton bloodlust. Again, I don’t know why Israel used cluster bombs. While I can imagine possible reasons, the IDF’s September 5 statement cast no light on the subject. My difference with Professor Feshbach is that while he would await a justification by the IDF, I see no possible justification for the use of cluster bombs.
Another letter to the editors makes two criticisms. First, it says that the report by HRW on Palestinian suicide bombings that I cited was published only two years after the start of the second intifada while HRW’s condemnations of Israeli actions are much quicker and more frequent. In fact, HRW issued twelve press statements condemning suicide bombings between November 21, 2000, and August 7, 2002, before publishing its highly detailed report on the subject on November 1, 2002. Ken Roth tells me that “it was my frustration at the utter pointlessness of these protests that led me to commission the more in-depth study in the hope that pinpointing command responsibility would make more of a difference.” I should add that producing such an in-depth study is arduous, expensive, and time-consuming. While it is not possible in the space I have here to summarize that report’s findings, I believe it broke new ground in a human rights group’s application of IHL to the practice of suicide bombing and in its attributions of responsibility.
Second, the letter points out that intent is an important factor in determining whether a crime has been committed and suggests that Hezbollah and Israel may differ in this respect. Here, I think it is important to differentiate the intent that must generally be shown in prosecuting a particular individual and the purposefulness that it is appropriate to attribute to an armed force for its overall conduct. Was conduct infrequent and sporadic or was it sustained and systematic? Hezbollah’s rocket attacks fall into the latter category. Israel’s bombing of civilian homes and vehicles in southern Lebanon, its bombing of a civilian neighborhood in Beirut, and its use of cluster bombs were also sustained and systematic. That is not a sufficient basis for determining that the particular pilot who bombed the vehicles fleeing Marwahin was guilty of a war crime. Perhaps he made a mistake or dropped the bombs by accident. But the fact that such episodes took place over and over again does seem to me to provide a basis for saying that the IDF acted deliberately in attacking civilians.
Finally, I note that The New York Sun published an editorial on October 19 attacking my article and again attacking Human Rights Watch. For the most part, it is of a piece with the earlier articles and editorials in the same paper that I discussed in my article. But there is one change. Previously the Sun alleged that HRW was biased against Israel. This time, the editorial says that “what has destroyed Human Right Watch’s credibility is the fact that it has clung to its neutrality….” Really?
December 21, 2006