Anyone following last summer’s war between Israel and Hezbollah knows that international human rights groups such as Amnesty International were fiercely critical of Israel, accusing it of violating international law by inflicting disproportionate harm on civilians. What the public might not know from these human rights groups’ reports — but what Amnesty has now conceded in a letter to the American Jewish Congress — is that respected authorities differ substantially regarding this area of the laws of war. Such caveats, sadly, were absent from the oversimplified accounts of last year’s Israel-Hezbollah war.
Groups such as Amnesty and Human Rights Watch enjoy considerable public confidence. Reports by these agencies that a nation is violating internationally recognized legal norms are typically treated as highly credible by the press and public.
That credibility rests on three assumptions. First, that these groups have honestly researched all the relevant facts and not just selected ones designed to make a case. Second, that they are partisans of human rights and not of any particular nation or political position, such as anti-colonialism or suppression of terrorism. And third, that they base their conclusions on accurate statements of international law.
Critics of groups like Amnesty and Human Rights Watch often criticize their compliance with the first two assumptions, charging them with misstating the facts or of concealing an anti-Israel bias. Jewish groups critical of these groups’ evaluation of the Hezbollah-Israel war have contested their fact finding, in particular with the way they have addressed Hezbollah’s efforts to hide among civilians.
Relatively little attention, however, is paid in the media to the third assumption, that of accurate statements of law. This is most unfortunate, because groups like Amnesty at least sometimes read international law as advocates rather than as dispassionate observers.
Invocations of the Geneva Conventions, international humanitarian law and other instruments of human rights law by human rights groups give the impression of a well-defined body of law, with clear rules from which no civilized nation or student of the subject dissents. As with any other body of law, though, much of that law is obscure and contested, even conflicted. It is subject to radically different interpretations as it balances other interests — some no less important than the protection of civilians. Sometimes the disputes are so fundamental that it is hard to tell that the adversaries are discussing the same body of law.
Surely, it is more headline-grabbing to assert that Israel or some other country violated settled human rights law than it is to claim that in one view of the law a violation has occurred but that in another the state acted legally. Surely, too, it is understandable for human rights advocacy groups to emphasize the civilian-protecting aspects of international law rather than the aspects endorsing a nation’s right to use force to defend itself. Such selective reporting is, however, intellectually dishonest.
An example of how disputes about the substance of international law can distort evaluations of legality was Amnesty’s repeated criticism of Israel for illegally destroying civilian targets. Israel responded that Hezbollah had deliberately adopted a policy of locating its military resources in the midst of civilians, thereby making them human shields and making it impossible for Israel to conduct an effective war on such groups without harming civilians. It claimed that its actions were designed to comport with international law, including the right to national self-defense.
An Amnesty report issued during the war, for example, argued that if Hezbollah set up a rocket launcher on the roof of a civilian house, the house could not be attacked because by the time the attack had begun, the rocket launcher would likely have been moved and the house returned to its protected civilian status. The AJCongress wrote Amnesty, citing authoritative texts and respected international lawyers, arguing that this was an incorrect and impractical reading of all the relevant law.
Amnesty responded by acknowledging privately what it has not said publicly: “This is admittedly a difficult area of the laws of war, subject to different interpretations, including on how it is to be applied in situations of human shielding. We are aware of the views of a range of scholars, including Yoram Dinstein.”
Dinstein is a professor at Tel Aviv University, and the author of two of the most widely cited works on the law of war. His work — which the AJCongress cited in its correspondence with Amnesty — emphasizes both the protection of civilians and the necessity of allowing effective warfare.
The problem of responding militarily to groups systematically using civilian shields while complying with the Geneva Conventions is so difficult, in fact, that a British Cabinet official, Kim Howells, told Parliament recently that Hezbollah’s shielding tactics make “one wonder how it can ever be possible” to “win with justice on your side against such an enemy.” But readers of Amnesty’s reports would know none of this.
Amnesty’s counterintuitive interpretation of the law of war was not challenged in the media. Its reading stems from an advocate-slanted reading of law — namely, that the primary purpose of the Geneva Conventions is the protection of civilians, and not, as is historically the case, a balancing between the protection of civilians and the effective conduct of war. It is not without reason that groups like Amnesty generally use the term “international humanitarian law,” a phrasing that suggests a focus on protecting civilians, rather than the older and more accurate term “law of war.”
Amnesty and other human rights groups serve a valuable function in advocating their views of what the law should be. They should not, however, pass off legal advocacy as neutral reportage.
Marc Stern is general counsel of the American Jewish Congress.