Posted by: sean | October 21, 2009

War crimes and “openness”

goldstone gazaRobert Bernstein, a founder of Human Rights Watch, has penned an essay censuring the organization for its criticism of Israel:

Human Rights Watch has lost critical perspective on a conflict in which Israel has been repeatedly attacked by Hamas and Hezbollah, organizations that go after Israeli citizens and use their own people as human shields. These groups are supported by the government of Iran, which has openly declared its intention not just to destroy Israel but to murder Jews everywhere. This incitement to genocide is a violation of the Convention on the Prevention and Punishment of the Crime of Genocide.

Leaders of Human Rights Watch know that Hamas and Hezbollah chose to wage war from densely populated areas, deliberately transforming neighborhoods into battlefields. They know that more and better arms are flowing into both Gaza and Lebanon and are poised to strike again. And they know that this militancy continues to deprive Palestinians of any chance for the peaceful and productive life they deserve. Yet Israel, the repeated victim of aggression, faces the brunt of Human Rights Watch’s criticism.

The organization is expressly concerned mainly with how wars are fought, not with motivations. To be sure, even victims of aggression are bound by the laws of war and must do their utmost to minimize civilian casualties. Nevertheless, there is a difference between wrongs committed in self-defense and those perpetrated intentionally.

This is wrong on many levels. First of all, for all his ignorant bluster and malicious holocaust denial, Ahmadinejad has never threatened to “murder Jews everywhere.” In fact, at around 25,000 people, Iran has the biggest Jewish population outside of Israel in the region. So if the Iranian regime, despicable as it is, has decided to start murdering Jews, that’s news to the tens of thousands of them who currently live in Iran.

Second, Bernstein seems to be saying that ostensibly democratic nations should get a free pass on human rights abuses. So by this logic, Guantanamo Bay would be fine, but a comparable detention center in, say, Uzbekistan wouldn’t be, because the former country is democratic while the second is authoritarian.

He finds fault with the idea that human rights groups ought to look at conduct instead of motivation. But motivation is by its very nature a subjective measurement. Israelis think that Hamas is motivated to send rockets because they just want to kill Jews, whereas Palestinians will tell you that their motivation is to do with 40 years of occupation and the blockade of Gaza’s land and sea borders. Conduct, on the other hand, is a much more objective thing to measure. Either Israelis used white phosphorous in populated areas or they didn’t.

What Bernstein, who surely knows better, is failing to note is that the fourth Geneva Convention, which is the international mechanism that deals with the treatment of civilians during war, makes no distinction between acts carried out by “open” societies and “closed” ones. Nor does it distinguish between “wrongs committed in self-defense and those perpetrated intentionally.” Finally, the convention states that even if a country’s enemy is not a signatory of the convention, that country is still bound to uphold the laws of war and that if one party of a conflict does not abide by these laws, that is not a reason for the other to fail to do so.

Simply put, a country, no matter how democratic or “open” it may be, cannot get a free pass on war crimes just because it is defending itself. A country’s responsibility to uphold the Geneva Conventions is not dependent on the nature of its enemy. The Israeli Supreme Court itself has said,

This is the destiny of a democracy: She does not see all means as acceptable, and the ways of her enemies are not always open before her. A democracy must sometimes fight with one arm tied behind her back.

Some wrongheaded defenders of Israel have claimed that because Israel is “defending itself,” the responsibility of dead Gazans lies at the feet of Hamas instead of the IDF, which has actually killed them. They often confuse motive with intent. The first explains why a country has done what it has and is irrelevant when discussing war crimes. In this case, Israel attacked Gaza in response to rocket attacks, whose motives were in return a response to the occupation and the blockade on Gaza (insert cycle of attacks and reprisals here).

On the other hand, intent, which is whether or not the action was done intentionally, is relevant to war crimes. So even if my main motive for blowing up an apartment building is to protect troops from rocket fire coming from next door, if I’ve intentionally destroyed that building knowing that the 25 civilians inside will likely be killed, I open myself up to accusations of war crimes. My motive is irrelevant, but the intent is important.

Finally, this all means that neither a country’s “openness” nor how democratic it is has any bearing on whether or not it has committed war crimes.*And as long as we’re talking about “openness,” this year’s ranking by Reporters Without Borders is probably germane to the discussion. In terms of freedom of the press, Israel has slipped to 93rd place out of 175 countries, putting it behind both Kuwait and Lebanon, while also placing 150th for Israel’s extra-territorial holdings, right behind Sudan and Afghanistan.

*Incidentally, for a discussion of how democracies might actually be more inclined to commit ethnic cleansing than their autocratic counterparts, see Michael Mann’s interesting book.



  1. wow thats loose.. motive v intent.. ok.. sure.. :s

    my biggest problem with this whole thing – aside the inherent wrongs – for which i btw have no counter proposal – is that we (israel) should have partaken in the broader UN investigation.. it makes little sense not participating or cooperating and then blaming reports for appearing one sided..

    i began reading the goldstone report yesterday while waiting for a dr’s appointment and i have to admit that it does smell heavily of one-sidedness.. it is full of subjective commentary presented as facts..

    im not just saying this because its “against” israel.. but frankly – i dont expect goldy to understand.. and whatsmore we aided his lack of understanding so how can we complain..

    but that doesnt right the wrongs either..

    media openness is a toughy too.. who decided that feedom of the press should be sponsored by the blood of your soldiers.. who placed it above your right to self defense.. i can certainly see the value of transparently unfolding facts but it doesnt require genius to understand the severe risk associated with publicising your military engagement real time..

    now regarding ethnic cleansing.. this one is also tough.. maybe in more tribal times its obvious.. and when one party clearly uniltaerally identifies another as unwanted.. as the arabs did to the jews region wide or the europeans did to the jews.. or hang on – just pick anyone – did to the jews then thats pretty obvious too..

    but here we have something way more complex.. as well as solutions that involve ethnically cleansing regions from jews..

    arguments are held captive for one side and denied of others..

    when the jews of 1948 were ethnically cleansed from homes that they had purchased in the gaza strip and the west bank did anyone care? or when it happened by arabs before – apart from the brits banning jews from self defence – did anyone do anything?

    i understand that the numbers are not wholly comparable.. but principles are not measured by numbers.. and frankly at some point people need to choose – is it about qualities or quantities.. it the essence or the practicality..

    double standards are rife on both sides..

    but for as long as each side is pushed further in to the defensive corner by irresponsible accusations – solutions will struggle to emerge..

  2. What I don’t understand is Israel’s big-headiness. Why not just start an inquiry yourself, at least to have the UN off your back. I guess the answer lies somewhere in the believe that Israel is immanently right. Right because of its history of suffering, right because of its card blanche, right because the countries around it are far more barbarous or at least so so one is told whenever Israel is criticized.

    This however seems the inherent answer, one gets in the region when criticizing states. That and the numbers of Reporters sans Frontieres seem to suggest that Israel belongs more and more into this region.

    Finally I am rather shocked by the fact that there is so little questioning from, even the most liberal Israelis. Let’s say China had been attacked by Tibet. China thus decides to hermetically lock Tibet inn, and all press out, and bomb the shit out of it. I am sure many of these liberals would be appalled.

    And yes, morals are not a utilitarian number game. That doesn’t mean however that they can obscure a gross power imbalance and the abuse thereof. Have you even looked at the death-toll on both sides?

  3. thats not true btw.. many israelis had real issues with this conflict..

    i remember during the lebanon war in 2006 there was this sense of whats going on.. whats the purpose and what are they trying to achieve.. and at a certain point the sense was “this is too much” and “stop now”.. but the rockets kept on coming so there seemed to be a justification of sorts..

    with gaza – almost from day one – the sense was “this is useless” and many people felt strongly against and the anti war protests amongst jewish israelis did not delay..

    there were many people that debated the sides.. it wasnt as uniform as our government may make it seem.. having said that – at the same time – there was a sense of “what alternatives are there”..

    i dont think there is a illusion of impunity.. but moreso a belief that the world is genuinely disinterested in our security risks and that the UN in particular has tacitly facilitated wrongs committed against us.. this feeling enures even today as violation after violation by the hizbulla goes unreported until an arms cache explodes or some other tragedy causes the facts to float..

    as israelis we feel that no one else will ever come to the rescue and that after the holocaust in europe and our even more catastrophic ethnic cleansing from arab states – israel is our last refuge..

  4. regarding the numbers – yes i know them – or at least the various versions.. and i know very well the close to 1M jews that were chased from arab lands last century.. there was virtually no arab regime that remained friendly to its jews.. and having friends with relatives in iran i can tell you that the jews there arent exactly in heaven either..

    numbers are a fickle tactic at emphasising a ine sided approach..

    the reality is that we have a complex and protracted conflict that requires responsible resolution.. the kind that draws the parties to the table and assists them to work out differences.. some very real differences.. so that they can finally appreciate each other’s shared commonalities and put down the guns..

  5. I’ll read through these responses later, but about Israeli support of the war, this is from Ha’aretz, three weeks into the war in Gaza:

    Despite pictures from Gaza depicting massive destruction and a large number of wounded and killed, including women and children, 82 percent of the public believe that Israel has not “gone too far” with the military force it is exercising against Hamas.

    This means that almost all Israel’s Jewish citizens warmly support the operation, its goals, firepower and management.

  6. […] and Israel The Economist has an interesting post on the Bernstein op-ed, which I looked at the other day: Mr Bernstein has little concrete to say about allegations, substantiated by the UN’s […]

  7. A few comments:

    1. Actually the distinction between intent and motive is not loose at all. It is well established and very important in human rights law, especially as concerns genocide.

    2. I’m really, really tired of this whole “the world doesn’t understand us” bit. You know what, you’re right, I don’t understand. I don’t understand how a population can have no scruples about kiling women and children, the shooting and crying cliché notwithstanding.

    3. Ethnically cleaning Jews? Are you serious? All settlements have been made on illegally (most even by Israeli standards) confiscated land, and when part of a peace deal means giving that up, you’re going to charge the world with ethnically cleansing Jews? When the best-case scenario for a two-state solution is offering Palestinians 21% of their homeland, you’ve got the chutzpah to charge that Jews are being ethnically cleansed? Give me a break.

    4. As I showed above, the vast majority of Israeli Jews were for the war in Gaza. Likewise, if my memory serves, the approval rates of the war in Lebanon were only slightly lower during the onslaught. I’ll see if I can find the stats later today.

  8. u showed nothing.. a left wing paper publishes a survey in which 561 people were surveyed

    give yourself a break

  9. Well besides the Ha’aretz poll, there is also this:

    For the time being, the Israeli public are overwhelmingly supportive of the Gaza assault. The Channel 10 poll found almost three out of four Israelis backed the ground operation.

    and this:

    More than 90% of Jewish Israelis back the invasion, although that view is reversed among Israeli Arabs, according to the latest War and Peace Index in December.

    Attitudes among Israelis are so hardened that 80% would oppose Israel opening its crossings to Gaza even if Hamas stopped firing on southern towns such as Ashkelon and Sderot, the monthly survey, conducted by Tel Aviv University for the last 15 years, showed.

    I challenge you to find me a single poll that shows even a quarter of Jewish Israelis against the war in Gaza.

  10. The Goldstone Report which criticizes Israel for their actions in Gaza has stirred alot of controversy. Bernstein has made a couple great points, but Goldstone stands by his statements. He is debating Dore Gold of the Jerusalem Center for Public Affairs ( this Thursday, 5pm at Brandeis. The webcast link is available at

  11. so u want me to waste time to start a survey battle? sorry buddy.. there are more interesting discussions to be had..


  12. A survey battle? I asked for a single, solitary piece of evidence to back up what you’re claiming. So in other words, you don’t have any evidence to support your idea that a lot of Jewish Israelis were against the war in Gaza. Granted, I don’t speak or read Hebrew, but I didn’t see a single thing in English, French or Arabic that suggested that Jewish Israelis didn’t overwhelmingly support the war in Gaza.

  13. u dont live here and u didnt speak to people.. i have no reason to make it up..

  14. and yes even if there was overwhelming support it doesnt mean that a lot of people werent against it at the same time..

    u have to leave your desire to debate all the time.. im offering you a window and you keep shutting it..

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