HRW and AI: Substituting Lex Ferenda for Lex Lata
In a
brilliant monograph written by Asher Fredman for
NGO Monitor and JCPA, Amnesty International and Human Rights Watch's seemingly factual statements regarding the Law of Armed Conflict (LOAC) are examined - and found to be sorely lacking.
Fredman goes through the NGOs' writings concerning Operation Cast Lead and shows that their conclusions concerning the use of white phosphorus and UAVs do not reflect international law as it is (
lex lata) , but rather how they would like international law to be (
lex ferenda.)
Excerpts from the summary:
It is shown that the NGOs’ [1] descriptions of the means and methods of warfare contain numerous unwarranted assertions and unsubstantiated claims. In other cases, the NGOs present unrealistic depictions of the nature of modern combat, leading them to problematic evaluations of Israeli actions. It appears that these result at least in part from a lack of expertise in relevant areas.
From the legal perspective, it will be argued that the NGOs’ presentation of several key LOAC principles is inaccurate or incomplete. In other instances, AI and HRW present controversial interpretations of LOAC treaties as widely accepted customary law. This suggests that the NGOs may be engaged in “standard setting” [2] rather than in objective evaluations.
On white phosphorus (WP):
Among the findings are that:
LOAC, as reflected in state declarations and practice, recognizes the right of a commander to consider military needs, particularly force protection, when evaluating what actions and precautions are feasible in a given situation.
HRW’s claim that Israel could feasibly have used a different type of smoke obscurant to the same effect as WP is contradicted on several counts by military sources and weapons experts.
AI and HRW's arguments regarding the feasibility of using other means and methods to deliver WP are unsubstantiated and based upon information unavailable to the NGOs. Suggested alternatives may, in fact, have posed a greater danger to civilians.
Contrary to the claim that Israel’s use of WP was indiscriminate and hence unlawful per se, its use was “directed at a specific military objective” and therefore lawful under LOAC.
On the use of UAVs:
Among the findings are that:
The evidence AI and HRW present to establish their claims regarding the weapons platforms and munitions allegedly used is rendered questionable by military and defense industry sources. In a number of instances, the witness testimony relied upon heavily by the NGOs is contradicted by widely published media reports or the NGOs themselves.
AI and HRW present an unrealistic depiction of the factors influencing targeting decisions on the modern battlefield. They fall prey to the “allure of precision” that leads “those beyond the battlefield [to] impose unreasonable demands on the military or postulate norms that go beyond treaty or custom” (Schmitt, 2004, p. 466).
Israeli actions are judged based on hindsight, in contrast to LOAC standards as affirmed by the declarations of 13 countries when ratifying Additional Protocol I to the Geneva Conventions.
The NGOs misrepresent LOAC definitions of legitimate military objectives. On the basis of this misrepresentation, they presume the absence of legitimate military objectives in the vicinity of a strike.
Once presuming the absence of legitimate military objectives, the NGOs assume that civilians injured in a strike were deliberately targeted. This allows them to ignore LOAC’s recognition of the possibility and lawfulness of proportional collateral damage in attacks on military objectives.
Conclusion:
The findings of this study indicate that at least in their reporting on the Israeli-Palestinian conflict, AI and HRW’s reports contain many factual inaccuracies and problematic presentations of international law. It is therefore suggested that AI and HRW, as well as other NGOs dealing with similar issues, carefully evaluate their areas of competency, and ensure that factual and legal assertions are made with the proper degree of expertise. It is further suggested that the NGOs take steps to maintain standards of objectivity and ensure that ideological predilections do not color their analyses. When claiming to evaluate the lawfulness of a party’s actions, the NGOs must not conflate lex lata (the law as it exists) with their preferred lex ferenda (what the law should be).
As I showed in
AI's contradictory and
HRW's bogus definitions of "occupation."
Policy-makers, diplomats, and journalists should more carefully scrutinize NGO-generated information. Subjecting NGO reports and statements to careful analysis will help ensure that these documents are produced at the highest standards. This would enable NGOs such as AI and HRW to most effectively fulfill their mission of promoting and protecting human rights.
Don't expect HRW or AI to respond in any substantial way. As we have seen, NGOs tend to get very
shrill and defensive when light is shined on them.
