Has Amnesty International Lost Its Way? A Forensic Analysis of Amnesty’s Reports on Operation Protective Edge (Part 3)

Hamas War Crimes and Violations of International Law

The allegation that not just Israel but Hamas as well committed massive war crimes underpins Amnesty’s “balanced” indictment of both sides.  Amnesty’s accusations that Hamas was guilty of  “flagrant violations of international law”—that is, war crimes—fall under two heads: (1) its use of inherently indiscriminate weapons, and (2) its indiscriminate or deliberate targeting of Israeli civilians and civilian objects.  In addition, Amnesty accuses Hamas of having violated the rule of international law requiring it to take all feasible precautions to protect civilians during combat.  Each of these will be analyzed in turn.

Indiscriminate Weapons. 

Amnesty asserts that “all the rockets” in Hamas’s arsenal constituted “unguided projectiles which cannot be accurately directed at specific targets.”  Furthermore, although acknowledging that Hamas did “appear to have aimed some mortars at military objectives,” Amnesty enters the critical caveat that mortars “are still an imprecise weapon and must therefore never be used to target military objectives located amidst civilians or civilian objects.”  In a second iteration, the threshold of legality is set yet higher: “Even in the hands of a highly experienced and trained operator, a mortar round can never be accurate enough to hit a specific point target.  Hence, when mortars are used with the intent of striking military targets located in the vicinity of civilian concentrations, but strike civilians or civilian objects, they constitute indiscriminate attacks” (emphasis added).   Except for hand-held weapons, antitank missiles and IEDs, Amnesty effectively declares illegal the whole of Hamas’s mostly archaic military arsenal.  Indeed, according to Amnesty, “international humanitarian law prohibits the use of weapons that are by nature indiscriminate”; “using prohibited weapons is a war crime”; “firing the rocket was a war crime” (emphases added).  Thus, in Amnesty’s bookkeeping, each time Hamas fired a rocket or mortar shell, it committed a war crime, regardless of whether the weapon struck a civilian or civilian object.  Insofar as Hamas fired 7,000 rockets and mortar shells at Israel, it would have, on Amnesty’s reckoning, committed 7,000 war crimes, even if only six civilians in Israel were killed and only one house was destroyed.  Such a calculation might appear to go some distance toward justifying Amnesty’s “balanced” indictment, but only at the price of turning international law—or, at any rate, Amnesty’s construal and application of it—into an object deserving of derision.  If Hamas’s mere use of these weapons constituted war crimes, it’s also cause for perplexity why Amnesty took the trouble to investigate the ensuing civilian death and destruction.   One might think that, after a bill of indictment tallying thousands of war crimes, further documentation of war crimes would be redundant, akin to beating a dead horse.   Amnesty alludes in passing to the fact that Israeli “violations” of international law during OPE included “attacks using munitions such as artillery, which cannot be precisely targeted, on very densely populated residential areas.”   In fact, had Amnesty bothered to pursue this line of inquiry, it would have discovered that Israel fired no less than  20,000 unguided high-explosive artillery shells into Gaza, an estimated 95 percent into or near populated civilian areas. Thus, to go by Amnesty’s bookkeeping, Israel committed nearly three times as many war crimes as Hamas just in its use of artillery shells, which constitute one of the less salient components of its high-tech killing machine.

Indiscriminate and Deliberate Targeting of Civilians and Civilian Objects. 

Beyond indicting Hamas for the commission of war crimes because it used indiscriminate weapons, Amnesty also, and as a discrete line in its ledger, indicts Hamas for the commission of war crimes because it used these indiscriminate weapons to launch “indiscriminate attacks” and “attacks targeting civilians.”  Article 51 of the Additional Protocols to the Geneva Conventions prohibits “indiscriminate attacks” which inter alia are defined as “those which are not directed at a specific military objective” or “those which employ a method or means of combat which cannot be directed at a specific military objective.”  Thus “indiscriminate attacks” subsumes both these prohibitions, whereas Amnesty splits them into separate and distinct crimes. It exhorts Hamas to “end the use of inherently indiscriminate weapons such as unguided rockets, denounce attacks targeting civilians and indiscriminate attacks.”   The “value” of each Hamas projectile in Amnesty’s bill of indictment has now doubled: Hamas committed a war crime each time it made “use” of an indiscriminate weapon and also each time it launched an “attack”—either indiscriminate or targeting civilians—with one of them.  That neat linguistic subtlety presumably enables Amnesty to boost its indictment of Hamas to 14,000 war crimes (for those who are still counting), even if, still, only six civilians in Israel were killed and only one house was destroyed. It also merits taking a closer look at Amnesty’s indictment of Hamas for “targeting” civilian areas.   It reports that “in many cases” Hamas was—or declared it was—“directing” its projectiles “towards Israeli civilians and civilian objects,” that it “directed them at specific Israeli communities.”  Insofar as Amnesty ruled Hamas’s use of its rockets illegal because they “cannot be accurately targeted at specific targets,” it’s hard to make out how Hamas can additionally be scored for “targeting” civilian communities when it fired them: how does one target an “inherently” un-targetable weapon?  If Hamas publicly proclaimed its intention to target a civilian community, it might be guilty of bluster, but not of a deliberate attack.   Still, it might be contended that Hamas rockets were sufficiently accurate to target a large civilian community, if not a specific object within it.   But, then, why did so many Hamas rockets land in vacant areas away from Israel’s population? It’s not very plausible that Hamas was targeting empty space.  Moreover, Amnesty accuses Hamas of deliberately targeting an Israeli civilian community not only when that was its declared intention but also when its declared intention was to target a “military base” located in the community. If a Hamas press release serves as proof of intent, it perplexes how it proves intent to target civilians even when it manifestly eschews such an intent. In one instance, Hamas verges on scoring a trifecta of war crimes as Amnesty indicts it for firing mortar shells at a kibbutz: the mortar was an “imprecise weapon,” and it was a “direct attack on civilians or civilian objects,” and “even if the attack had targeted IDF troops or equipment in the vicinity of the kibbutz…, the attack would still have been indiscriminate.”  But surely the most bizarre item in Amnesty’s charge sheet is for the death of 13 Gazan civilians apparently caused by a Hamas rocket that misfired.  Hamas is charged with a foursome of war crimes: “it was an indiscriminate attack using a prohibited weapon which may well have been fired from a residential area within the Gaza Strip and may have been intended to strike civilians in Israel” (emphasis added).  It would unduly tax the forbearance of the reader to parse the inanities and incongruities of this nocturnal emission.  But for starters, “indiscriminate attack” against whom?   In any event, however many multipliers Amnesty applies to Hamas’s war crimes, the sum total would still pale beside the horror Israel inflicted.   It is symptomatic of Amnesty’s egregious bias that, whereas it meticulously inventories Hamas’s military arsenal, the reader is left utterly clueless about the magnitude of firepower Israel visited on Gaza.  How many bombs (and of how much tonnage) did Israel drop?  How many missile attacks did Israel launch?  How many tank and artillery shells did it fire?   One searches Amnesty’s OPE reports in vain for answers to these basic questions.  In fact, Israel reportedly fired 20,000 high-explosive artillery shells, 14,500 tank shells, 6,000 missiles and 3,500 naval shells into Gaza. These figures do not yet include bomb tonnage—over 100 one-ton bombs were dropped on the Shuja’iya neighborhood alone.  All told, Israel expended as many as 20,000 tons of explosives during OPE, whereas the total explosive tonnage of Hamas projectiles fired into Israel probably came at most to 35-70 tons. Gaza ranked third globally in 2014 (behind Iraq and Syria, but ahead of Afghanistan, Pakistan and Ukraine) for the number of civilian casualties due to explosive weapons, a majority heavy explosive weapons. The criminal dimensions of OPE can be gleaned from the Breaking the Silence testimonies (see Table 5).
 

TABLE 5: How Israel Fought OPE: A Selection of IDF Testimonies 

* Testimonies are numbered in the collection.

** Bracketed, italicized interpolations by Breaking the Silence.

Although Israel recoils at comparisons between its own conduct and the Nazi holocaust, one of the testimonies (#83) breaks this taboo: “There’s that famous photo that they always show on trips to Poland (organized trips in which Israeli youths visit Holocaust memorial sites) that shows Warsaw before the war and Warsaw after the Second World War.  The photo shows the heart of Warsaw and it’s this classy European city, and then they show it at the end of the war.  They show the exact same neighborhood, only it has just one house left standing, and the rest is just ruins.  That’s what it looked like.”   To avoid mind-numbing redundancy, Table 5 omits quoting the succession of combatants who testified that the IDF’s modus operandi during OPE was shoot to kill anything that moves, often on explicit orders, but also because it was “cool.” The last testimony (#111) in the Breaking the Silence collection provides insight into the society that nurtured this Vandal-like army.  “You leave the [Gaza Strip] and the most obvious question is,  ‘Did you kill anybody?’,” an IDF infantry sergeant rued.  “Even if you meet the most leftwing girl in the world, eventually she’ll start thinking, ‘Did you ever kill somebody, or not?’ And what can you do about it?  Most people in our society consider that to be a badge of honor.  So everyone wants to come out of there with that feeling of satisfaction.”                 

Failure to Take All Feasible Precautions.   

International humanitarian law obliges all parties to a conflict to take “all feasible” precautions/precautions “to the maximum feasible extent” in order “to protect civilians and civilian objects under their control against the dangers resulting from military operations.”  One example is to “avoid locating military objectives within or near densely populated areas.”  The critical caveat is of course “feasible.”   The incorporation of this qualifier in binding law “reflected the concern of small and densely populated countries which would find it difficult to separate civilians and civilian objects from military objectives”; these countries “stressed the fact” that the obligation to “avoid locating military objectives within or near densely populated areas” was “difficult to apply.”   In general, the provision has been construed to mean “those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.” To properly indict Hamas for violating the “precautions” provision, Amnesty would at minimum have to demonstrate two things: (1) that in each specific incident, Hamas had another feasible option “taking into account all circumstances ruling at the time.”  But, as Amnesty frankly acknowledges, “Israeli authorities’ denial of access to the Gaza Strip…has made documenting and verifying specific violations” by Hamas “more difficult”—in particular, the possibly extenuating circumstances in which each alleged violation of the precautions principle occurred; (2) that in general circumstances that make it inherently “difficult to apply” the “precautions” provision—e.g., in Gaza, which is among the “most densely populated places on earth”—Hamas had another feasible option except to fight among civilians.  How did Amnesty negotiate these daunting evidentiary hurdles?   It simply discarded the critical “feasibility” caveat.  Instead, it finds prima facie evidence of a violation of the “precautions” principle whenever and wherever it can be shown (however tenuously) that Hamas was resisting in proximity to civilians (see Table 6).

Table 6  A Selection of Amnesty International’s Evidence That Hamas Did Not Take “All Feasible Precautions” to Protect Civilians

But such a proof in itself proves nothing; fighting in proximity to civilians is not the threshold of illegality set by international law.   One would have to examine in each specific incident whether or not other “practicable or practically possible” options for resisting existed and what were the “circumstances ruling at the time” in each incident.   In its previous report on Operation Cast Lead, Amnesty did take into account these factors and, as a result, a more nuanced—genuinely balanced—picture emerged.  After affirming and documenting that “Hamas and other Palestinian groups endangered civilians by firing rockets from populated residential neighborhoods,” it went on to note: 

Amnesty International has seen no evidence that rockets were launched from residential houses or buildings while civilians were in these buildings.

In Gaza, Palestinian fighters, like Israeli soldiers, engaged in armed confrontations around residential homes where civilians were present, endangering them.  The locations of these confrontations were mostly determined by Israeli forces, who entered Gaza with tanks and armored personnel carriers and took positions deep inside residential neighborhoods.  A resident of a neighborhood in the center of Gaza City told Amnesty International that, as Israeli forces entered Gaza and as rumors spread that they were going to advance into the center of town, Hamas fighters located a 50mm mounted machine-gun in the street by the corner of his building.

…

Hamas and other groups generally store weapons in civilian areas and there is no reason to believe that it was any different during Operation “Cast Lead.”  By doing so, it rendered such locations possible targets of attack and therefore exposed civilians who may have been present to risk.  However, fighting in urban areas per se is not a violation of international humanitarian law, but the parties involved in the conduct of hostilities in an urban setting have an obligation to distinguish, and to ensure to the best of their ability, that their attacks only target military objects.  Israeli forces have at their disposal a range of high-precision weapons capable of pinpoint targeting—within a meter—and recklessly attacking civilians or civilian objects simply because they are in the vicinity of fighters or other military targets cannot be justified.

It would be the wonder’s wonder if Hamas wasn’t resisting much of the time in proximity to the civilian population—it’s Gaza, after all.   Indeed, Amnesty is not indifferent to this dilemma, but the solution it recommends cannot but bewilder: “It should be noted that even though the overall population density in the Gaza Strip is very high, particularly in and around Gaza City, significant areas within the 365km2 of territory are not residential, and conducting hostilities or launching munitions from these areas presents a lower risk of endangering Palestinian civilians.”  For argument’s sake, let us set to one side that: (1) as Human Rights Watch has observed, “open areas are relatively scarce” in Gaza, (2) as Amnesty itself noted in its prior report quoted above, “fighting in urban areas per se is not a violation of international humanitarian law,” and (3) under international law, “a Party to the conflict cannot be expected to arrange its armed forces and installations in such a way as to make them conspicuous to the benefit of the adversary.” Still, the irreducible facts are these: Israel has maintained its occupation of Gaza the past decade largely by remote control; even after the ground invasion phase of OPE was launched, Israeli troops mostly huddled close to the border areas.  On the other hand, Amnesty has declared all projectiles in Hamas’s arsenal illegal.  So, Hamas cannot be “conducting hostilities or launching munitions” against a remotely situated occupying power and still pass legal muster.   The long and the short of Amnesty’s counsel then is, to resist Israel’s illegal and inhuman occupation, punctuated periodically by large-scale massacres, Hamas militants should gather, en masse and unarmed, in an open field.  But, in order to facilitate matters, shouldn’t they also line up like ducks?   Just as Amnesty applied a multiplier to “indiscriminate attacks” by Hamas, so it also engages in an inflation of Hamas’s violations of the “precautions” provision.  What begins in Unlawful and Deadly as “some” and “certain” cases in which Hamas breached this provision, metamorphoses into “far from isolated” and “not…infrequent” violations, until, in the report’s conclusion, Hamas is accused of “routinely” violating the provision and a “consistent failure” to abide by it.   Meanwhile, it is no less instructive what Amnesty elects to pass over in silence.  “In Ashkelon, Sderot, Be’er Sheva and other cities in the south of Israel, as well as elsewhere in the country, military bases and other installations are located in or around residential areas, including kibbutzim and villages,” Amnesty breezily observes.  “During Operation Protective Edge, there were more Israeli military positions and activities than usual close to civilian areas in the south of Israel, and Israeli forces launched daily artillery and other attacks into Gaza from these areas along Gaza’s perimeter.”   But, according to the “precautions” provision, “governments should endeavor to find places away from densely populated areas to site” permanent military objectives, such as military bases, and “as regards mobile objectives, care should be taken in particular during the conflict to avoid placing troops, equipment or transports in densely populated areas.” Israel is far from lacking in empty spaces; it can also choose from a dazzling spectrum of weapons, which can be launched from virtually any terrain and distance.  Didn’t Israel, then, flagrantly violate the “precautions” provision?  Apparently not, according to Amnesty, which utters not a peep of criticism.

…

It cannot be seriously disputed that Amnesty International’s reports on Operation Protective Edge lacked objectivity and professionalism.  They betrayed a systematic anti-Palestinian bias amounting to apologetics on Israel’s behalf.  They also marked a steep regression from the high standard Amnesty set in its reports on the Israel-Palestine conflict during the past two decades.  Amnesty will no doubt be tempted to respond that if this writer criticizes its pro-Israel bias while Israel criticizes its pro-Palestinian bias, Amnesty must be doing something right.   But that’s as if to say, if one gets attacked by the flat-Earthers at one extreme and the round-Earthers at the other, then it proves that the oblong-Earthers must be telling the truth.  A detailed, responsible critique of Amnesty warrants a detailed, responsible reply.  Anything short of one will only confirm the charges leveled. 

It is a separate but still important question, What happened?  In the absence of a smoking gun, one can only speculate on the springs of Amnesty’s abrupt change of course.   In fact, Amnesty is just the most recent of several high-profile cases.  In 2011, the South African jurist Richard Goldstone, who chaired the UN Human Rights Council commission investigating Operation Cast Lead, abruptly recanted his support of the commission’s report, after a vicious ad hominem campaign waged by Israel and its supporters. In 2014, the University of Illinois at Urbana-Champaign abruptly rescinded the appointment of a professor “following a campaign by pro-Israel students, faculty members and donors.” It is no secret that, in recent years, Israel has been losing the battle for public opinion in the West, especially in liberal precincts such as college campuses and the human rights community. It is also no secret that the Israel lobby has resorted to intimidating and strong-arm tactics in order to silence criticism emanating from these quarters.  Amnesty has been in the sights of Israel lobby groups such as NGO Monitor. A recent vote on anti-Semitism by Amnesty’s UK branch suggests that their tactics are having the desired effect.  All the available evidence points to the conclusion that anti-Semitism is at most a marginal phenomenon in British life; according to survey results, well under 10 percent of the population holds a negative opinion of Jews, whereas 60 percent holds a negative opinion of Roma/Gypsies and 40 percent a negative opinion of Muslims. The manifest purpose of the periodic campaigns bewailing a “new anti-Semitism” is to stifle criticism of Israel’s atrocious human rights record. Yet, Amnesty’s UK Board signed on to, while the membership narrowly defeated (468-461), a 2015 resolution calling for an Amnesty UK campaign against resurgent anti-Semitism. 

Whatever the cause of Amnesty’s volte-face, the damage it has done cannot be denied.   Supporters of Palestinian human rights and a just and lasting peace have come to depend on Amnesty as a credible corrective to Israeli hasbara and frequent pro-Israel media bias.  The abdication of its professional mandate cannot but dismay.   Amnesty’s worst sin, however, runs much deeper: its abandonment of a forsaken people suffering under an illegal and inhuman blockade punctuated by periodic, ever-escalating massacres.  If only for the sake of the people of Gaza, one hopes that Amnesty will yet find its way.

[Leading forensic scholar Norman G. Finkelstein has conducted a detailed examination of Amnesty International’s reporting on Israel’s 2014 Operation Protective Edge against the Gaza Strip. His lengthy essay is currently being serialized on Byline, the crowd-funded journalism website where he is a contributing author, and is re-posted on Jadaliyya in three installments (Part 1 can be found here http://www.jadaliyya.com/pages/index/22236/has-amnesty-international-lost-its-way-a-forensic-  and Part 2 here http://www.jadaliyya.com/pages/index/22304/has-amnesty-international-lost-its-way-a-forensic-). Finkelstein aims to raise USD 100,000 for Al-Awda Hospital in the Gaza Strip by 7 September; as of 19 August USD 81,000 has been raised, and donations can be made by accessing his posts on the Byline website. His essay is being reproduced here without the extensive footnotes; these can be consulted at the original site of publication]