While there was certainly room for improvement in the IDF’s response to excessive-force incidents, it was not possible to conclude, at least in the cases we looked at closely, that the IDF had failed to do a serious investigation. Significantly, nothing in that room or in the case files resembled the condemnatory reports by human rights organizations on the Israeli military’s investigations.
I shared my conclusions with my colleague, a professional human rights worker with responsibility for Middle East reporting for this organization, who then prepared a draft report of our mission. I read it and concluded that we had been visiting two different countries. I brought my disagreement to the attention of the organization’s executive director and, shortly afterward, with the draft unchanged, my involvement with this mission ended. No report was issued.
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Since the First Intifada, the human rights reporting process has suffered a breakdown eerily similar to my mission, albeit on a much larger scale. Following the Gaza War in 2008-09, the UN Human Rights Council appointed a fact-finding mission chaired by a Jewish South African jurist, Richard Goldstone. The Goldstone Report, published in September 2009, found that both Israel and Hamas had intentionally targeted civilians. A subsequent report by a UN committee of independent experts, chaired by a former New York judge, Mary McGowan Davis, followed up on the recommendations of the Goldstone Report. But the Davis experts found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”
Then, on April 1, 2011, in an op-ed article in The Washington Post, Judge Goldstone recanted his report’s conclusion that Israel had intentionally tried to kill Palestinian civilians. “If I had known then what I know now, the Goldstone Report would have been a different report.”
A month after publication of the Goldstone Report, another remarkable op-ed appeared, one in The New York Times. Robert Bernstein, the founder and former chair of Human Rights Watch (not the organization that asked me to go to Israel), publicly broke with HRW over its reporting on Israel. He accused HRW, one of the most influential human rights groups, of losing its “critical perspective” on the Israeli-Palestinian conflict, writing “far more condemnations of Israel for violations of international law than of any other country in the region,” even though the region was “populated by authoritarian regimes with appalling human rights records,” and “helping those who wish to turn Israel into a pariah state.”
The following year, an investigative article in The New Republic by Ben Birnbaum revealed deep tensions not just between Bernstein and HRW but within HRW’s own board over the organization’s policies and reporting on Israel. One board member told Birnbaum that, following the 2006 Israel-Lebanon War, “it seemed to me that there was a commitment to a point of view – that Israel’s the bad guy here.” The article reported as well that since 2000 HRW had issued as many full-length reports on Israel as on Iran, Syria and Libya combined.
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For many, the bias of human rights organizations against Israel is a self-evident fact of life, as immutable a force as gravity. But the recantations and criticisms do not shed much light on why, for example, a Jewish jurist with exemplary human rights credentials would make such a profound mistake. The oft-made charges of anti-Semitism against human rights groups share the same flaw as the Goldstone Report by inferring a particular state of mind from non-particularized facts – in the one case, unbalanced, if not biased, human rights reports; in the other, the fact of civilian deaths in war.
The reasons are far more complex, rooted in part in the sheer difficulty of fact-finding in the Palestinian-Israeli conflict. It was not rocket science, for example, to report objectively on human rights violations in the Soviet Union during the 1970s and 1980s, or in Africa in the 1990s, where political oppression and mass murder, respectively, did not involve contested facts.
By contrast, a human rights evaluation of the IDF’s response to excessive-force cases arising from Israeli-Palestinian confrontations is uniquely challenging. To bring such cases, military prosecutors must have proof beyond a reasonable doubt. Since soldiers, like policemen, rarely admit to using excessive force, witnesses must come from the community of the alleged victim. In normal investigations, for example, in the United States of a police shooting of a civilian, eyewitnesses are often forthcoming, but even when they hold back, community members act as intermediaries to obtain their cooperation.
