The Flawed Human Rights Watch Report on Gaza

"Human Rights Watch (HRW) recently released a report accusing both Hamas and the Israeli government of committing war crimes regarding an incident in May 2019. During these hostilities, the Israeli Defense Forces (IDF) struck 350 Hamas and Palestinian Islamic Jihad targets in Gaza after those groups launched roughly 690 rocket attacks into Israel. HRW's report claims that both sides unlawfully attacked civilians during the hostilities. While loss of life on all sides of this endless conflict is tragic, the HRW conclusions related to IDF attacks are legally flawed by an 'effects-based"' methodology. By treating the unfortunate effects of attacks as definitively indicating the claimed unlawfulness of such attacks, human rights groups like HRW reinforce the practice of judging compliance with the law of armed conflict (LOAC) by pure numbers: whether armed attacks killed or injured 'too many' civilians.

This tendency by human rights groups to invoke war crimes based on the effects of hostilities, and to conclude that "too many" civilians were killed in a particular attack, is all too common. This frequently used approach to assessing compliance with the international law that regulates the conduct of armed hostilities undermines the legitimacy of states' military operations. It also produces the perverse effect of incentivizing terrorist groups, such as Hamas and the Islamic State, to illegally shield their military operations with civilians. These groups exploit the resultant deaths caused by lawful strikes by professional armed forces such as the U.S. military and the IDF. Indeed, civilians are the weapons de jure used by terrorist groups, and HRW fails to recognize this crucial fact...

HRW is certainly correct to emphasize the legal prohibition against launching an indiscriminate attack, and we share their condemnation of any attack that violates the LOAC. But we do not believe they have made a case for a credible comparison between the conduct of these two parties to the conflict. When Palestinian militants launched missile, rocket and mortar attacks into Israel with no plausible indication the attacks were directed at lawful military objectives, their attacks were not merely "indiscriminate." They indicated a deliberate attack directed at civilians in violation of the principle of distinction, undoubtedly the most egregious violation of the LOAC's targeting rules. Nothing suggests these attacks were directed at military objectives. Nor is there any plausible basis to support a claim of reasonable mistake, as the IDF, unlike its opponents, simply does not utilize civilian communities or buildings in support of its military operations, nor does it exploit the presence of civilians to shield its military assets...

HRW's effects-based methodology is counterproductive to the organization's claimed goal-that of enhancing civilian protection during hostilities. It incentivizes the worst practices of armed groups like Hamas by reinforcing their expectation that increasing civilian exposure to the risks of hostilities-for example, by exploiting the presence of civilians to shield their assets-will produce a net gain in their strategic delegitimization campaign. It also penalizes commanders who engage in good-faith efforts to comply with the law by implying that their obligation is not to make reasonable attack judgments but, rather, that those judgments must always produce the 'right' outcome. Ultimately, this flawed methodology for assessing legality is contrary to both the spirit of the law and the interests of the victims of war whom the law is intended to protect."