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NGO Fact-Finding for IHL Enforcement: In Search of a New Model

  • Gerald M Steinberg (a1) and Anne Herzberg (a2)
Abstract

Human Rights Watch (HRW), Amnesty International (Amnesty), and other like-minded organisations have become major actors in the world of international humanitarian law (IHL). Every year they issue hundreds of publications purporting to document violations and to promote IHL enforcement. These publications are ubiquitously cited in the media, and used as source material for governmental and United Nations inquiries, quasi-judicial bodies, the International Criminal Court, academic studies, and other frameworks. Yet, despite the increase in the number, role and influence of non-governmental organisations (NGOs) working on IHL enforcement, conflicts and civilian deaths show no signs of abating. Among the factors that reduce NGO impact in these areas is the demonstrated weakness of these organisations in the realm of fact-finding, and the tension between these activities and emphasis on political advocacy. This article will thus analyse both objective and subjective aspects of NGO fact-finding during armed conflict, including mandates and methodology, selectivity, the application of legal standards, military expertise and sourcing. These issues will be examined through case studies of Amnesty and HRW publications on the conflicts in Yemen, Ukraine and the 2014 Gaza War. The article will conclude with recommendations for NGOs and the actors with which they interact.

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1 UN Department of Economic and Social Affairs, NGO Branch, ‘Consultative Status with ECOSOC and Other Accreditations’, http://esango.un.org/civilsociety/displayConsultativeStatusSearch.do?method=search&sessionCheck=false.

2 Human Rights Watch, ‘Our History’, https://www.hrw.org/our-history. The third section of the Helsinki Accords emphasised the protection and promotion of rights, including freedom of movement, religion, thought and speech: Organization for Security and Co-operation in Europe (OSCE), The Final Act of the Conference on Security and Cooperation in Europe: Helsinki Accords, Declaration on Human Rights, 1 August 1975, 14 ILM 1292, http://www.osce.org/helsinki-final-act?download=true.

3 Peter Benenson, ‘The Forgotten Prisoners’, The Observer, 28 May 1961; Amnesty International, ‘Our Story’, http://amnesty.org/en/who-we-are/history.

4 For HRW, ‘publications’ refers to all items posted on its website under the ‘Ukraine’, ‘Yemen’ and ‘Israel/Palestine’ country sections dated between June 2014 and September 2016, including ‘reports’, ‘news releases’, ‘commentary’, ‘Q&A’, ‘Dispatches’, etc. For Amnesty, all items posted on the NGO's website catalogued under the sections headed ‘Ukraine’, ‘Yemen’ and ‘Israel and Occupied Palestinian Territories’ and dated between June 2014 and September 2016 were surveyed. A list of the publications is available on file with the authors.

5 Patricia Sullivan, ‘Peter Benenson Dies; English Lawyer Founded Amnesty International’, The Washington Post, 27 February 2005, http://www.washingtonpost.com/wp-dyn/articles/A56659-2005Feb26.html.

6 Neier, Aryeh, The International Human Rights Movement: A History (Princeton University Press 2012) 206–11. Had HRW limited itself to reporting solely on violations of international human rights law, it would not have had a legal foundation upon which to comment on violations committed by US-proxy paramilitaries and guerrilla groups. See also Orentlicher, Diane, ‘Bearing Witness: The Art and Science of Human Rights Fact-Finding’ (1990) 3 Harvard Human Rights Journal 83, 99.

7 Neier, ibid; Orentlicher, ibid. HRW's Executive Director, Kenneth Roth, also alluded to the NGO's choice of prioritising the monitoring of armed conflict in an interview in September 2013 on Russia Today. Discussing the possibility of US military strikes in retaliation for Assad's use of chemical weapons on Syrian civilians, he commented that he did not think dictatorships were the ‘worst possible scenario’. Rather, he stated that a situation where differing factions are controlling a country and ‘mass killing’ is occurring is the worst case. Moreover, he noted that ‘no one was calling for military intervention over Assad when he was ruling over a unified country … He was a ruthless dictator but he wasn't killing 5,000 civilians a month’. In other words, mass scale and systematic abuses of human rights of millions of people by a dictator or authoritarian regime (which may also include mass killing over a long period of time) is of lesser priority to HRW than deaths resulting from armed conflict or civil war: RT, ‘Bombing for Peace: Syria Strike Better than Nothing? (ft. Human Rights Watch CEO)’, YouTube, 8 September 2013, beginning at 21:00, https://www.youtube.com/watch?v=ooRICVYWHyQ&feature=player_embedded.

8 See, eg, HRW, ‘About Our Research’, https://www.hrw.org/about-our-research (‘All our researchers come to Human Rights Watch with a powerful commitment to human rights and an existing expertise’); HRW, ‘People’, https://www.hrw.org/about/people (referring to its staff members as ‘experts’); HRW, ‘Cluster Munitions and International Humanitarian Law: The Need for Better Compliance and Stronger Rules’, 5–16 July 2004, https://www.hrw.org/legacy/backgrounder/arms/clusters0704/clusters0704.pdf; Human Rights Watch, ‘Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia’, 23 January 2009, https://www.hrw.org/report/2009/01/23/flames/humanitarian-law-violations-and-civilian-victims-conflict-over-south (referring to HRW armaments experts); Amnesty, ‘What We Do’, https://www.amnesty.org/en/what-we-do/ (referring to researchers as ‘experts’); Amnesty, ‘Syria: Expert Analysis Shows US-Led Coalition Use of White Phosphorus May Amount to War Crime’, 16 June 2017, https://www.amnesty.org/en/latest/news/2017/06/syria-expert-analysis-shows-usled-coalition-use-of-white-phosphorus-may-amount-to-war-crime.

9 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (entered into force 1 March 1999) 2056 UNTS 211.

10 Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90.

11 Convention on Cluster Munitions (entered into force 1 August 2010) 2688 UNTS 39.

12 Arms Trade Treaty (entered into force 24 December 2014), https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVI-8&chapter=26&clang=_en.

13 See, eg, Amnesty, “What We Do: United Nations’, https://www.amnesty.org/en/what-we-do/united-nations; Herzberg, Anne, ‘NGOs and the Goldstone Report’ in Steinberg, Gerald M and Herzberg, Anne (eds), The Goldstone Report Reconsidered (2010) 69 (detailing the role of Amnesty in assisting the preparation of the Goldstone Report); Amnesty, ‘What We Do: International Justice’, https://www.amnesty.org/en/what-we-do/international-justice (‘Amnesty has helped establish a system of international justice’); HRW, ‘International Justice’, https://www.hrw.org/topic/international-justice; HRW, ‘United Nations’, https://www.hrw.org/topic/united-nations; HRW, ‘Lotte Leicht’, https://www.hrw.org/about/people/lotte-leicht (HRW's EU advocacy director based in Brussels).”

14 For example, almost every article in The New York Times on the issue of cluster munitions cites HRW, Amnesty or the Cluster Munition Coalition of NGOs rather than military or legal experts: eg, ‘Search: Cluster Munition’, The New York Times, https://query.nytimes.com/search/sitesearch/#/cluster+munition.

15 For example, debates on export licences for weaponry in the United Kingdom (UK) Parliament, the blocking of a water treatment plant in Jerusalem, and the EU's 2009 fact-finding mission regarding the war in Georgia all relied heavily on and were influenced by NGO reporting: see, eg, Steinberg, Gerald M, Herzberg, Anne and Friedman, Asher, ‘A Farewell to Arms? NGO Campaigns for Embargoes on Military Exports: The Case of the UK and Israel’ (2013) 19 Israel Affairs 468; Herzberg, Anne, ‘When International Law Blocks the Flow: The Strange Case of the Kidron Valley Sewage Plant’ (2014) 10 Regent Journal of International Law 71; Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, Vol II, September 2009, http://smr.gov.ge/Uploads/vol2_eb318dfd.pdf.

16 For example, Amnesty's former Secretary General, Irene Khan, began her career with the NGO International Commission of Jurists, worked for more than two decades with the UN High Commissioner for Refugees, became head of Amnesty, and is now is Director General for the International Development Law Organization (IDLO), a multilateral institution: IDLO, ‘Director-General’, http://www.idlo.int/about-idlo/our-people/director-general.

17 In 2016, HRW received more than USD 75 million in revenue and had more than USD 220 million in assets; the net income of Amnesty's Secretariat topped £69.9 million in 2015, while the income of the country sections is tens of millions more. HRW employs 400 staff, while for Amnesty it is several thousand: HRW, ‘About’, https://www.hrw.org/about; HRW, ‘2016 Annual Report’, https://www.hrw.org/sites/default/files/news_attachments/english_annual_report-2016.pdf; HRW, ‘2016 990’, https://www.hrw.org/sites/default/files/supporting_resources/2015-form-990.pdf (HRW paid more than USD 2 million to professional fundraisers); Amnesty, ‘Amnesty International Limited: Report and Financial Statements for the Year Ended 31 December 2015’, 31 December 2015, https://www.amnesty.or.jp/about_us/activity_accounting/all_Report_and_Accounts_2015.PDF; HRW, ‘Human Rights Watch: Nonprofit Organization Management,’ http://www.linkedin.com/company/human-rights-watch; Amnesty, ‘Who We Are’, http://www.amnesty.org/en/who-we-are/about-amnesty-international. In comparison, Buzzfeed, a major news corporation, has revenues of USD 167 million: Alex Weprin, ‘Buzzfeed Passes $100 M. in Revenue for 2014’, Politico, 25 November 2014, http://www.politico.com/media/story/2014/11/buzzfeed-passes-100-m-in-revenue-for-2014-003140. The countries of Anguilla, the Cook Islands, São Tomé and Principe, among many others, have budgets of approximately USD 100 million or less: Central Intelligence Agency, ‘World Factbook’, https://www.cia.gov/library/publications/the-world-factbook/fields/2056.html.

18 Both Amnesty and HRW employ Fenton Communications, one of the leading global PR firms: Fenton Communications, ‘Clients’, http://www.fenton.com/clients.

19 UCDP, ‘Armed Conflict by Region, 1946–2015’, 2016, http://www.pcr.uu.se/digitalAssets/595/595102_1region.pdf.

20 Richard Norton-Taylor, ‘Global Armed Conflicts Becoming More Deadly, Major Study Finds’, The Guardian, 20 May 2015, https://www.theguardian.com/world/2015/may/20/armed-conflict-deaths-increase-syria-iraq-afghanistan-yemen.

21 See, eg, Werker, Eric and Ahmed, Faisal Z, ‘What Do Nongovernmental Organizations Do?’ (2008) 22 Journal of Economic Perspectives 73; Glendon, Mary A, ‘Knowing the Universal Declaration of Human Rights’ (1998) 73 Notre Dame Law Review 1153; Rahmani, Roya, ‘Donors, Beneficiaries, or NGOs: Whose Needs Come First? A Dilemma in Afghanistan’ (2012) 22 Development in Practice 295; Fearon, James D, ‘The Rise of Emergency Relief Aid’ in Barnett, Michael and Weiss, Thomas G (eds), Humanitarianism in Question: Politics, Power, Ethics (Cornell University Press 2008) 268; Smith, Shawn, ‘Rethinking Dependency and Development between International and Indigenous Non-Governmental Organisations’ (2015) 25 Development in Practice 259.

22 See, eg, Orentlicher (n 6) 95–97, 101; Arkin, William M, Divining Victory: Airpower in the 2006 Israel-Hezbollah War (Air University Press 2007) 77.

23 Phillip Tahmindjis, ‘The Development of the Lund-London Guidelines on Human Rights Fact Finding: A Brief History’, The International Bar Association.

24 International Bar Association, ‘International Human Rights Fact-Finding Guidelines’, 1 June 2009, http://www.ibanet.org/Fact_Finding_Guidelines.aspx (Lund-London Guidelines).

25 Franck, Thomas M and Fairley, H Scott, ‘Procedural Due Process in Human Rights Fact-Finding by International Agencies’ (1980) 74 American Journal of International Law 308, 311.

26 Weissbrodt, David and McCarthy, James, ‘Fact Finding by International Nongovernmental Human Rights Organizations’ (1981) 22 Virginia Journal of International Law 1, 13.

27 Weissbrodt, David and McCarthy, James, ‘Fact Finding by Nongovernmental Organizations’ in Ramcharan, BG (ed), International Law and Fact-Finding in the Field of Human Rights (Martinus Nijhoff 1982) 173.

28 ibid.

29 van Boven, Theo, ‘Foreword’ in Rachmaran, BG (ed), International Law and Fact-Finding in the Field of Human Rights Revised and Edited Reprint (Martinus Nijhoff 2014) vii.

30 BG Ramcharan, ‘Introduction to the Original Edition’ in Ramcharan (n 27) xix–xlv.

31 ibid.

32 Lund-London Guidelines (n 24).

33 ibid. See also American Society of International Law, ‘International Law in Brief’, 12 June 2009, https://web.archive.org/web/20090715013722/http://www.asil.org/ilib090612.cfm.

34 Lund-London Guidelines (n 24).

35 Tahmindjis (n 23).

36 Blitt, Robert Charles, ‘Who Will Watch the Watchdogs? Human Rights Nongovernmental Organizations and the Case for Regulation’ (2005) 10 Buffalo Human Rights Law Review 261, 335; Conflict Research Consortium, University of Colorado, ‘International Online Training Program on Intractable Conflict’, 1998, http://www.colorado.edu/conflict/peace/problem/factfinding.htm.

37 Blitt, ibid 339.

38 HRW, ‘About Our Research’ (n 8).

39 In a May 2014 article, Amnesty's senior field researcher, Donatella Rovera, discussed some of Amnesty's fact-finding methodologies related to witness testimonies: Donatella Rovera, ‘Challenges of Monitoring, Reporting, and Fact-Finding During and After Armed Conflict’, Professionals in Humanitarian Assistance and Protection, 28 April 2014, http://phap.org/thematic-notes/2014/april/challenges-monitoring-reporting-and-fact-finding-during-and-after-armed-co.

40 Franck and Fairley (n 25) 344.

41 ibid.

42 ibid 340.

43 HRW, ‘Frequently Asked Questions’, para 4, https://www.hrw.org/frequently-asked-questions#3.

44 UN Evaluation Group, ‘External Evaluation of Amnesty International's Work on Israel/Occupied Palestinian Territories (OPT) – Gaza Conflict Project’, http://www.uneval.org/resources/images/vacancies/TORGAZAevaluationFINAL.pdf. The resulting evaluation was not publicised. The authors contacted several Amnesty officials for a copy but were refused: Correspondence between the authors and Amnesty International's Middle East and North Africa Director, Philip Luther (available on file with the authors).

45 See, eg, Polman, Linda, The Crisis Caravan (Picador 2011); Reiff, David, A Bed for the Night: Humanitarianism in Crisis (Simon & Schuster 2003). See also Benjamin Wittes, ‘Notes on the Erosion of Norms of Armed Conflict’, Lawfare Blog, 14 January 2015, https://www.lawfareblog.com/notes-erosion-norms-armed-conflict (‘The soft-law world is just not quite as horrified by Hamas as that group's behavior and the relevant IHL conventions would lead one to expect. And it's way more horrified by, say, civilian casualties in US drone strikes … The political pressures generated by the law, therefore, tend to militate in exactly the wrong direction. And that is not the fault of the terrorists. To assign blame on this point, rather, we must look to New York, to Geneva, to many European capitals, and to the fundraising strategies of human rights groups’).

46 Arkin (n 22) 77.

47 Andrés Ballesteros and others, ‘The Work of Amnesty International and Human Rights Watch: Evidence from Colombia’, University College London and Conflict Analysis Resource Center, 2007 (CERAC) 11.

48 HRW's own reporting details fewer than 50 deaths from cluster munitions in Ukraine. Cluster Munition Monitor reports 19 deaths for Ukraine in 2015: Landmine & Cluster Munition Monitor, ‘Cluster Munition Monitor 2016’, http://www.the-monitor.org/en-gb/reports/2016/cluster-munition-monitor-2016/casualties-and-victim-assistance.aspx. The number of casualties for Yemen was reported as 104 (it is not clear if this number includes injuries) in 2015: HRW, ‘Cluster Munitions: Fewer Stockpiles, but New Use’, 1 September 2016, https://www.hrw.org/news/2016/09/01/cluster-munitions-fewer-stockpiles-new-use. It should be noted that it is difficult to find comprehensive data on casualties caused by cluster munitions – perhaps because wider publication of these figures might undercut the international campaign to ban them. The UN reports more than 10,000 killed in the Yemen conflict: Mohammed Ghobari, ‘U.N. Says 10,000 Killed in Yemen War, Far More than Other Estimates’, Reuters, 30 August 2016, http://www.reuters.com/article/us-yemen-security-toll-idUSKCN11516W; Ukraine 9,578 (conservative estimate): Office of the United Nations High Commissioner for Human Rights (OHCHR), Report on the Human Rights Situation in Ukraine, 16 May–15 August 2016, http://www.ohchr.org/Documents/Countries/UA/Ukraine15thReport.pdf.

49 (n 11).

50 HRW, ‘Killer Robots’, https://www.hrw.org/topic/arms/killer-robots.

51 Neier (n 6) 210.

52 Rodley, Nigel, ‘Discussion: Emergence of New Concerns’ in Walling, Carrie Booth and Waltz, Susan (eds), Human Rights: From Practice to Policy: Proceedings from a Research Workshop, Gerald R. Ford School of Public Policy (University of Michigan 2010) 25.

53 James Ron and Howard Ramos, ‘Why Are the United States and Israel at the Top of Human Rights Hit Lists?’ Foreign Policy Magazine, 3 November 2009, http://foreignpolicy.com/2009/11/03/why-are-the-united-states-and-israel-at-the-top-of-human-rights-hit-lists.

54 ibid.

55 ibid.

56 Ron is also a consultant to HRW and a member of the NGO's Canada Committee: University of Minnesota, College of Liberal Arts, ‘Prof James Ron’, https://cla.umn.edu/about/directory/profile/jamesr; Human Rights Watch, ‘Canada Committee’, HRW, ‘Canada Committee’, http://www.hrw.org/cities/toronto/committee.

57 Ramos, Howard, Ron, James and Thoms, Oskar NT, ‘Shaping the Northern Media's Human Rights Coverage, 1986–2000’ (2007) 44 Journal of Peace Research 385.

58 ibid 398.

59 ibid 401. See also Kim, Kyungmo and Barnett, George A, ‘The Determinants of International News Flow: A Network Analysis’ (1996) 23 Communication Research 323; Bob, Clifford, The Marketing of Rebellion: Insurgents, Media, and International Activism (Cambridge University Press 2005); Andrews, Kenneth T and Caren, Neal, ‘Making the News: Movement Organizations, Media Attention, and the Public Agenda’ (2010) 75 American Sociological Review 841; Meernik, James and others, ‘The Impact of Human Rights Organizations on Naming and Shaming Campaigns’ (2012) 56 Journal of Conflict Resolution 233; Waisbord, Silvio, ‘Can NGOs Change the News?’ (2011) 5 International Journal of Communication 142; Peksen, Dursun, Peterson, Timothy M and Drury, A Cooper, ‘Media-Driven Humanitarianism? News Media Coverage of Human Rights Abuses and the Use of Economic Sanctions’ (2014) 58 International Studies Quarterly 855; Hendrix, Cullen S and Wong, Wendy H. ‘Knowing Your Audience: How the Structure of International Relations and Organizational Choices Affect Amnesty International's Advocacy’ (2014) 9 The Review of International Organizations 29; Meyer, Chistoph O, Sangar, Eric and Michaels, Eva, ‘How Do Non-Governmental Organizations Influence Media Coverage of Conflict? The Case of the Syrian Conflict, 2011–2014’ (2017) Media, War & Conflict 1.

60 Hopgood, Stephen, The End Times of Human Rights (Cornell University Press 2013) 20–21, 110–18; Habibi, Don A, ‘Human Rights and Politicized Human Rights: A Utilitarian Critique’ (2007) 6 Journal of Human Rights 3; Steinberg, Gerald M, ‘Soft Powers Play Hardball’ (2006) 12 Israel Affairs 748.

61 Boulding, Carew, ‘Dilemmas of Information and Accountability: Foreign Aid Donors and Local Development NGOs’ in Gourevitch, Peter A, Lake, David A and Stein, Janice Gross (eds), The Credibility of Transnational NGOs (Cambridge University Press 2012) 115, 117.

62 Davenport, David, ‘The New Diplomacy Threatens American Sovereignty and Values’ in Bork, Robert H (ed), A Country I Do Not Recognize: The Legal Assault on American Values (Hoover Institution Press 2005) 113, 119.

63 ibid. See also Unerman, Jeffrey and O'Dwyer, Brendan, ‘Theorising Accountability for NGO Advocacy’ (2006) 19 Accounting, Auditing & Accountability Journal 349; Gordenker, Leon and Weiss, Thomas G, ‘Devolving Responsibilities: A Framework for Analysing NGOs and Services’ (1997) 18 Third World Quarterly 443.

64 See, eg, Mark P Lagon and Ryan Kaminski, ‘Bolstering the UN Human Rights Council's Effectiveness’, Council on Foreign Relations Discussion Paper, January 2017, https://www.cfr.org/sites/default/files/pdf/2016/12/Discussion_Paper_Lagon_Kaminski_UNHRC_OR.pdf.

65 For example, as noted by a senior Amnesty official, quoted in the Ramos, Ron and Thoms study: ‘You can work all you like on Mauritania, but the press couldn't give a rat's ass’: Ramos, Ron and Thoms (n 57) 401.

66 One example involves the activities of a landowning group in Papua New Guinea, created ostensibly to advocate collectively for the local community in dealings surrounding the Porgera Joint Venture Mine, operated by Barrick. Some have alleged that the group's leadership exploits grievances for its own personal financial benefit: Arvind Ganesan, Letter to Ms Navanethem Pillay, UN High Commissioner for Human Rights, 5 April 2013, http://www.business-humanrights.org/media/documents/company_responses/hrw-ltr-to-un-high-commissioner-pillay-re-porgera-barrick-5-apr-2013.pdf. See also Global Editorial, ‘Barrick has Done Its Best to Improve Human Rights at Mine in Papua New Guinea’, The Globe and Mail, 12 February 2013, http://www.theglobeandmail.com/globe-debate/editorials/barrick-has-done-its-best-to-improve-human-rights-at-mine-in-papua-new-guinea/article8515017.

67 Franck and Fairley (n 25) 310.

68 ibid 317.

69 ibid 310.

70 ibid 309.

71 Ghobari (n 48); OHCHR (n 48). How casualties are documented and classified during armed conflict is itself highly problematic and deserves further study.

72 See, eg, Demick, Barbara, Nothing to Envy: Ordinary Lives in North Korea (Random House 2010). According to the 2014 UN Human Rights Council Commission of Inquiry on Human Rights in North Korea, ‘[t]he gravity, scale and nature of [human rights violations in North Korea] reveal a State that does not have any parallel in the contemporary world’: Report of the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea (7 February 2014), UN Doc A/HRC/25/63, para 80; Amnesty International UK, ‘North Korea’, https://www.amnesty.org.uk/issues/North-Korea (‘North Korea is in a category of its own when it comes to human rights violations’).

73 According to the UN, as of 19 August 2014 the number of dead in the Ukraine had reached 2,250, and this figure was reported as a ‘conservative estimate’: UN Office for the Coordination of Humanitarian Affairs, ‘Ukraine: Situation Report No. 8’, 22 August 2014, https://www.humanitarianresponse.info/system/files/documents/files/OCHA%20Ukraine%20Situation%20Report%2022%20August%202014_1.pdf.

74 It took HRW three days to post a response to the MH17 downing on its website: Rachel Denber, ‘Dispatches: Urgent Need for Ukraine Crash Site Access’, Human Rights Watch, 20 July 2014, https://www.hrw.org/news/2014/07/20/dispatches-urgent-need-ukraine-crash-site-access. In contrast, HRW issued a condemnation of Israel (while having only limited information regarding the attack) over the Gaza beach incident in less than 24 hours: Bill Van Esveld, ‘Dispatches: Explaining Four Dead Boys on a Gaza Beach’, Human Rights Watch, 17 July 2014, https://www.hrw.org/news/2014/07/17/dispatches-explaining-four-dead-boys-gaza-beach. Two subsequent statements were issued within days of the first: HRW, ‘Gaza: Airstrike Deaths Raise Concerns on Ground Offensive’, 22 July 2014, https://www.hrw.org/news/2014/07/22/gaza-airstrike-deaths-raise-concerns-ground-offensive; HRW, ‘Human Rights Council: Establish Fact-finding Mission in Israel/Palestine’, 23 July 2014, https://www.hrw.org/news/2014/07/23/human-rights-council-establish-fact-finding-mission-israel/palestine.

75 Amnesty, ‘Ukraine: Tragic Loss of Life Must Be Impartially Investigated’, 18 July 2014, https://www.amnesty.org/en/latest/news/2014/07/ukraine-tragic-loss-life-must-be-impartially-investigated.

76 eg, HRW, ‘Palestine: ICC Should Open Formal Probe’, 5 June 2016, https://www.hrw.org/news/2016/06/05/palestine-icc-should-open-formal-probe; Fred Abrahams, ‘Dispatches: Gaza War's Harm to Kids’, Human Rights Watch, 23 June 2015, https://www.hrw.org/news/2015/06/23/dispatches-gaza-wars-harm-kids; HRW, ‘Israel/Gaza: Heed UN Commission Recommendations’, 22 June 2015, https://www.hrw.org/news/2015/06/22/israel/gaza-heed-un-commission-recommendations; Amnesty, ‘Israel/OPT: International Criminal Court Key to Breaking Cycle of Injustice for War Crimes’, 1 August 2014, https://www.amnesty.org/en/latest/news/2014/08/israelopt-international-criminal-court-key-breaking-cycle-injustice-war-crimes; Amnesty, ‘Israel and Occupied Palestinian Territories: The International Criminal Court Must Investigate War Crimes,’ 1 August 2014, https://www.amnesty.org/en/documents/mde15/019/2014/en/; Amnesty, ‘Israel/OPT: Two Years on Still No Justice for War Crimes Victims’, 7 July 2016, https://www.amnesty.org/en/latest/news/2016/07/israel-opt-two-years-on-still-no-justice-for-war-crimes-victims; Amnesty, ‘Black Friday – Carnage in Rafah’, 1 August 2015, https://blackfriday.amnesty.org/report.php.

77 Yulia Gorbunova, ‘Dispatches: A Step Closer to Answers of Victims of MH17’, Human Rights Watch, 13 October 2015, https://www.hrw.org/news/2015/10/13/dispatches-step-closer-answers-victims-mh17. Amnesty does not appear to have issued any additional publications on MH17 apart from its original 18 July 2014 statement. The lack of follow-up by Amnesty is stranger given that an employee of Amnesty's Netherlands branch was killed in the attack.

78 Geoffrey Corn, ‘Analysis of the UN Report on the 2014 Gaza Conflict: The Distorting Effects of Flawed Foundations’, JINSA, June 2015, http://www.jinsa.org/files/AnalysisOfTheU.N.Report_ProfCorn.pdf; CERAC (n 47) 2, 22–23 (‘We also find some degree of anti-government bias’, ‘killings by guerrillas undermeasured’, and ‘distortions of the dynamics in conflict intensity’. As a result ‘[i]t is probably best to view AI and HRW primarily as government watchdogs’, and AI and HRW ‘should be more explicit about their approach’); High Level Military Group, ‘An Assessment of the 2014 Gaza Conflict’, October 2015, para 217, http://www.high-level-military-group.org/pdf/hlmg-assessment-2014-gaza-conflict.pdf; Telman, Jeremy, ‘Non-State Actors in the Middle East: A Challenge for Rationalist Legal Theory’ (2013) 46 Cornell International Law Journal 51; Alex Svetlicinii, ‘Amnesty International's Gulag Confusion’, Capital Research Center: Organization Trends, May 2006.

79 Kenneth Roth, ‘Women and Islam: A Debate with Human Rights Watch,’ New York Review of Books, 23 February 2012, http://www.nybooks.com/articles/2012/03/22/women-islam-exchange-kenneth-rothhuman-rights (response).

80 Catherine Fitzpatrick, ‘What Happened in Luganskaya Stanitsa? Human Rights Watch Tells Only a Partial Story’, Minding Russia, 6 July 2014, http://3dblogger.typepad.com/minding_russia/2014/07/what-happened-in-luganskaya-stanitsa-human-rights-watch-tells-only-a-partial-story.html (emphasis added).

81 CERAC (n 47).

82 Amnesty, ‘Amnesty International Response to Andrés Ballesteros, Jorge A Restrepo, Michael Spagat, Juan F Vargas, The Work of Amnesty International and Human Rights Watch: Evidence from Colombia’, February 2007.

83 eg, Clapham, Andrew, ‘Human Rights Obligations of Non-State Actors in Armed Conflict Situations’ (2006) 88 International Review of the Red Cross 491; Marshall, Jill, ‘Torture Committed by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals’ (2005) 5 Non-State Actors and International Law 171.

84 Kenneth Anderson, ‘Questions re: Human Rights Watch's Credibility in Lebanon Reporting’, Kenneth Anderson Laws of War Blog, 23 August 2006, http://kennethandersonlawofwar.blogspot.com/2006/08/questions-re-human-rights-watchs.html.

85 ibid.

86 Wittes (n 45).

87 Robert Bernstein, ‘Robert Bernstein's Remarks upon Receiving Dr. Bernard Heller Prize’, NGO Monitor, 2 May 2013, https://www.ngo-monitor.org/remarks_upon_receiving_dr_bernard_heller_prize.

88 Review of publications between June 2014 and September 2016; see n 4 for a description of publications reviewed.

89 Karen Yourish and others, ‘How Many People Have Been Killed in ISIS Attacks Around the World’, New York Times, 16 July 2016, http://www.nytimes.com/interactive/2016/03/25/world/map-isis-attacks-around-the-world.html?_r=0.

90 ‘Yemen Suicide Bombing in Sanaa Mosque “Kills 25”’, BBC News, 24 September 2015, http://www.bbc.com/news/world-middle-east-34344648.

91 HRW originally justified not issuing reports or running campaigns against the Palestinian Authority and Palestinian armed groups for mass terror attacks in 2001–02 by claiming that states (ie Israel) ‘should be held to higher standards’; see the transcript of an interview with Urmi Shah from HRW, broadcast in ‘Jenin: Massacring the Truth’, produced and directed by Martin Himel, Elsasah Productions, for Global Television Network Inc., July 2004: NGO Monitor, ‘Transcript of Interview with Urmi Shah from HRW’, 1 July 2014, http://www.ngo-monitor.org/transcript_of_interview_with_urmi_shah_from_hrw. However, after this claim was widely criticised on moral grounds, HRW belatedly issued a report on suicide attacks: Human Rights Watch, ‘Erased in a Moment: Suicide Bombing Attacks against Israeli Civilians’, October 2002, https://www.hrw.org/reports/2002/isrl-pa. See also Blank, Laurie, ‘Finding Facts but Missing the Law: The Goldstone Report, Gaza, and Lawfare’ (2011) 43 Case Western Reserve Journal of International Law 279.

92 Steinberg, Gerald M, ‘Post-Colonial Theory and the Ideology of Peace Studies’ (2007) 13 Israel Affairs 786.

93 In Libya, HRW's Middle East and North Africa Director, Sarah Leah Whitson, led an extensive campaign to portray Muamar Qaddafi's son, Saif al-Islam, as a human rights reformer. Relatives of torture victims also accused HRW and Amnesty of downplaying abuses to secure visa access to the country: Mohamed Eljahmi, ‘Don't Let My Brother's Death Be in Vain’, Forbes, 16 June 2009, https://www.forbes.com/2009/06/15/fathi-eljahmi-libya-opinions-contributors-human-rights.html&refURL (‘for nearly a year, both Amnesty International and Human Rights Watch hesitated to advocate publicly for Fathi's case, because they feared their case workers might lose access to Libyan visas’); NGO Monitor, ‘HRW's Sarah Leah Whitson and Libya: Marketing Qaddafi’, 27 February 2011, http://www.ngo-monitor.org/reports/hrw_s_sarah_leah_whitson_and_libya_marketing_qaddafi. In May 2010 HRW's Sarah Leah Whitson travelled to Gaza and met with Hamas Minister of Justice, Faraj al-Ghoul, and other Hamas officials. The ostensible purpose of her visit was to request permission to visit detainees in Gaza's central prison. According to Hamas, Whitson assured al-Ghoul that she was visiting Gaza ‘to listen to all parties directly so she will prepare more objective and impartial reports’.

94 Amnesty International, ‘Israel/Gaza Conflict Q&A’, 25 July 2014, https://www.amnesty.org/en/latest/news/2014/07/israelgaza-conflict-questions-and-answers (emphasis added).

95 This marked something of a shift in HRW's approach. In the 2006 Lebanon and 2008–09 Gaza Wars, the NGO denied altogether that co-locating of weaponry was taking place. For instance, in a report in August 2006 HRW claimed that ‘[i]n none of the cases of civilian deaths documented in this report is there evidence to suggest that Hezbollah forces or weapons were in or near the area that the IDF targeted during or just prior to the attack’: HRW, ‘Fatal Strikes: Israel's Indiscriminate Attacks against Civilians in Lebanon’, August 2006, https://www.hrw.org/reports/2006/lebanon0806/lebanon0806web.pdf.

96 Matthew Blake, ‘Hamas Admits It DID Use Schools and Hospitals in Gaza Strip as “Human Shields” to Launch Rocket Attacks on Israel – but Claims it was a “Mistake”’, Daily Mail UK, 12 September 2014, http://www.dailymail.co.uk/news/article-2753176/Hamas-DID-use-schools-hospitals-Gaza-Strip-human-shields-launch-rocket-attacks-Israel-admits-says-mistake.html#ixzz3OsYbxZUy. During the war, numerous media reports, including videos, of rockets launched next to hospitals, hotels, homes, schools and UN facilities were made public: ‘Reports from Foreign Correspondents in the Gaza Strip vis-à-vis the Limitations Hamas Placed on Media Coverage of the Military Aspects of the Fighting’, The Meir Amit Intelligence and Terrorism Information Center, 10 August 2014, http://www.terrorism-info.org.il/Data/articles/Art_20699/E_141_14_1634181847.pdf.

97 See also Posner, Eric and Goldsmith, Jack, The Limits of International Law (Oxford 2005) 23; Anderson (n 84).

98 eg, Chatham House, ‘Report of an Expert Meeting which Assessed Procedural Criticisms made of the UN Fact Finding Mission on the Gaza Conflict (The Goldstone Report)’, 27 November 2009 (while the report focused primarily on the Goldstone mission, it offered fact-finding standards to be applied more broadly). See also Weissbrodt and McCarthy (n 26); NGO Monitor, ‘Best Practices, Book Launch; Part 3: Francoise J. Hampson, July 2012’, YouTube, 2 July 2012, https://www.youtube.com/watch?v=OaF3RW9BMz8.

99 CERAC (n 47) 8, 12, 15.

100 ibid.

101 Cluster Munition Coalition, ‘What We Do’, http://www.stopclustermunitions.org/en-gb/about-us/what-we-do/cmc-in-action.aspx (‘the best way to reach these goals is to ensure the universal adherence to, and implementation of the 2008 Convention on Cluster Munitions’). HRW is a founding member of the coalition: HRW, ‘Cluster Munitions’, https://www.hrw.org/topic/arms/cluster-munitions.

102 See text at nn 48–50.

103 See reports cited at n 48.

104 While, of course, HRW is free to advocate specific policies, across its publications it should use consistent language, which does not confuse or mislead its readership about the applicable law.

105 HRW, ‘Ukraine: Rising Civilian Toll in Luhansk’, 1 September 2014, https://www.hrw.org/news/2014/09/01/ukraine-rising-civilian-toll-luhansk; HRW, ‘Ukraine: More Civilians Killed in Cluster Munition Attacks’, 19 March 2015, https://www.hrw.org/news/2015/03/19/ukraine-more-civilians-killed-cluster-munition-attacks.

106 HRW, ‘Dispatches: More Cluster Munition Use in Ukraine’, 4 February 2015, https://www.hrw.org/news/2015/02/04/dispatches-more-cluster-munition-use-ukraine; Mark Hiznay, ‘Dispatches: More Cluster Munition Use in Ukraine’, Human Rights Watch, 4 February 2015, https://www.hrw.org/news/2015/02/04/dispatches-more-cluster-munition-use-ukraine.

107 HRW, ‘Q&A on the Conflict in Yemen and International Law’, 6 April 2015, https://www.hrw.org/news/2015/04/06/q-conflict-yemen-and-international-law (Q&A Yemen).

108 HRW, ‘Yemen: Cluster Munitions Wounding Civilians’, 14 February 2016, https://www.hrw.org/news/2016/02/14/yemen-cluster-munitions-wounding-civilians; HRW, ‘Targeting Saada’, 30 June 2015, https://www.hrw.org/report/2015/06/30/targeting-saada/unlawful-coalition-airstrikes-saada-city-yemen; Q&A Yemen, ibid.

109 HRW, ‘Yemen: Cluster Munition Rockets Kill, Injure Dozens’, 26 August 2015, https://www.hrw.org/news/2015/08/26/yemen-cluster-munition-rockets-kill-injure-dozens.

110 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I), art 52.

111 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) para 2020.

112 ibid para 2022.

113 Additional Protocol I (n 110) art 51(5)(b).

114 See, eg, Michael Schmitt, ‘The Relationship between Context and Proportionality: A Reply to Cohen and Shany’, Just Security, 11 May 2015, https://www.justsecurity.org/22948/response-cohen-shany; Wolff Heintschel von Heinegg, ‘Proportionality and Collateral Damage’, Max Planck Encyclopedia of Public International Law, October 2015, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e2166; Janina Dill, ‘Applying the Principle of Proportionality in Combat Operations’, Oxford Institute for Ethics, Law, and Armed Conflict, December 2010, http://www.elac.ox.ac.uk/downloads/proportionality_policybrief_%20dec_2010.pdf.

115 eg, Blank, Laurie, ‘The Application of IHL in the Goldstone Report: A Critical Commentary’ (2009) 12 Yearbook of International Humanitarian Law 347, 371–77.

116 eg, Amnesty, ‘Families under the Rubble: Israeli Attacks on Inhabited Homes’, 5 November 2014, https://www.amnesty.org/en/documents/MDE15/032/2014/en; Amnesty, ‘At Any Cost: The Civilian Catastrophe in West Mosul, Iraq’, 11 July 2017, https://www.amnesty.org/en/documents/mde14/6610/2017/en; HRW, ‘What Military Target Was in My Brother's House: Unlawful Coalition Airstrikes in Yemen’, 26 November 2015, https://www.hrw.org/report/2015/11/26/what-military-target-was-my-brothers-house/unlawful-coalition-airstrikes-yemen. See also Charles J Dunlap Jr, ‘Flawed or Factual? Which Is Amnesty International's Report about Mosul?’, Lawfire, 13 July 2017, https://sites.duke.edu/lawfire/2017/07/13/flawed-or-factual-which-is-amnesty-internationals-report-about-mosul.

117 Corn (n 78).

118 Laurie R Blank, ‘Asymmetries and Proportionalities’, The Hill, 29 July 2014, http://thehill.com/blogs/pundits-blog/international/213546-asymmetries-and-proportionalities. See also General Charles Wald and others, ‘2014 Gaza War Assessment: The New Face of Conflict’, Jewish Institute for National Security Affairs, March 2015, 46 (noting the tendency of NGOs and other commentators to present civilian casualties as ‘inherently unlawful. Such distortions are further enabled by the almost instinctive, but legally invalid, tendency to judge military actions based on effects of combat operations’).

119 Luis Moreno-Ocampo, Chief Prosecutor of the ICC, ‘Letter to Senders regarding Iraq’, 9 February 2006, http://www.icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77-4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf.

120 See Anderson (n 84); Wittes (n 45); see, eg, HRW (n 116) (‘Human Rights Watch found either no evident military target or that the attack failed to distinguish civilians from military objectives’); Fred Abrahams, ‘In Gaza, Another Death from School Attacks’, Human Rights Watch, 18 February 2015, https://www.hrw.org/news/2015/02/18/dispatches-gaza-another-death-school-attacks (‘The schools had all been marked with UN flags. The Israeli military had known their coordinates. And the UN had repeatedly warned that they were housing civilians. But Israeli forces fired nevertheless’); Amnesty, ‘Yemen: Airstrike and Weapon Analysis Shows Saudi Arabia-led Forces Killed Scores of Civilians’, 2 July 2015, https://www.amnesty.org/en/latest/news/2015/07/yemen-airstrike-analysis-shows-saudi-arabia-killed-scores-of-civilians (‘Even if the intended target had in fact been an arms cache this would not justify such a deadly attack on homes full of civilians without prior warning. Those planning the airstrike must have known it was likely to result in high civilian casualties and failed to take the necessary steps under international humanitarian law’).

121 See reports mentioned in nn 116 and 120 as representative examples. This pattern was apparent in almost every publication reviewed by the authors.

122 eg, Merriam, Major John and Schmitt, Michael, ‘Israeli Targeting: A Legal Appraisal’ (2015) 68 Naval War College Review 15; Vivian Camphuijsen, ‘“Effective and Advance Warning”: A Legal Assessment of the Conduct of Roof Knocking in Gaza’, University of Amsterdam, May 2015; William Saletan, ‘Israel's Unprecedented Steps to Avoid Civilian Casualties’, National Post, 16 July 2014, http://nationalpost.com/opinion/william-saletan-israels-unprecedented-steps-to-avoid-civilian-casualties; Willy Stern, ‘Attorneys at War’, Weekly Standard, 15 June 2015, http://www.weeklystandard.com/attorneys-at-war/article/964911; Reuters, ‘Dempsey: Israel Went to “Extraordinary Length” to Avoid Civilian Casualties in Gaza’, Haaretz, 7 Nov 2014, https://www.haaretz.com/israel-news/1.625194.

123 The term ‘selection bias’ refers to research in which the cases that are examined or the database that is used are chosen, whether deliberately or not, in a selective manner that results in a systematic bias in the resulting analysis and conclusions.

124 High Level Military Group (n 78) 23; Wald and others (n 118) 44; Corn (n 78); Merriam and Schmitt (n 122) 16, 22.

125 The few occasions on which such cases are mentioned are only to impugn other cases – that in case X the IDF diverted an attack, so why didn't it do so in case Y? No detailed assessment is offered as to why the two cases would be analogous or whether there was the even the capability to carry out the attack in the way the NGO suggests. Moreover, there is no legal requirement for a belligerent to employ the same methods in every operation or targeting decision.

126 Remarks of Colonel Richard Kemp, UN Human Rights Council 29th Session, Geneva, 29 June 2015, available at: https://www.unwatch.org/un-gazareport-incentivizes-terror-military-experts-warn.

127 Arkin (n 22) xxi; Fitzpatrick (n 80).

128 Amnesty, ‘The Gaza Platform’, http://gazaplatform.amnesty.org/#2309.

129 In a 2017 publication acknowledging the many methodological problems it and Amnesty had in reporting on the 2014 Gaza War (query why neither of these NGOs disclosed these fundamental problems in earlier publications), HRW noted that rather than offering its own independent assessments, Palestinian NGOs in Gaza ‘rely on the engineering unit of the Palestinian police [aka Hamas] to analyze shrapnel and other remains in order to determine which weapons were used and how’: HRW, ‘Unwilling or Unable: Israeli Restrictions on Access to and from Gaza for Human Rights Workers’, 2 April 2017, https://www.hrw.org/report/2017/04/02/unwilling-or-unable/israeli-restrictions-access-and-gaza-human-rights-workers. In the same report, Salah Hijazi, Amnesty's researcher for Gaza, noted that the biggest problem he had with Gaza-based NGOs was ‘the lack of military and medical experts who could examine evidence first-hand’. Again, this calls into question Amnesty's claim that its Gaza Platform (ibid) was providing ‘first hand’ information.

130 Arkin (n 22) 76.

131 Arkin offers the following examples, which are mirrored in claims issued by Amnesty and HRW in Gaza: ‘There is no evidence that Israel intentionally attacked any proscribed medical facilities, no real proof that it “targeted” ambulances (and certainly not because they were ambulances engaged in protected activity), no evidence that it targeted mosques or other religious structures, and there were no intentional attacks on schools. The Qreitem “Old Lighthouse” in Beirut was attacked because it housed radar and observation posts used to target Israeli ships. Grain silos were hit incidental to attacking a naval base exclusively used by Hezbollah’: ibid 76–77.

132 Richard Goldstone, ‘Reconsidering the Goldstone Report on Israel and War Crimes’, The Washington Post, 1 April 2011, https://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-war-crimes/2011/04/01/AFg111JC_story.html?utm_term=.6c8968b88e3b.

133 Stuart Rabinowitz, ‘Human Rights Watch Owes Israel an Apology over Gaza War Crimes Charges’, The Daily Beast, 4 November 2011, https://www.thedailybeast.com/human-rights-watch-owes-israel-an-apology-on-gaza-war-crimes-charges; Kenneth Roth, ‘Gaza: The Stain Remains on Israel's War Record’, The Guardian, 5 April 2011, https://www.theguardian.com/commentisfree/2011/apr/05/gaza-stain-remains-israel-war-record?INTCMP=SRCH; Amnesty, ‘Israel's Campaign to Avoid Accountability for War Crimes Must Be Rejected’, https://www.amnestyusa.org/israels-campaign-to-avoid-accountability-for-war-crimes-must-be-rejected.

134 Rovera (n 39).

135 ibid.

136 ibid.

137 Corn, in assessing the UN Human Rights Council's Commission of Inquiry on the Gaza War (largely based on NGO reports), notes that the failure to consider publicly available military expert reports on IDF conduct is ‘inexplicable’ and that groups seeking to assess IHL compliance and produce credible reports should have a ‘voracious appetite for this type of expert information’: Corn (n 78) 8.

138 See, eg, ICRC, ‘IHL Database: Customary IHL’, August 2010, https://ihl-databases.icrc.org/customary-ihl/eng/docs/home (includes many case studies and excerpts from military manuals providing comparative examples of practice); Turkel Commission, ‘Israel's Mechanisms for Examining and Investigating Complaints and Claims of the Violations of the Laws of Armed Conflict According to International Law’, February 2013, http://www.turkel-committee.gov.il/files/newDoc3/The%20Turkel%20Report%20for%20website.pdf.

139 See, eg, HRW, ‘Why They Died: Civilian Casualties in Lebanon during the 2006 War’, September 2007, https://www.hrw.org/reports/2007/lebanon0907; CERAC (n 47).

140 The standard for HRW and Amnesty often appears to be simply whether a witness claims there was no combatant activity at the time of the strike.

141 Israel Ministry of Foreign Affairs, ‘Operation Protective Edge: Investigation of Exceptional Incidents – Update 3’, 22 March 2015, http://mfa.gov.il/MFA/ForeignPolicy/IsraelGaza2014/Pages/Operation-Protective-Edge-Investigation-of-exceptional-incidents-Update-3.aspx.

142 Amnesty, ‘Families under the Rubble’ (n 116) 8.

143 ibid 9.

144 ibid 36.

145 ibid.

146 ibid. These allegations and conclusions also reveal a profound lack of military expertise by the NGO, to be discussed below. For instance, how does Amnesty know that ‘targets could have been targeted at a different time or a different manner’?

147 It would be interesting to examine Amnesty's process for selecting those conflicts for which these interactive reports are produced.

148 Amnesty, ‘“Black Friday”: Carnage in Rafah – Cases’, https://blackfriday.amnesty.org/cases.php.

149 ibid.

150 ibid.

151 B'Tselem, ‘About B'Tselem’, 11 November 2017, http://www.btselem.org/about_btselem; Carolina Landsman, ‘Israeli Anti-Occupation Group Refuses To Be the Army's “Useful Idiot”’, Ha'aretz, 11 February 2017, https://www.haaretz.com/israel-news/.premium-1.770856.

152 B'Tselem, ‘50 Days: More than 500 Children’, http://www.btselem.org/2014_gaza_conflict/en. Note also that B'Tselem claims that the men were targeted by a ‘missile fired from an aircraft’, while Amnesty claimed it was a drone.

153 Anderson (n 84).

154 Schmitt, Michael N, ‘Investigating Violations of International Law in Armed Conflict’ (2011) 2 Harvard National Security Journal 31, 84; Corn (n 78) 12–14.

155 For example, in its reporting on the Sarin gas attacks in Syria, HRW relied on an ‘arms expert’ and a blogger, neither of whom appear to have operational military experience: HRW, ‘Attacks on Ghouta’, 10 September 2013, https://www.hrw.org/report/2013/09/10/attacks-ghouta/analysis-alleged-use-chemical-weapons-syria. In a December 2013 article in The New York Times, however, it discussed how HRW's assessments of the strikes significantly overestimated the range of Syrian rockets because the NGO merely repeated published specifications for the weapons at issue and failed to take into account the impacts of weight and drag (something a military expert would have known to apply): CJ Chivers, ‘New Study Refines View of Sarin Attack in Syria’, The New York Times, 28 December 2013, http://www.nytimes.com/2013/12/29/world/middleeast/new-study-refines-view-of-sarin-attack-in-syria.html.

156 Talk to Al Jazeera, ‘Salil Shetty: ‘Speaking Truth to Power’, Al Jazeera, 10 February 2014, http://www.aljazeera.com/programmes/talktojazeera/2014/02/salil-shetty-speaking-truth-power-201427102725815233.html.

157 Amnesty, ‘Families under the Rubble’ (n 116) 7; Amnesty, ‘Nothing is Immune: Israel's Destruction of Landmark Buildings in Gaza,’ 9 December 2014, 7, https://www.amnesty.org/en/documents/mde15/0029/2014/en.

158 In the April 2017 HRW report, ‘Unwilling or Unable’ (n 129), an Amnesty official shares that the NGO was conducting its Gaza research remotely and had no experts who collected or examined the information first hand.

159 Amnesty, ‘Families under the Rubble’ (n 116) 10.

160 ibid 17.

161 ibid 20.

162 Robert Bernstein, ‘Human Rights in the Middle East’, The Shirley and Leonard Goldstein Lecture on Human Rights, University of Nebraska at Omaha, 10 November 2010, http://www.ngo-monitor.org/nm/wp-content/uploads/2010/11/Goldstein_nebraska_speech_2010.pdf.

163 See n 155 and accompanying text.

164 Ed Pilkington, ‘Human Rights Watch Investigator Suspended over Nazi Memorabilia’, The Guardian, 15 September 2009, https://www.theguardian.com/world/2009/sep/15/human-rights-watch-nazi-israel; Marc Garlasco, ‘The Pentagon on Sept. 11: One Survivor's Account’, Fresh Air, 22 May 2008, http://www.npr.org/templates/story/story.php?storyId=90716538.

165 HRW, ‘Rain of Fire: Israel's Unlawful Use of White Phosphorus in Gaza’, 25 March 2009, https://www.hrw.org/report/2009/03/25/rain-fire/israels-unlawful-use-white-phosphorus-gaza.

166 United States Army, ‘Smoke and Incendiaries’, United States Army Field Manual 3–6, November 1986, http://www.globalsecurity.org/wmd/library/policy/army/fm/3-6/3-6ch2.htm#s_21. White phosphorus takes advantage of water vapour found in the air to produce smoke. It therefore requires less material in each round.

167 UN Human Rights Council Fact Finding Mission on the Gaza Conflict, Public Hearings, Geneva, Afternoon Session of 7/7/2009, Unofficial Transcript, 7 July 2009 (copy on file with the authors).

168 Author discussions with Colonel Richard Kemp, commander of British forces in Afghanistan.

169 In other words, this type of reporting can result in cognitive biases, such as the focusing effect, where provision of hyper-detailed information on one aspect of a situation can lead the reader to import credibility to other aspects without their being independently verified.

170 HRW (n 129).

171 As mentioned, in many cases Amnesty and HRW do not have researchers on the ground, and this material is collected by third parties and shared with the NGOs remotely. However, the lack of expertise and methodological issues are present regardless of access.

172 Arkin (n 22) xviii.

173 Rothenberg, Daniel, ‘The Complex Truth of Testimony’ in Alston, Philip and Knuckey, Sarah (eds), The Transformation of Human Rights Fact Finding (Oxford University Press 2016) 191, 196201 (discussing ‘evidentiary truth’ against ‘experiential truth’).

174 Combs, Nancy A, Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) passim; Wald, Patricia M, ‘Dealing with Witnesses in War Crimes Trials: Lessons from the Yugoslav Tribunal’ (2002) 5 Yale Human Rights and Development Journal 217, 236; Eric Meldrum, ‘Time for a Change? The Traditional Human Rights NGO Fact Finding Methodology in relation to National and International Prosecutions of Gross Human Right Violations’, Oxford Brookes University, 31 August 2009, 30–31, 40–41, http://architecture.brookes.ac.uk/research/cendep/dissertations/EricMeldrum.pdf.

175 Meldrum, ibid 40.

176 See, eg, sources at n 174.

177 Rovera (n 39).

178 Pilkington (n 164).

179 As discussed, Goldstone himself denounced the fact-finding failures in compiling the report that bears his name: Goldstone (n 132). See also Herzberg (n 15) (the uncritical adoption by the Dutch government of NGO IHL claims led to the cancelling of a contract to construct a waste water treatment plant for Palestinians).

180 Wittes (n 45).

181 ibid.

182 ibid.

183 Bernstein (n 162) 9.

184 Lund-London Guidelines (n 24). Interview with Alan Stephens (initiator of the Guidelines project).

185 For example, as discussed, Amnesty still relies primarily on witness accounts, despite the head of Amnesty's field investigations acknowledging the limits of their reliability. Both Amnesty and HRW continue to utilise researchers and partner with organisations with the perception of bias: see, eg, Ben Birnbaum, ‘Minority Report’, New Republic, 27 April 2010, https://newrepublic.com/article/74543/minority-report-2; ‘A Reputation at Risk’, The Economist, 5 March 2015, https://www.economist.com/news/britain/21645806-weightiest-human-rights-outfit-has-waded-moral-quagmire-reputation-risk.

186 eg, UNGA Res 48/134 (20 December 1993) (The Paris Principles), UN Doc A/RES/48/134  (suggesting standards for national human rights institutions); Thomas M Franck, ‘The Belgrade Minimal Rules of Procedure for International Human Rights Fact-Finding Missions’, 59th Conference of the International Law Association, Belgrade, 17–23 August 1980; OHCHR, Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice, 2015, UN Doc HR/PUB/14/7; Harvard University Program on Humanitarian Policy and Conflict Research, Advanced Practitioner's Handbook on Commissions of Inquiry, March 2015.

187 Lund-London Guidelines (n 24) para 22.

188 ibid. See also the various proposed guidelines referenced in n 186.

189 For example, on 29 July 2006 HRW issued a press release claiming that Israel had killed 54 civilians in a strike on a residential building in Qana (Lebanon), referring to the attack as ‘indiscriminate’ and a ‘war crime’, and accusing the IDF of establishing a ‘free fire zone’: HRW, ‘Israel/Lebanon: Israel Responsible for Qana Attack’, 29 July 2006, https://www.hrw.org/news/2006/07/29/israel/lebanon-israel-responsible-qana-attack (it appears that HRW incorrectly dated its release 29 July 8pm EDT, because the publication discusses events that occurred after that time on 30 July EDT). The actual figure, as reported on the day of the attack by the Lebanese Red Cross was 28 casualties (whether they were civilian or combatant was unknown at the time): ICRC, ‘Press Release’, 30 July 2006, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/lebanon-news-300706. According to a study by Kalb and Saivetz of Harvard University, ‘[m]ost reporters used the higher of the two [Qana] estimates, some describing the scene as a massacre. It made for more sensational copy’: Marvin Kalb and Carol Saivetz, ‘The Israeli-Hezbollah War of 2006: The Media as a Weapon in Asymmetrical Conflict’, Shorenstein Center on the Press, Politics and Public Policy, Kennedy School of Government, Harvard University, Research Paper Series, February 2007, 9, https://www.brookings.edu/wp-content/uploads/2012/04/2007islamforum_israel-hezb-war.pdf. HRW issued a subsequent press release on 1 August noting the correct figure of 28, but the NGO never removed the erroneous 29 July release or posted a correction/update on the false report: HRW, ‘Israel/Lebanon: Qana Death Toll at 28’, 1 August 2006, https://www.hrw.org/news/2006/08/01/israel/lebanon-qana-death-toll-28.

190 Additional Protocol I (n 110) art 90.

191 International Humanitarian Fact-Finding Commission, ‘The IHFFC in a Few Words’, http://www.ihffc.org/index.asp?page=aboutus_general.

192 Cristina Azzarello and Matthieu Niederhauser, ‘The Independent Humanitarian Fact-Finding Commission: Has the “Sleeping Beauty” Awoken?’, Humanitarian Law & Policy, 9 January 2018, http://blogs.icrc.org/law-and-policy/2018/01/09/the-independent-humanitarian-fact-finding-commission-has-the-sleeping-beauty-awoken.

193 Discussions of human rights fact-finding are often dominated by a narrow group of advocates rather than involving other stakeholders such as the military, government officials and diverse segments of civil society.

The authors would like to thank Naftali Balanson, Ariella Esterson and Becca Wertman for their research and editing assistance.

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Israel Law Review
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