Precisely Wrong: War Crimes Accusations against the IDF

Absolutely Wrong:

Analysis of HRW report, “Precisely Wrong: Gaza Civilians Killed by Israeli Drone-Launched Missiles,” 30 June 2009

NGO Monitor
August 06, 2009

In this report, and accompanying press releases and conference, interviews, etc., HRW accuses the IDF of using drones to launch precise weapons during the Gaza operation, leading to wrongful civilian deaths. The entire publication is based on allegations from only 6 ambiguous incidents.

The term “war crimes” is used 7 times, and the alleged drone attacks are termed “unlawful”. The case is entirely speculative, but the conclusions are stated with absolute assurance, as if the evidence was totally clear.

Instead of credible evidence, HRW emphasizes technical and legal claims that are unfounded or irrelevant, but present the facade of expertise. These include references to satellite imaging, precise GPS coordinates, weapons specifications, Geneva conventions, etc., none of which offset the complete absence of verifiable evidence.

Robert Hewson, editor of Jane’s Air-Launched Weapons, stated “Human Rights Watch makes a lot of claims and assumptions about weapons and drones, all of which is still fairly speculative, because we have so little evidence.” (Dan Williams, “Human Rights Watch accuses Israel over Gaza drones,” June 30, 2009)

On HRW’s “evidence” quoting Palestinian claims to have seen and heard the missiles, a retired British colonel and Commander of British forces in Afghanistan “questioned whether such distinctions could be made, not least as the Spike’s range is 8 km (5 miles) …In a battlefield, in an urban environment, with all the other noises, it's certainly more than likely you would not hear something five miles away.” (Reuters, June 30)
Additional “evidence” and references are from unverifiable Palestinian “testimony,” reports from journalists (such as an email from the Norwegian Broadcasting Corporation quoting a Jane’s Defence Weekly staffer), and from other NGO officials.

On the legal issue of military necessity, the report takes at face value the Palestinian claims of seeing no active Hamas fighters in the area of the alleged attacks. The Israeli government’s report on the Gaza combat provides details that refute this speculation.
HRW asserts that drone operators in the midst of the conflict should have consulted with military lawyers “to help determine whether targets are legitimate.” This suggests that the authors have no significant battlefield experience in which split-second decisions must be made, or are simply inventing claims.

HRW accuses the IDF of using drones to launch precise weapons during the Gaza operation, leading to civilian deaths in the absence of military necessity. “The analysis is based on 6 case studies involving an alleged 29 civilian deaths.” HRW claims that these deaths should have been avoided, and that IDF drone operators failed to act accordingly.

The term “war crimes” is used 7 times, and the alleged drone attacks are termed “unlawful”. The case is entirely speculative, but the conclusions are stated with absolute assurance, as if the evidence was totally clear. [“During the recent fighting in Gaza from December 27, 2008, to January 18, 2009, the Israel Defense Forces (IDF) killed dozens of Palestinian civilians with one of the most precise weapons in its arsenal: missiles launched from an unmanned combat aerial vehicle (UCAV)… (p. 3)… Individuals who have committed violations ……are responsible for war crimes. …Military or civilian personnel found responsible for committing or ordering unlawful drone attacks should be disciplined or prosecuted as appropriate.” p.8].

Instead of credible evidence, this report emphasizes numerous technical and legal claims that are unfounded or irrelevant to the case, but present the facade of expertise. These include references to satellite imaging, detailed maps, precise GPS coordinates, weapons specifications, Geneva conventions, etc., none of which offset the complete absence of verifiable evidence. Additional “evidence” and references are from Palestinian “testimony”, journalists, and other NGO officials.

The lack of credibility is clear regarding each of the following issues:

(1) The identification of the weapons involved

The report hinges on the allegation that the IDF used drones to deliver Spike missiles in these 6 cases and that “Israel’s drone-launched missiles are incredibly precise.” (p. 18.) HRW states that the IDF used two types of “drones armed with the Spike, though it may have also used other missiles”, the evidence is largely non-existent. This statement cites an email from the Norwegian Broadcasting Corporation quoting a Jane’s Defence Weekly staffer, April 27, 2009. (p. 18, footnote 14.)

To be credible, the report would need to demonstrate that: a) Spike missiles were indeed used in these attacks; and that b) they were launched from drones. However, the report fails on both counts, and the evidence is based on a combination of fragments allegedly found at the scenes, and claims by Palestinians related to weapons identification.

a) Regarding the warheads, this claim rests on the assumption that the fragments found by HRW were actually from Spike missiles, that they were recovered from missiles used in this conflict, rather than earlier engagements in Gaza, and that they were found in situ, rather than having been collected elsewhere by Palestinians. None of these claims can be proven – all may be incorrect.

b) If all of the conditions in a) are assumed to be accurate, the Spike missiles involved may have been launched from platforms other than drones (helicopters, ground forces, or ships). In this case, the foundation of the report and the claims that follow regarding improper IDF actions and “war crimes” is false.

In this regard, Robert Hewson, editor of Jane’s Air-Launched Weapons, stated "Human Rights Watch makes a lot of claims and assumptions about weapons and drones, all of which is still fairly speculative, because we have so little evidence". (Dan Williams, “Human Rights Watch accuses Israel over Gaza drones,” June 30, 2009) Commenting on the HRW evidence based on what Palestinians claimed to have seen and heard, retired British army colonel Richard Kemp, a veteran of Iraq and Commander of British forces in Afghanistan, “questioned whether such distinctions could be made, not least as the Spike’s range is 8 km (5 miles) -- enough to put helicopters or naval boats out of earshot. In a battlefield, in an urban environment, with all the other noises, it's certainly more than likely you would not hear something five miles away." (Reuters, June 30)

(2) Visual capabilities, precision and time

As “evidence” that the IDF should have been able to prevent civilian deaths, HRW quotes an interview (p. 11) with an Israeli drone operator in the Israeli online military journal Shavuz. The interview discusses identification capabilities regarding a static target (“We identified a terrorist that looked like an Israeli soldier. Our camera enabled us to see him very clearly. He was wearing a green parka jacket and he was walking with a huge radio that looked just like an army radio. ……We saw him leaving an explosive device at a distance of 100 meters from the [Israeli] forces along with a dummy.”) In contrast, the HRW report on Gaza deals with rapidly moving targets in a battle zone, which is completely different. The attempt to transfer static capabilities to a dynamic context demonstrates the professional incompetence or the deliberate distortions of the authors of the HRW report.

Using the term “incredibly precise”, HRW claims: “With these visual capabilities, drone operators should have been able to tell the difference between fighters and others directly participating in hostilities, who are legitimate targets, and civilians, who are immune from attack, and to hold fire if that determination could not be made.” (p. 18.) But HRW does not quantify or indicate the criteria used for this assertion, nor do the authors provide sources.

On page 5, the report asserts that these visual capabilities enable operators to consult with military lawyers “to help determine whether targets are legitimate.” This suggests that the authors have no real battlefield experience in which split-second decisions must be made, or are simply inventing claims. HRW also suggests that the slow speed and long flight time of drones are also factors in precise target decision making. Again, the assertion is very general and entirely subjective.

Indeed, the uncertainty and speculative nature of HRWs claims is reflected in the questions that they sent to the IDF. (p. 42.) If HRW knew the answers, why ask the questions, other than to make the claim that the IDF did not provide classified information to a hostile organization.

(3) Military necessity (location of drone incidents “kilometers” from fighting)
For example, regarding a case study in Gaza city, HRW claims: “On January 4, 2009…an IDF drone launched a missile at two boys playing on the rooftop of a two-story home…According to residents, the site was at least five kilometers from any fighting at the time between the IDF and Palestinian armed groups. IDF statements and media reports also report no fighting in that area at that time; Israeli forces did not enter central Gaza City until later in the ground offensive. Because the house is surrounded by taller buildings in the center of Gaza City, it is a highly unlikely site for firing rockets, and it would be a poor location for artillery spotting or reconnaissance.” (p. 27.)

Each claim in the above paragraph is speculative or based on unverifiable testimony from Palestinians who are not likely to have known whether there were legitimate military targets in the area. These could have included command and control centers, weapons’ storage sites, and other Hamas facilities. In addition, Israeli military operations included efforts to locate and free kidnapped soldier Gilad Shalit (who is not mentioned in this report, despite the obvious centrality to the conflict and all military engagements).
HRW’s reliance on “eyewitness” testimony on the question of legitimate military targets in the area of an alleged attack is also reflected in the other case studies. In the “Al-Habbash family house” case, in which two girls were allegedly killed, HRW presents the following testimony:

“‘There were no Israelis in the area; it was the second day of ground fighting,’ … ‘And if there had been fighters nearby we would have left. It was a normal busy day, and if there had been fighting the children would not have been playing on the roof.’,,,” (p. 29.)
Beyond the unverifiable nature of such testimony (see Section 5 below), particularly regarding the presence of Hamas “fighters”, HRW’s reliance on this evidence reflects two highly speculative assumptions:

(1) that the presence or absence of visible Israeli forces in an area is a central criteria;

(2) that there were no legitimate targets (Hamas fighters, weapons, communications assets, etc.) in the area, visible or not visible.

In a third case (“Gaza Technical College”), HRW again propagates the misleading concept that there were no legitimate targets unless locals, UN staff, journalists or human rights activists (unnamed) claim to have observed “active” local fighters or fighting:

“According to nine witnesses interviewed by Human Rights Watch, including three international UN staff, no Palestinian fighters were active on the street or in the immediate area just prior to or at the time of the attack. Fighters from Hamas and the other Palestinian factions were rarely seen in the Rimal neighborhood where the attack took place, witnesses as well as Palestinian journalists and human rights activists based in Gaza said.” (p.20)

HRW’s report here suggests, ironically, that there were in fact Hamas fighters in the area: they just weren’t “active on the street or in the immediate area just prior to or at the time of the attack.” Again, HRW’s speculation is based on incorrect assumptions and unverifiable testimony of locals and others.

(4) Oxygen tanks or Grad rockets – immoral act or understandable error in asymmetric warfare?

On December 29, 2008, the IDF attacked a truck which appeared to be carrying rockets, but later acknowledged that an error had been made.

Although HRW includes this as one of its 6 “drone” incidents, and a potential war crime, the report relies on the same highly problematic evidence as in other cases. In order to cast doubt on the IDF’s report that four Hamas operatives were killed, HRW refers to a list of “martyrs” provided in a Hamas website. (p. 27), from which the names of alleged casualties in this incident are absent. On the use of oxygen tanks for rocket manufacture and related evidence presented by the IDF, HRW makes the clearly illogical argument that “dual use” objects in his context “are presumed to be civilian”.

HRW also rejects IDF claims that the oxygen tanks appeared to be Grad rockets, pointing out difference in length (2.87 meters vs. 1.62 meters). “The Russian-designed Grad rocket is a known weapon in the Hamas arsenal, and consequently recognizable to IDF personnel. As such, given the visual evidence, the drone operator should have considered the likelihood that these were not Grad rockets. In addition, according to the IDF video of the attack, the truck was under surveillance for more than two minutes, and possibly longer because the truck was not moving, so the operator should have had time to consult with superior officers on whether the truck could be considered a legitimate target.” (pp. 25-26.) HRW presents no information on ability to instantly distinguish between the different lengths involved. The authors also makes assertions about what IDF personnel should have considered and with whom they should have consulted in the context of an ongoing war, but have no independent knowledge of the decision making process.

The MFA report “IDF Operation in Gaza” discusses this incident in great detail (p. 144).

(5) Reliance on Palestinian testimony

A large portion of the case study material is dedicated to the testimony of Palestinians interviewed by HRW --of the 34 footnotes in the case studies section, 13 are citations to HRW interviews with Palestinian witnesses, including family members of the deceased, one is to an UNRWA security guard, name withheld on request, and many others cite journalists and NGOs that quote Palestinian claims.

The named interview subjects are:
Adib Munthir al-Rayyis, Gaza City
Ibrahim Nehru al-Rayyis, Gaza City
Nehru al-Rayyis, Gaza City
Muhammad Sa’di Ghabayen, Gaza City
Basil Nabil Ghabayen, Gaza City
Ashraf Mashhrawi, Gaza City
Ashraf ‘Issawi, Gaza City
Mahmud al-Habbash, Gaza City
Muhammad al-Habbash, Gaza City
Nahla ‘Allaw, Gaza City
Muhammad ‘Allaw, Gaza City
Hamada al-Sultan, Beit Lahiya
Mahmud al-Sultan, Beit Lahiya

(6) Moral/legal issue: should the IDF be condemned for using precise technology intended to reduce civilian casualties in the context of asymmetric warfare?

This report purports to deal with the consequences of the IDF’s use of technology that HRW admits enhances accuracy and minimizes collateral damage. HRW discounts the relevance of the fact that the urban battle zone was chosen by Hamas, when it based itself within the civilian population, and Israel actions are entirely responsive. HRW also ignores the irony in the juxtaposition of the use by Hamas of indiscriminate rockets aimed at civilian areas, in contrast to the IDF’s precision weapons designed to avoid such indiscriminate attacks.

As a matter of moral reasoning and logic, there is also no basis for holding one side to a higher standard precisely because it sought and used technology meant to prevent harm to civilians, in a conflict it did not initiate and sought to avoid.

In the legal dimension, HRW wants the IDF to be subject to a much stricter standard of liability for harm to civilians in comparison to Hamas (or Hezbollah in the 2006 Lebanon war) precisely because the IDF took steps to prevent such harm. The illogic of this notion is clear, and HRW cites no authority or references to support this argument.

(7) HRW’s letter to IDF seeking classified material – admission of ignorance, cynicism or both HRW’s ignorance about what actually happened in the alleged IDF strikes discussed in this report is reflected in the questions sent in a letter addressed to the IDF. (pp. 41-43.) Many of these questions inquire as to the IDF’s military objectives in the strikes covered in the report, or ask for information on the drones HRW claims that the IDF employed.

These questions reflect HRW’s lack of information on the very issues on which they claimed expertise in this report. As noted above, the questions related to the drone technology and the level of precision also reveal either a damning ignorance or an effort to increase criticism of the IDF for not revealing classified information necessary to disprove HRW allegations.