It’s certainly news that Human Rights Watch’s critics were able to get a former HRW chairman to slam the organization for having the temerity to hold Israel to the same standards of international humanitarian law to which it holds every other country. But Bernstein doesn’t appear to have any arguments to make that any of the instances of human rights violations HRW has documented didn’t take place. Instead his view is basically that Israel ought to be exempt from criticism because its enemies are mean:
Human Rights Watch has lost critical perspective on a conflict in which Israel has been repeatedly attacked by Hamas and Hezbollah, organizations that go after Israeli citizens and use their own people as human shields. These groups are supported by the government of Iran, which has openly declared its intention not just to destroy Israel but to murder Jews everywhere. This incitement to genocide is a violation of the Convention on the Prevention and Punishment of the Crime of Genocide. [...]
The organization is expressly concerned mainly with how wars are fought, not with motivations. To be sure, even victims of aggression are bound by the laws of war and must do their utmost to minimize civilian casualties. Nevertheless, there is a difference between wrongs committed in self-defense and those perpetrated intentionally.
For one thing, The New York Times really shouldn’t publish op-eds stating that “the government of Iran . . . has openly declared its intention . . . to murder Jews everywhere.” There are Jews in Iran, unmurdered, subject to the same repressive dictatorship as Iran’s Muslims, with its abuses duly cataloged and condemned by Human Rights Watch.
The argument in the second graf I quote is, huffing and puffing aside, all there is to Bernstein’s argument. He thinks that Hamas and Hezbollah “started it” and Israel is acting in self-defense, and that countries acting in self-defense should generally be exempted from international humanitarian law and human rights norms. This is a thesis a lot of people seem eager to embrace in the specific case of Israel, but few people seem prepared to defend as a general proposition or to apply as a general matter. People don’t defend it as a general proposition because it’s not defensible. For one thing, this just isn’t what international humanitarian law says. Just war theory has always recognized specific ethical obligations of combatants that are unrelated to the justice of their cause, and international humanitarian law does the same. After all, subjectivizing the obligations of combatants in the way Bernstein proposes would drain the standards of all force. All participants in all wars think that they’re the good guys and the enemy is the bad guys.
It’s the existence of independent standards that lets us say that it’s wrong and illegal of Hamas to lob rockets at Israeli towns, and to try to build a consensus around that point that’s independent of people’s views on all the different twists and turns of the Israeli-Arab conflict. But by the very same token Israel’s obligation to minimize civilians’ exposure to harm also exists independently of people’s views on all the different twists and turns of the Israeli-Arab conflict. To relativize combatants obligations to the merits of their underlying position would just reduce human rights and humanitarian law to politics, with everyone saying all their conduct was justified by the justice of their cause.
If people want to say that the whole quest to articulate objective human rights standards and international humanitarian law is inherently futile or misguided, then fine. But an awful lot of people who claim not to believe that seem to want to turn around and reject the underlying premises of the endeavor when it turns out that Israel—like its adversaries—sometimes violates those standards.