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Nonviolent Resistance is not Illegal: HRW Should Retract Statement

On Sunday, Nov. 19, hundreds of Palestinian civilians crowded into the building where the family of Mohammed Baroud and a number of other families live in Jabalya refugee camp in the Gaza Strip. Israeli military forces had warned that the building would be attacked. The planned Israeli attack was deterred by this action. Two hours later, the scene was replicated at the family home of Mohammed Nawajeh, with the same results.

The International Solidarity Movement (ISM) applauds the people of Jabalya for their courageous and effective use of nonviolent resistance, and we express our full solidarity with their actions, which are positive initiatives in the struggle to defend Palestinian rights. We encourage international volunteers to participate in these actions, as did Father Peter Dougherty and Sister Mary Ellen Gundeck of the Michigan Peace Team.

We note with disappointment that Human Rights Watch (HRW) chose to condemn these actions, suggesting that they could constitute a “war crime.” In a November 22, 2006 press release entitled, “OPT: Civilians Must Not Be Used to Shield Homes Against Military Attacks” HRW Middle East Director Sarah Leah Whitson said, “There is no excuse for calling civilians to the scene of a planned attack. Whether or not the home is a legitimate military target, knowingly asking civilians to stand in harm’s way is unlawful.”

HRW’s press release is factually, legally, and morally flawed.

HRW based its statement on contested factual information. HRW claimed that “Palestinian armed groups” and Mohammed Baroud encouraged civilians to gather around the homes. However, while some press accounts mention Baroud’s role, numerous other press and participant accounts from Gaza suggest that the mobilizations resulted from calls by civilian leaders and a groundswell of popular anger against Israeli home demolitions.

As just one example, Eyad Bayary, a head nurse at Jabalya Hospital who went to Baroud’s home with another twenty of his neighbors, told ISM that he did not hear a call from Baroud asking people to protect his home. He and his neighbors went to support Baroud and his family and to protest the shelling out of their own volition. “I live next to Mr. Baroud’s family home. If his home is shelled at best my home would be damaged. My wife is in the six month of her pregnancy. God forbid, a shelling of the house next door could endanger her and the child she is carrying. All our children would be affected. We went to the Baroud family house because we were scared and angry. No one asked us to come.”

In addition to this factual weakness, we believe that HRW’s position reflects serious errors in the interpretation and application of international humanitarian law (IHL), in two fundamental respects: (1) HRW’s position explicitly rejects considering the legitimacy of the target as relevant to the legal analysis; and (2) HRW’s position erroneously places the burden of protecting civilian lives on the population being attacked instead of on the belligerents carrying out the attack.

According to HRW, “In the case where the object of attack is not a legitimate military target, calling civilians to the scene would still contravene the international humanitarian law imperative for parties to the conflict to take all feasible precautions to protect civilians from the effects of attack.” IHL clearly makes target legitimacy central to the determination of lawful vs. unlawful conduct. Protocol I of the Geneva Convention, Article 51(7) provides that “Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.” Article 52 of the same Protocol makes clear that a civilian home is a civilian object and not a military objective. Even if Mohammed Baroud and Mohammed Nawajeh are military commanders, their families, their family homes and the homes of other families in the same buildings are not military objectives.

Therefore, the Geneva Convention’s prohibition on the use of civilians to shield military objectives does not apply to the voluntary gathering of Palestinian civilians to protect civilian objects like the homes of Baroud and Nawajeh from a pending Israeli attack. Rather, Israel’s targeting of these homes constitutes a violation of numerous provisions of IHL that proscribe attacks on civilian property, and of Article 33 of the Fourth Geneva Convention, strictly prohibiting the destruction of property for the purpose of collective punishment.

While IHL places obligations on all parties to a conflict to take “all feasible precautions” to protect civilians from the effects of attack, HRW does not cite support for its claim that encouraging civilians to defend their homes from military strikes constitutes a violation of this imperative. In fact, Protocol I, Article 57 relating to precautions in attack, specifically places the obligation to protect civilians on “those who plan or decide upon an attack.” (Protocol I, Art. 57(2)(a)). Furthermore, providing warning does not absolve Israel of its responsibility not to attack civilian objects, nor does it make the civilian objects legitimate military targets.

The error of HRW’s interpretation of IHL is even more obvious when we consider that HRW statements like “Civilians Must Not Be Used to Shield Homes Against Military Attacks” and “knowingly asking civilians to stand in harm’s way is unlawful” would proscribe many completely legitimate forms of nonviolent resistance in occupied peoples’ struggles. The Fourth Geneva Convention and its Additional Protocols were never intended to permit an aggressor to choose his targets at will, while putting the onus on the civilian victims to get out of the way. Nor were these laws created to prevent civilians from exercising their right to defend their property.

The condemnation of nonviolent efforts by civilians to prevent the destruction of civilian homes also represents a failure of moral judgment on the part of HRW. To condemn nonviolent actions in this way is to confuse civil resistance with the forcible use of “human shields” by military combatants, such as those documented by the Israeli human rights organization B’Tselem in its November, 2002 report “Human Shield”. The report describes Israeli military seizures of Palestinian civilians, forcing them to walk in front of soldiers and sometimes placing them on the hoods of their vehicles to deter attacks against their military personnel. These Israeli military actions are clearly war crimes (though HRW failed to label them as such in its April, 2002 report, “In a Dark Hour: The Use of Civilians during IDF Arrest Operations”). It is a mistake to extend this principle to the courageous voluntary participation of unarmed individuals in mass nonviolent actions in defense of their human rights.

By condemning nonviolent civilian resistance in this way, HRW endangers those practicing it, and undermines the work of other human rights groups and the credibility of HRW itself. ISM calls upon HRW to retract its November 22 press release and to recognize the courage and the legitimacy of the actions of the Palestinian community in Jabalya.