Did Israel Commit War Crimes In Jenin?
by Arthur Bierman

Israel's recent April incursion into the Palestinian West Bank city of Jenin created an international uproar, arousing hostile public opinion not only in the Arab world but also among significant elements of the European population. The main agents of this unprecedented assault upon Israel's reputation were journalists, mainly, but not exclusively of Left political persuasion, U.N. officials and prominent human rights organizations, such as the New York based Human Rights Watch (HRW).

To understand the Israeli campaign, we must begin with the well known fact that Jenin's refugee camp had been one of the most active centers of Palestinian terrorism. It was here that Hamas, Islamic Jihad and the Al-Aqsa Martyr Brigade recruited and trained their followers; it was also here that these groups established their bomb factories, produced and distributed their lethal products to their agents and then dispatched them into Israel to perform their homicidal missions. In other words, by most measures there was a major large scale terrorist base housed within the Jenin refugee camp. Between January 1 and April 10, 2002, they were responsible for killing 36 and wounding 242 Israeli citizens. Perhaps most noteworthy was the March 29th mission of Jenin's Abed El-Bassat Odeh who blew himself up in a large Netanya hotel room filled with 200 Passover celebrants, killing 28 and wounding 159 -a genuine "massacre" by any definition.

On April 2, Israeli forces surrounded Jenin's refugee camp, and after repeatedly urging the departure of unarmed civilians, began a full scale assault which lasted for approximately ten days, and ended with the death of 28 Israeli reservists, the death or surrender of about 100 Palestinian fighters and the almost total destruction of a small part of the refugee camp.

Israel's military campaign was harshly criticized by Palestinian and Western human rights organizations, European journalists, and UN officials. Initially, the Israeli Defense Force (IDF) was accused of having "massacred" hundreds of Jenin residents. The claim was first voiced by Saeb Erakat, a high Palestinian Authority (PA) official, who told CNN on April 10 that the IDF had killed "more than 500 people". On April 12 he informed CNN that " a real massacre" had been committed and that 300 civilians had been buried in mass graves. This accusation was widely, and uncritically, reported in the European media and for a short time acquired the status of a self-evident truth. But when, within a few days, Erakat's accusation was exposed as fraudulent - despite their best efforts the PA could produce only 56 corpses - the IDF was then accused of having committed other, somewhat less heinous war crimes, such as willfully killing "innocent" civilians, using them as human shields and engaging in destruction lacking any military justification. While again originating from Palestinian sources, these charges were soon "verified" and then widely disseminated by HRW. As we shall demonstrate, however, even these claims turn out to be of dubious veracity.

Let us begin with the "massacre" story which seems to have been launched by PA official Saeb Erakat. His widely disseminated accusation of 500 killed civilians was soon repeated by other Palestinian sources. Thus the New York Times reported on April 13 that "Palestinians ..describe bodies cut in pieces, bodies scooped up in bulldozers and buried in mass graves, bodies deliberately concealed under collapsed buildings." (1) The self proclaimed Palestinian Human Rights organization LAW, The Palestinian Society for the Protection of Human Rights & the Environment, claimed on April 8 that during "the past 16 hours, more than two hundred missiles and artillery shells have been fired on the refugee camp, killing at least 50 residents. More than 100 residents have been killed in the past three days." It cited also a worker at Jenin's hospital, that "a massacre or genocide is now taking place in the camp." A subsequent LAW document accused Israeli forces of digging "mass graves in Jenin refugee camp to conceal crimes against humanity." (2)

European, and especially British, journalists, echoed the Palestinian charges of a "massacre" and Israeli attempts at a "cover up". Thus the Guardian's editors compared the Jenin action to the September 11 destruction of the two World Trade Center Towers; the Evening Standard called it a "massacre, and a cover up, of genocide"; and the Independent named it a "monstrous war crime that Israel has tried to cover up for a fortnight..." (3) Finally, on April 21, the UN Security Council, with strong support from Kofi Annan and initial Israeli agreement, voted to establish a "fact finding team" to investigate the massacre claims. After a few days, however, the Sharon government objected to the team's composition which included people with well known anti-Israel bias, and on May 4 Annan abandoned the attempt at a UN investigation.

Annan's decision to drop the matter was caused not only by Israel's opposition and Washington's lackluster support but also by the fact that by the end of April the "massacre" charge had begun to unravel. The principal difficulty was the absence of a suitable number of civilian corpses. An examination of the battle site, even after extensive clearing of rubble, uncovered only about 56 bodies, most of them of Palestinian gunmen. This absence of physical evidence finally compelled even the PA to drop its massacre charge, as is evident from this Washington Times article:

"Palestinian officials yesterday put the death toll at 56 in the two-week Israeli assault on Jenin, dropping claims of a massacre of 500 that had sparked demands for a U.N. investigation. The official Palestinian body count, which is not disproportionate to the 33 Israeli soldiers killed in the incursion, was disclosed by Kadoura Mousa Kadoura, the director of Yasser Arafat's Fatah movement for the northern West Bank....." (4)

By the beginning of May even the most fervent critics of Israel had realized that there had been no Jenin massacre. But this did not move them to retract their earlier charges, nor did it cause them to reconsider their biased positions. Instead, they now switched to accuse the IDF of having committed a host of other, slightly less serious war crimes. Perhaps the most detailed such indictment came from HRW, which had sent a 3 person team to Jenin to investigate the just ended military campaign. After interviewing over 100 Jenin residents, HRW issued a report on May 3 which concluded that while it "found no evidence to sustain claims of massacres or large -scale extra-judicial executions by the IDF", there exists "strong prima facie evidence that IDF personnel had committed grave breaches of the Geneva Convention, or war crimes." (5)

The report alleged three such breaches: (6)

(a) Of 52 Palestinians killed during the operation, 22 were civilians, "many" of whom were allegedly killed "willfully or unlawfully".

(b) The IDF used Palestinian civilians as human shields.

(c) The IDF used indiscriminate and excessive force during the Jenin operation.

Consider HRW's accusation that the IDF had "willfully" killed an undetermined number (more than 4 and less than 22) of civilians during the 10 day Jenin campaign. (7) Now, while it is true that the non-accidental , hence "willful", killing of noncombatants is illegal under international law, it is not true that civilians are automatically protected persons - certainly not in Jenin where the ranks of Palestinian combatants included not only non-uniformed, armed men but also women and children who performed such combat duties as booby trapping buildings, carrying ammunition, providing intelligence and, as reported in the Egyptian newspaper Al-Ahram, luring 13 Israeli soldiers into a previously prepared lethal trap. (8) Clearly, the old-fashioned definition of noncombatants as persons dressed in civilian garb does not apply to Jenin. To determine the true combatant status of a Jenin resident, man or woman, adult or adolescent, requires a detailed knowledge of the resident's actions during the ten day long Israeli incursion.

How then did HRW determine that "many" of the 22 killed Palestinian civilians were not just persons in civilian garb, but had actually abstained from combat? Since the team had not been present during the fighting, it obviously had to rely upon testimony from presumably reliable witnesses - which should have included both Palestinian residents and Israeli soldiers. However, for reasons never explained, the research team only interviewed camp residents - by its own account, over 100 such persons, all of whom had been "first hand observers of the events .....including international aid workers, medical workers, and local officials". The HRW report did claim to have repeatedly, but vainly, requested unspecified "information" from the IDF "regarding its military incursion". But this neither explains nor justifies HRW's failure to solicit testimony from individual Israeli soldiers who had participated in the Jenin campaign. Given the open nature of Israeli society and the passionate desire of many of its citizens to tell their side of the story, HRW could have drawn upon the experiences of a large number of Israeli witnesses.

The report has a further serious deficiency - besides limiting its inquiry to Palestinian residents and their supporters, it is not at all clear what criteria HRW used to determine noncombatant status. To be specific, we have no idea whether the team counted all unarmed civilians as protected persons or whether it had truly tried to assure itself that such persons had in fact abstained from assisting "armed militants" during combat. Given such uncertainty. we do not really know how many of HRW's alleged "civilians" had a legitimate claim upon the "protected person" status.

We have still another reason for questioning HRW's claim that its "experienced" investigators " had gathered detailed accounts from victims and witnesses... carefully corroborating and independently crosschecking their accounts with those of others". The report lists only 4 cases containing the victims' names as well as some limited information about the alleged circumstances of their deaths. All others are anonymous and no evidence is provided justifying HRW's claim that they had been "unlawfully" killed. One wonders - where then are the details the team so carefully gathered and corroborated? And as to the 4 specified examples - even their credibility depends upon the validity of one critical assumption - that the team had managed to extract accurate information from witnesses of dubious objectivity.

HRW's second charge accused the IDF of having used Palestinians as "human shields" and claims to have witnesses testifying to this practice. The report cited two specific instances, one involving a resident named Tawalba and his 14 year old son, who were allegedly forced to stand for "3 hours in the line of fire" and whose shoulders were used as resting places for Israeli rifles as the soldiers fired at Palestinian fighters. In the second case, a 65 year old woman was allegedly "forced to stand on a rooftop in front of an IDF position in the middle of an helicopter battle." According to HRW, this abusive treatment of civilians has been a widespread Israeli tactic since at least 2001; but given the above described circumstances -for example, being forced to stand for 3 hours in the line of fire - one would have expected such long standing practice to have caused a not insignificant number of civilian casualties. Yet, HRW mentions no such casualties - which omission moves us to view this story with some measure of skepticism.

HRW's final war crimes charge accused the IDF of having used "indiscriminate and excessive force". The cited examples include firing "antitank missiles and other ordinances into the camp"; striking "many houses that were inhabited only by civilians"; and leveling large parts of a particular camp district. HRW concluded that "the extensive, systematic, and deliberate leveling of the entire district was clearly disproportionate to any military objective.." Three comments seem in order: It is again surprising that the IDF had managed to launch such a massive assault upon the camp's infrastructure without killing no more (and probably many fewer) than 21 noncombatants. In short, where are the expected victims? Secondly, many of the damaged or destroyed buildings had been booby trapped by the Palestinian fighters and were then the sites of extremely fierce combat. HRW was therefore not justified assigning all responsibility for Jenin's destruction to the IDF. Thirdly, HRW gives no arguments supporting its claim that this "deliberate leveling" was disproportionate to Israel's military objectives. It seems to us that only an experienced combat veteran, and in particular, only one familiar with house to house fighting, would be qualified make an educated judgment about the proportionality of IDF's military tactics. To the best of our knowledge the HRW team did not include anyone with such military experience.

Given these deficiencies, how seriously should we take HRW's claims of Israeli war crimes during the Jenin campaign? Let me preface our answer by immediately granting that some such "criminal" acts might indeed have been committed by a few Israeli soldiers. After all: Relations between the two communities had become exceedingly bitter; the Jenin incursion was a direct response to repeated Palestinian terror attacks upon Israeli civilians. Also, the 10 day battle turned out to be unexpectedly bloody, causing unanticipated large Israeli casualties. All these conditions were certainly conducive to weakening the moral restraints of normally decent human beings. So, to repeat, it would therefore be absurd to deny the possibility of such violations. However, there is one overwhelming fact suggesting that if there had been such Israeli transgressions, they must have been rare indeed - and that is the small number of "civilian" casualties actually inflicted upon the camp residents. Given the extended length of the battle, given the ferocity of combat, and given that Palestinian women and children had willingly participated in resisting the Israeli invaders, it seems surprising that only between 4 and 21 civilians were "illegally" killed. And even this low number assumes the veracity of Palestinian witnesses who would not only be predisposed to report the worst of the IDF, but would also be pressured to do so by leading members of their community. As an example of such an organized Palestinian effort to besmirch the IDF, consider the following post-combat report from Jenin by an American journalist:

"The propaganda war continues, meanwhile, in the refugee camp itself. Families whose homes had been destroyed were ordered to sit and lie inside tents pitched near the destruction, to be available for interviews and filming with foreign reporters and photographers. At dusk, with the press opportunities concluded, they returned to houses offered to them in the undamaged city. Other young men..have been on duty in the camp's narrow street, eager to conduct foreign correspondents to places where they say Israelis killed militants after they surrendered or had been captured." (9)

Which returns us to the claimed ability of HRW's research team to "carefully corroborate and independently crosscheck" the various accounts drawn from members of the Jenin community. It is impossible, of course, to comment in detail upon this claim, and for the simple reason that the original raw data has not been made available. However, one might well question the effectiveness of any "corroboration and cross checking", if all witnesses are either personally biased or pressured into presenting a biased version of these traumatic events. I furthermore question the team's desire to extract "the truth and nothing but the truth" from probably biased testimony. For one, I point to the already mentioned fact that HRW had made no effort to balance the Palestinian accounts by testimony from discharged Israeli soldiers. Secondly, we have published comments by HRW team leader Peter Bouckaert indicative of a distinct anti-Israel bias.

Let me itemize some of the evidence:

-While patently comfortable accusing Israel of serious war crimes on the basis of Palestinian testimony alone, Bouckaert entertained a robust skepticism concerning Israel's well supported claim that Jenin had been a launching pad for numerous suicide bombers - a skepticism rendered even more impressive by the fact that Hamas had boasted of Jenin's crucial role in its terror campaign. Bouckaert thus referred to "Israel claims that the camp had been the launching ground for many of the suicide bombings"- as if these claims needed further factual confirmation. (10)

The same inclination to minimize Palestinian violence and correspondingly maximize the destruction caused by Israeli retaliation was clearly exhibited in an on-line Washington Post Forum where Bouckaert responded to questions posed by members of a North American audience: (11)

-- When asked to comment on an Al-Ahram report by "Omar", an escaped Jenin fighter, that he and his comrades had "booby trapped more than 50 buildings", Bouckaert grudgingly granted that his team had found evidence of "several booby-trapped homes....and one bomb factory." But this, as well all other admissions of Palestinian terrorist planning and activity inside the refugee camp was immediately followed by what became an almost ritualistic statement - that "the camp was home to 14,000 Palestinians and most of whom had nothing to do with terrorist activities." In fact, the IDF discovered four bomb factories in the camp, as well as a large number of other weapons, explosives, pipe bombs, car bombs, Israeli uniforms, and barrels of chemicals for producing explosives. As to the large number of residents who had presumably "nothing to do with terrorist activities", leaving aside Bouckaert's self-evident ignorance as to the actual level of civilian participation in Jenin's terrorist actions, he never condemned Hamas, Islamic Jihad and the Al-Aqsa Brigade for having constructed such a terrorist network amidst this civilian population - actions which are in fact prohibited by Article 58 of the Geneva Convention's Protocol concerning victims of armed conflicts. Nor, for that matter, did he voice any criticism of the UNWRA administration for having permitted such actions to occur under U.N. auspices.

--When asked whether it "was true that only a small portion of Jenin was damaged in the Israeli operation", Bouckaert gave the following answer: "The IDF posted a very misleading map of the damage in Jenin in which they claimed that only a small area in the camp was destroyed. This map does not accurately reflect the damage done to the camp. As I said before, at least 140 homes were completely destroyed by Israeli offenses and more than 200 were severely damaged."

Bouckaert's response suffers from a number of flaws, indicative of serious anti-Israel bias:
-If taken at face value, the question related to the whole city of Jenin, rather than to the refugee camp alone. And when thus construed, the correct response is an emphatic affirmative. Apart from the refugee camp, the rest of Jenin suffered no damage whatsoever.

-- But even if we restrict ourselves to the refugee camp alone, Bouckaert's denial that "only a small portion of Jenin" was damaged is still incorrect. He ingenuously mentioned 140 destroyed and 200 seriously damaged houses, but neglected to tell his audience that the camp's total housing stock contained 1896 buildings. In other words, less than 18% of the camp's housing was either destroyed or seriously damaged - from which one could well conclude that "only a small portion" of Jenin had indeed been damaged.

-- Bouckaert exclusively blamed "Israeli offenses" for all the destruction inflicted upon the refugee camp. But this flies in the face of the well known fact that the Palestinian fighters had deliberately destroyed some of Jenin's housing during their fierce resistance to the Israeli attack.

Given Bouckaert's so patently biased attitude, it should come as no surprise that his team had made no effort to solicit Israeli testimony. After all, such witnesses might have presented ther team's members with evidence conflicting with their evident preconceptions. Of course, there was still HRW's New York headquarters which could have attempted to correct the team's bias - however, as we shall demonstrate in the next issue of FOCUS, the larger organization has been afflicted by the same anti-Israel bias.

In light of all these demonstrated deficiencies - the inevitably one sided testimony of Jenin residents, the absence of any balancing Israeli testimony, HRW's failure to clarify its definition of "protected persons", HRW's willingness to condemn Israel's military actions as "indiscriminate and excessive" while lacking the needed experience to render fair judgment, and finally, the team's flagrant anti-Israeli bias -HRW's widely disseminated and inflammatory claims of Israeli war crimes should be unconditionally rejected as flawed beyond redemption.(12)

***

Endnotes:

(1) James Bennet, The New York Times, April 13, 2002, p. 1A.
(2) "Israeli forces commit massacre in Jenin refugee camp", April 8, 2002; LAW. See also "LAW Weekly Roundup, ":4-10 April 2002
For documents, contact arthur.bierman@comcast.net
(3) For a more extensive discussion of how the British press treated the Jenin incursion, see article byTom Gross. For copy, contact arthur.bierman@comcast.net
(4) "Jenin 'massacre' reduced to death toll of 56", The Washington Times, May 1, 2002
(5) For the report, contact arthur.bierman@comcast.net
(6) "Israel/Occupied Territories: Jenin War Crimes Investigation Needed." May 3, 2002.HRW
(7) The HRW report discussed the deaths of 4 named Palestinians civilians.
(8) 18-24 April 2002 Issue, No. 582 ,Al-Ahram Weekly
For documents, contact arthur.bierman@comcast.net
(9) Paul Martin, "Jenin 'massacre' reduced to death toll of 56', The Washington Times, May 1, 2002, p. A01.
(10) "Israel/Occupied Territories: Jenin War Crimes Investigation Needed",HRW
(11) This particular question and answer exchange, as well as all others mentioned in the rest of this article, refer to an April 26, 2002 Washington Post Forum, where Bouckaert, speaking from Jenin, responded to a number of questions posed by Canadian and U.S. listeners. For copy of transcript, contact arthur.bierman@comcast.net
(12) For more detailed discussions of world reaction to the PA's massacre claims, see the ADL's "Anatomy of Anti-Israel Incitement: Jenin, World Opinion and the Massacre That Wasn't", at ADL; as well as "What Really Happened in Jenin?" by the Jerusalem Center For Public Affairs, at JCPF