The fog of war has descended on the Israel-Hamas conflict. On 17 October, a blast at the Al-Ahli Arab Hospital in Gaza City killed 471 people, according to Palestinian health officials. Hamas promptly claimed that an Israeli air strike caused the explosion. Israel has denied this, releasing evidence to support its claim that the blast was the result of a failed rocket launch by Palestinian Islamic Jihad (though some reports have cast doubt on Israel’s evidence).
In the hours following the explosion at the hospital, a frenzied debate broke out – online, in the media and among government officials – over who was responsible. Many news outlets were forced to walk back their initial reports. “It is so misguided to go with the latest wild charge when the known reality is awful enough,” says Kenneth Roth, the 68-year-old former head of Human Rights Watch (HRW), in a video call from his home in New York, where he lives for part of the year. Of the hospital blast in particular, he says: “It’s a horrible tragedy but we just don’t yet know who is responsible.”
It was also not the first time conflicting stories have emerged in this war. In the days following the 7 October attack, one report that Hamas had beheaded 40 babies in a kibbutz went viral but has yet to be verified. On 9 October, the Los Angeles Times amended an article that mentioned Hamas militants had raped Israeli women, saying its reports had “not been substantiated”. There is evidence, now, that there were incidents of rape in the attack, as well as decapitations.
As parsing what’s truth and what’s propaganda has become even more difficult, it makes the job of defending human rights even more fraught. Roth adds, “Nobody should be trying to exculpate Hamas because it maybe didn’t behead babies.”
But amid the flurry of disinformation, one thing is clear: neither Hamas nor Israel seem to be abiding by internationally agreed rules of war intended to protect the innocent. When armed Hamas and Islamic Jihad militants carried out their brutal attack on southern Israel, they targeted civilians indiscriminately and took up to 250 hostages. Gaza’s militant factions have continued to fire rockets on civilian populations across Israel. And in its response, the Israeli army has bombed the densely populated Gaza Strip, wiping out neighbourhoods; Israel also cut food, water and energy supplies to the Strip.
“The sad truth is that, so far, impunity has reigned,” Roth says. “We cannot trust Hamas to police itself, and frankly, we can’t trust the Israeli government to police itself.” But international humanitarian law “is not some concoction of human rights groups and pacifists. This is a law written by the militaries of the world – I’m including the Israeli government, the British government and the US government – these are not rules to be followed when things are not too difficult.”
War crimes by one side, he adds, do not justify war crimes by the other: “The duty to respect international humanitarian law is absolute.”
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Now a senior fellow at Harvard’s Carr Center for Human Rights Policy and a visiting professor at Princeton, Roth led HRW for 30 years before leaving the organisation in 2022. HRW’s one Gaza-based researcher happened to be out of the Strip when the recent fighting started, “for better or worse”.
Roth is firm in his view that Hamas has committed “grievous war crimes” since 7 October, “slaughtering civilians and abducting civilians”. So far, the Israeli army has confirmed that 199 people are being held hostage. Israel is entitled to respond militarily to the massacre, says Roth, but that does not mean “carte blanche or anything goes”.
In fact, Roth thinks that Israel’s response in Gaza looks more like “collective punishment” than a targeted effort against Hamas, with Israel cutting off supplies to the more than two million people living in the Strip and ordering mass evacuations of civilians from the north to the south. HRW has verified videos showing Israel’s army using white phosphorous in civilian areas in Gaza, as well as in Lebanon in recent days. The incendiary material, used for “marking, signalling or obscuring, or as a weapon to set fires”, according to the rights group, increases the risk of harm to civilians. Its use in populated or civilian areas can be a war crime.
“The premise of humanitarian law is pretty simple,” Roth explains. “You do what you can to spare civilians the hazards of war, and there are a variety of things the Israeli military is doing that seem to fall short of that.” Israel accuses Hamas of using human shields and argues that this makes it harder for its military to safeguard civilian lives. But the Israeli army has decimated Gazan neighbourhoods and struck residential buildings, notes Roth, rather than isolated Hamas targets. Saying you don’t target civilians is a “low bar”.
A current argument made over Israel’s actions in Gaza is that it amounts to a genocide against Palestinians. Under the UN’s Genocide Convention, there must be “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. Does Roth think that accusation is fair? “I tend to be pretty conservative in making genocide accusations,” he says. “Some people feel like it’s not really serious unless you call it genocide and I think that’s a mistake.” War crimes are serious enough, he adds, “so I tend to be quite conservative about this rhetorical elevation and stick to what is clear”.
Watching from afar, Roth is most concerned by Israel’s mass evacuation order of Palestinians to southern Gaza and worries about the potential for Gazans to be evacuated to Egypt. “Palestinians fear another Nakba,” he says, using the Arabic word for catastrophe with which Palestinians refer to the establishment of the state of Israel in 1948, “when the temporary humanitarian evacuation of an area turns out to be permanent.” The Israeli government, he says, “may well have a motivation to see if they can unload a significant part of that Palestinian population and never let them back.”
“It’s clear that the Netanyahu government is not providing any kind of moral leadership,” says Roth. “I don’t see it on its own resisting these calls for broad revenge against the Palestinian civilian population, which is why the response of Western governments matter so much.” On 18 October, the US president Joe Biden visited Israel to show “solidarity” and address “dire humanitarian needs”. Following the hospital blast, the Palestinian president Mahmoud Abbas cancelled a planned meeting with Biden that was due to take place in Jordan.
[See also: The Israel-Hamas war has left Britain divided]
Roth, a Jew whose father fled Nazi Germany in 1938, has been routinely accused of having an anti-Israel bias in the past. In 2014, he was accused of blaming Jews for anti-Semitism when he noted a correlation between Israel’s military operations and upticks in hate crimes against Jews elsewhere. According to the UK’s Community Security Trust, which tracks anti-Semitic incidents, there has been a 300 per cent increase in reports since the war began, compared with the same period last year. After the Gaza hospital blast, a synagogue in Berlin was firebombed as was another in Tunisia.
Noting this trend is a “taboo you are not allowed to cross”, says Roth, adding that it’s not about blaming the victim. “You’re supposed to pretend that anti-Semitism is some autonomous force that ebbs and flows according to its own internal logic and has nothing to do with the rest of the world. And that’s just false.”
Muslims and Palestinians are also vulnerable to hate crimes following the Hamas attack. Israeli settlers have been targeting Palestinians in the West Bank, and there’s a “real risk”, says Roth, “of people taking revenge against random Palestinians”. On 14 October, a six-year-old Palestinian boy in Illinois was murdered and his mother stabbed by their landlord, who reportedly shouted “you Muslims must die”.
Will there be justice for victims of the war crimes the world has witnessed since 7 October? The International Criminal Court (ICC) has had jurisdiction within Palestine or over crimes committed by a Palestinian national since the Palestinian Authority joined the ICC in 2015. An investigation has been open into its situation for nearly three years, with little movement. Israel, not a signatory to the Rome Statute that established the ICC, opposed the investigation, as did the Trump administration. Last week, the ICC confirmed that its mandate applies to the current round of fighting.
The court has been “disappointingly slow”, admits Roth, who helped push for its creation in 2002, and in general “it doesn’t have a record of sufficient accomplishments for its 20-plus years”. While many are cynical regarding the power of the court to hold war criminals to account, Roth does see a potential path to justice. In the Israeli case, given the public’s anger at Israel’s government over the failures that led to Hamas’s attack, it is “not inconceivable that Netanyahu loses power”, says Roth. If that happens, “The ICC would consider it a victory if he gets even prosecuted domestically for war crimes, because the ICC is premised on what is known as the principle of complementarity, so it gives priority to genuine national prosecutions.” This seems a highly distant prospect, however.
When it comes to Hamas leadership, Roth says, “if somebody were captured, there’s no question that they would be prosecuted.”
For the moment, as the fighting continues, the role of human rights organisations like HRW is to bear witness to, and report, atrocities. “All governments, all armed forces behave better when they’re being watched,” he says.
[See also: Inside Israel’s intelligence fiasco]