Trevor Norwitz

Response to the IBA Human Rights Institute’s Statement on the Situation in Gaza

Last week, the IBA Human Rights Institute (“IBAHRI”), an independent entity associated with the International Bar Association (the “IBA”), issued a second statement on the war between Israel and Hamas.  Unfortunately, this statement is dishonest and injudicious, and threatens to set back the cause of human rights.

I write as a lawyer active in the IBA and a staunch advocate for human rights.  I also happen to be Jewish and support the right of Israel to live in peace and security, ideally alongside a peaceful and successful Palestinian state.

One could say that IBAHRI showed its true colors in early October when, following the most cruel and sadistic terrorist attack in modern history, it chose to stay silent.  With incontrovertible evidence (much of it proudly provided in real time by the Hamas terrorists themselves) of mass murder, mass rape, torture, beheadings, genital mutilation, immolation, kidnapping, and firing thousands of rockets at Israeli towns and cities, to mention just some of the heinous crimes against humanity committed by Hamas on that day, the Human Rights Institute of the IBA chose not to speak.  The IBA through its President issued a firm condemnation of the Hamas atrocities.  IBAHRI said nothing.

On November 2, at the IBA annual meeting in Paris, while many IBA delegates attended a meeting at the Paris Bar Association at which we heard from, among others, a young woman who had several members of her family murdered by Hamas on October 7 and seven more among the 240 then held hostage, IBAHRI issued its first statement on the Gaza situation.  Entitled “IBAHRI calls for adherence to international law,” this statement was primarily aimed at Israel, but it was a reasonable and balanced comment.  IBAHRI at least noted (without adopting) the IBA President’s statement “in condemnation of Hamas’s atrocity crimes” and acknowledgement of Israel’s right to self-defense, while saying it “also understands the requirement for context while not condoning actions or viewing in a vacuum” (whatever that means).

Sadly its second statement issued a few days ago – entitled “[IBAHRI] condemns the indiscriminate and disproportionate attacks on Gaza and reiterates the call for an immediate ceasefire” is not reasonable or balanced.

It is dishonest in several important respects.  First, the statement slyly pretends that IBAHRI has condemned Hamas’ October atrocities “in an earlier statement”. In fact the only statement IBAHRI can point to is that of the IBA President. IBAHRI itself stayed shamefully silent in the face of the horrific crimes against humanity of October 7.

The IBAHRI statement is also dishonest in reporting Palestinian civilian casualties. It states: “According to reports, approximately 20,000 civilians have been killed in Gaza since 7 October 2023.”  This not only ostensibly regurgitates without attribution Hamas-provided statistics that even the most biased news agencies know they need to qualify as such because, if history is a guide, they will likely be exposed in due course as flagrant lies.  It also exaggerates them.  Even Hamas (whose mendacity is as well-established as its cruelty) does not say that 20,000 civilians have been killed.  The number cited by Gaza health officials (that is, Hamas) includes Hamas’ own fighters, around a third of that number according to the IDF.  All civilian casualties of war are tragic, but given Hamas’ primary strategy of using human shields and seeking to maximize civilian casualties (precisely in the hopes of getting groups like IBAHRI to say what they are now saying), a fighter-to-civilian ratio in the region of two-to-one is relatively low and not easy to achieve against a terrorist group embedded among civilians and civilian infrastructure.

The IBAHRI statement is also dishonest in accusing Israel of intentionally starving civilians and  deliberately blocking the delivery of water, food, fuel and medicine for over two months.  In support of its accusation, IBAHRI refers to a rash statement made in anger by the Israeli Defence Minister in the immediate aftermath of October 7 ordering a “complete siege on the Gaza Strip”.  While this statement was inappropriate (not least because it provided valuable ammunition for Israel’s enemies to abuse), it was clearly not implemented and Israel has been working with partner organizations to facilitate the delivery of humanitarian aid to civilians in Gaza subject to appropriate security checks.   It is well established that Hamas pillages humanitarian aid and the laws of armed conflict do not require combatants to provide material support to their enemies.  The amount and pace of aid may not be satisfactory to IBAHRI, and may even not be enough, but it is a far cry from that to “the intentional starvation of civilians.”

The IBAHRI statement is also injudicious.  It declares Israel guilty of “wholly disproportionate and indiscriminate attacks on Gaza” without providing a scintilla of evidence to support those legal conclusions.  Apparently, according IBAHRI, the (Hamas-provided) numbers themselves are sufficient proof of Israel’s guilt.  This may be enough for a propaganda outfit but IBAHRI is made up of lawyers who ought to know and behave better.  Unlike Hamas, Israel’s rules of engagement do firmly discriminate between military and civilian objects, and the IDF could probably explain the reasons behind every target it has struck.  As IBAHRI members well know, the question of proportionality is a difficult fact-based assessment requiring knowledge of what the legitimate military target was, what the commander in the field knew of the risk of collateral civilian damage at that time, and how those known risks compared to the military advantage sought.  I doubt IBAHRI even tried to get any of that information before rushing to publish its guilty verdict.

It is more than possible that the rules of engagement were not always followed by the IDF. War is messy and scary (especially when one’s enemy’s favorite tactics are perfidy and deception) and mistakes are made.  We know of at least one such tragic mistake in which three Israeli hostages were killed by a young IDF soldier who panicked and opened fire when he should not have.  There have very likely been other such lapses and will be more.  War is literally horrific (and so it is important to remember who started this one).  Israel, under the authority of its independent Supreme Court, will investigate these instances and allegations as it always does, and take appropriate action.  For IBAHRI, without any facts, to act as judge, jury and executioner and simply declare Israel guilty of war crimes pointing to “a genocide in the making” is at best injudicious, at worst a vicious blood libel against the world’s only Jewish state.

Finally the IBAHRI statement is imprudent.  There is no question that the situation in Gaza is devastating and one cannot be unmoved by the toll on civilians there.  But the architects of that devastation are the terrorists of Hamas who started this war and could end it at any time.  By not laying the primary blame where it clearly belongs and by demanding that Israel give Hamas what it wants, IBAHRI is giving in to Hamas blackmail that would set back the cause of human rights and lead to continued suffering not only by Israelis and Palestinians, but by civilians in the rest of the world as well.

Hamas is a scourge, not just on Israel and the Palestinian people, but on humanity, and its ability to sow death and destruction must be ended.  If Hamas is able to demonstrate that a group with no moral limits, no regard for law, and no respect for human life, can succeed with their terrorist tactics, then the use of those tactics will certainly not stop with Israel.

Monitored humanitarian pauses and corridors would be most welcome, but the demand for an unconditional ceasefire is effectively a demand for Israel to surrender before it has achieved its strategic imperatives.  This would be a mistake.

As I have written for many years, Hamas’ greatest strategic asset is the knowledge that, however outrageous its behavior, large segments of the press and political class and the “human rights” and international communities will effectively side with it, directing their wrath primarily at Israel, and protecting it from total defeat, so that its leaders can proclaim victory from the ruin and devastation they authored. Then – as they have promised – they will just do it all over again.

As difficult as it is in these extraordinary circumstances, the IDF has to comply with the rules of armed conflict.  I believe that it is doing so and the sacrifice of so many of its best and bravest young men and women who enter those hellish tunnels – the very definition of death traps – to try to defang Hamas and save the hostages they seized is evidence of this.  It is possible, perhaps even inevitable, that in the fog and horror of war mistakes will be made and if they are, it is fair to criticize.  But from a body as august and influential as IBAHRI, criticism should be honest, balanced and judicious.  Their last statement fell well short.

About the Author
Trevor Norwitz is a practicing lawyer in New York, who also teaches at Columbia Law School.