The International Court of Justice (ICJ) will hold its first hearing in the proceedings brought by South Africa against Israel on January 11 and 12. In the petition submitted on December 29, the South African government argued that Israel’s manner of waging its war in Gaza is genocidal in nature and therefore a violation of its obligations under the Convention on the Prevention and Punishment of Crime. of genocide.
The ICJ Statute allows states parties to choose a person to sit as an ad hoc judge if the state does not have a judge of their nationality when the court hears a case to which they are parties. Both states chose to appoint their own ad hoc judge. South Africa chose former deputy chief justice Dikgang Moseneke, while Israel chose its former chief justice, Aharon Barak.
Not surprisingly, the decision to appoint Barak drew praise from all quarters. The 87-year-old served 28 years as a Supreme Court justice, including 11 as president. His career as a judge was preceded by a three-year term as Attorney General of Israel (1975-78) and a distinguished academic career at the Hebrew University.
A prolific writer with an international reputation, he is a sought-after speaker at prestigious Western universities and international forums. Part of his appeal is that, throughout his career, he managed to build a reputation as a Western liberal jurist trying to promote the rule of law and human rights despite the challenges of being in a “difficult part of the world”.
This carefully cultivated image and his academic background, combined with his history as a Holocaust survivor, gave him the air of a larger-than-life figure, a kind of fearless defender of human rights.
Barak will sit as a judge in a case in which South Africa will challenge the legality of Israel’s way of waging its brutal war against the Palestinians, an area in which he has extensive experience. After all, Israel’s Supreme Court has been the final arbiter of the legality of Israeli practices since the occupation of the West Bank and Gaza in 1967. His appointment as an ad hoc judge is a good opportunity to review his record and that of the Court and how it shaped Israel’s application of international law.
One of the thorniest issues Barak faced as attorney general and Supreme Court justice concerned Israeli settlements in the West Bank and Gaza. Despite the near-total consensus on the illegality of Israeli settlements and the long list of international law authorities, which includes resolutions of the United Nations Security Council, resolutions of the United Nations General Assembly and an opinion of the ICJ, the Supreme Court ruled in 1993 that the settlements are “non-justiciable”. This means that the court refused to discuss their legality under international law.
The court tempered some of the excesses of the colonization project, mainly to avoid a situation of total anarchy and chaos, which could undermine government policy and make it more difficult to defend the colonies internationally. However, the rules set forth by the court served more than anything to legitimize the entire proposed settlement. The result is that the settler population has increased from a few thousand in 1975 to 700,000 in 2023.
A similar pattern could be identified in cases related to the wall built by Israel in the West Bank. In 2004, the ICJ issued an advisory opinion stating that the wall was illegal because it violated the human rights of the Palestinian people, including the right to self-determination. But Barak disagrees.
Under his leadership, the court gave the legal stamp of approval despite the fact that the wall snakes across the entire West Bank, cutting off Palestinians from their land and severely restricting their movement. Although some legal challenges have succeeded in making minor changes to the route because their violation of the rights of the local population was disproportionate, these decisions ignored some important principles of international law. The result is that the entire wall project, which crosses villages and neighborhoods, was legitimized by the court.
Under Barak, the Supreme Court also continued to rubber-stamp the brutal practice of punitive home demolitions. First introduced by the British during the Second Boer War (1899-1902) in South Africa, this practice was imported by the British Mandate authorities in an effort to subdue the Arab Revolt in Palestine (1936-39). ).
The legal basis for this practice was repealed when Jordan controlled the West Bank between 1948 and 1967, but after occupying the territories, Israel resurrected the colonial legislation and used it extensively against the families of Palestinians suspected of being active in resistance to the occupation.
The Supreme Court has repeatedly rejected the argument that the practice is illegal under international law because it violates the Geneva Convention’s ban on collective punishment. Although there were some divergent opinions within the court due to the draconian nature of this practice, under Barak’s leadership it was approved, denying its punitive nature and presenting it as an administrative measure intended to promote security through deterrence.
In a small number of cases the court has ruled that the demolition was disproportionate and opted for sealing up part of the house, but in principle it has never challenged this practice despite its clear illegality under the law international. Here again, Barak’s role was to legalize what went against legal norms.
The decision on the use of torture is perhaps the case that best illustrates Barak’s approach of controlling excesses in order to legitimize and salvage what is clearly illegal under international law. The prohibition of torture under international law is absolute. It has achieved the status of jus cogens – a fundamental principle of international law that applies in times of war and peace and in all circumstances. This is not the case according to Barak.
In a 1999 ruling, the Supreme Court upheld the principle of the prohibition of torture, but this prohibition was not absolute. Under Barak’s leadership, it left the door open to the use of torture, or, as it was euphuistically called, “physical investigative means”, in “ticking time bomb” situations. In such cases, the interrogators would not be held responsible. He effectively introduced both the ban and the loophole to circumvent it.
Although there was a marked decrease in torture cases following this affair, the back door introduced by Barak turned into a door. Reports of torture have increased significantly in recent years, and the practice was widespread against Palestinian political prisoners even before the October 7 attacks. Human rights organizations have documented cases of sexual violence such as torture and torture resulting in death. None of those who carried out the torture were ever prosecuted.
Another example of Barak’s cavalier approach to international law is the case of Mubarak Awad. Like other Palestinians in Jerusalem, Awad was granted permanent resident status under Israeli law after 1967. After spending a few years in the United States, he returned home and founded the Palestinian Center for the Study of nonviolence in 1983 to promote nonviolent resistance to Palestine. occupation.
Awad’s activism angered the Israeli government, which decided in 1988 to deport him even though he was born in Jerusalem and had permanent resident status before leaving to study in the United States.
The Supreme Court rejected Awad’s legal challenge and rejected the relevance of international law which clearly prohibits the deportation of the population of an occupied territory. Barak wrote the court’s ruling, which the other two judges agreed with. Applying Israeli law, he said Awad’s residency status had expired and he no longer had the right to stay in his home country.
The Israeli government used this precedent to invalidate the Jerusalem residency status of thousands of Palestinians in Jerusalem. This legal framework, which treats the original Palestinian population as migrants, is still used today and significantly restricts Palestinians’ ability to travel, seek education, and work abroad.
These examples – and they are not the only ones – demonstrate Barak’s approach to international law: ignore it when it does not suit your goals or apply a distorted version of it that creates the image of respect of the rule of law and human rights while allowing the illicit practice to continue with certain constraints. This is the approach of enjoying the image of a liberal, human rights-loving judge without directly confronting Israel’s human rights violations.
But for the Palestinians, the consequences have been disastrous. We can see this very clearly in the growing numbers of settlers and settlements, in the normalization of torture and mistreatment of prisoners, in the children and families who have been left homeless because their homes have been demolished, and in the tens of thousands of Palestinians who cannot return to Jerusalem because Israel considers them foreign immigrants who have lost their residency status and not an indigenous population protected by international law.
Some may argue that this balanced approach is the best that can be expected under the circumstances. But this argument means that we should ignore the bigger picture and the suffering of those who were victims of Barak’s decisions.
No legal analysis or political justification can hide or excuse the fact that under Barak’s watch, a sophisticated system of apartheid emerged, as documented by human rights organizations such as Amnesty International, Human Rights Watch, Al-Haq and B’tselem and several specialized United Nations organizations. rapporteurs.
No one truly committed to human rights and the rule of law would have allowed such a brutal system to emerge under their leadership, let alone be its primary legal enabler.
For a long time, Barak’s approach and reputation helped Israel avoid being judged in international courts and tribunals. His appointment as an ad hoc judge at the ICJ is a new iteration of his role as Israel’s legal “bulletproof vest.” There will be no surprises about his decision as it appears he has already decided that the October 7 attacks could qualify as genocide, but not the Israeli attacks and practices, which Barak says are consistent with the international law. . Fortunately, in The Hague, he will only be one judge out of 17.
The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Tel Aviv Tribune.
