Netanyahu taps Aharon Barak to represent Israel in ICJ genocide case
Former Supreme Court President Aharon Barak. (Photo: Yonatan Sindel/Flash90)

The government’s choice of one of its biggest opponents has surprised observers and has met with mixed reactions from ministers.

By David Isaac
January 8, 2024

(JNS) — Israel has chosen Aharon Barak, 87, a former president of the Israeli Supreme Court, to sit as its representative on the judges’ panel at the International Court of Justice in the Hague to hear proceedings brought by South Africa against Israel, which the former accuses of violating the Genocide Convention.

The hearings are scheduled for Jan. 11-12. The first day South Africa will present its oral argument. Israel will present on the second day.

The hearings will be devoted to South Africa’s request for “provisional measures” to be brought against Israel, meaning an emergency suspension of Israel’s war against Hamas in Gaza while the court decides the case.

The 15-judge panel will be expanded by two additional judges, one from each side in the case.

The choice of Barak has surprised observers and has been met with mixed reactions from government members as he led Israel’s “constitutional revolution” in the 1990s—In the eyes of Israel’s political right a power grab which has led to a decades-long expansion of the court’s power.

When the Netanyahu coalition introduced its judicial reform plan in January, arguing that it would restore a growing imbalance between the three branches of government, the ensuing battle consumed Israel’s political discourse for the next 10 months, ceasing only with the Hamas attack in October.

During the contest, which saw opponents of reform take to the streets in weekly protests, Barak became a bogeyman of the right, as he helped the opposition undermine the government’s efforts by warning that the reform posed a threat to Israel’s democracy.

Perhaps the most outspoken critic of the choice of Barak to represent Israel at the ICJ has been Knesset member Tali Gottlieb of the Likud, who tweeted on Sunday, “With all due respect, I don’t agree that retired [Supreme Court] President Aharon Barak will be the judge on behalf of the State of Israel at the Hague tribunal, even at the request of Prime Minister Netanyahu.”

She added: “One who came out against the government last year and presented it in such a negative light now represents the country? And under the auspices of a right-wing government? Indescribable.”

According to Kan News, Heritage Minister Amichai Eliyahu of the Otzma Yehudit Party wrote on the government’s WhatsApp group that Netanyahu had asked that Israel’s views be represented at the hearing, but that “I am not sure that the presence of the former president, Aharon Barak, will promote the correct views on the issue.”

Transportation Minister Miri Regev told Kan News, “I wouldn’t choose [Barak]. He is not in the consensus. …There are other professors, maybe not from the right, who could represent the state.”

However, others in the coalition supported the move. Interior Minister Moshe Arbel of the Shas Party, replying to Eliyahu, said that Barak’s appointment was a lesson that at the moment of truth and despite differences of opinion, Israel stands united.

Opposition members, including National Unity Party chairman Benny Gantz and Yesh Atid Party chairman Yair Lapid, also supported Barak’s selection.

South Africa filed charges at the ICJ on Dec. 29 that Israel was violating its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (or “Genocide Convention”), to which it is a signatory.

In its application, South Africa said Israel’s acts “are genocidal in character, as they are committed with the requisite specific intent…to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.”

Israel’s Foreign Ministry denounced the move, saying, “Israel rejects with disgust the blood libel spread by South Africa and its application to the International Court of Justice.”

Israeli Prime Minister’s Office spokesman Eylon Levy said, “In giving political and legal cover to the Oct. 7 massacre and the Hamas human-shield strategy, South Africa has made itself criminally complicit with Hamas’s campaign of genocide against our people.”

The Biden administration also criticized South Africa. “We find this submission meritless, counterproductive, completely without any basis in fact whatsoever,” U.S. National Security Council Spokesperson John Kirby said last week.

Legal observers tell JNS that the court’s decisions are legally binding, but that many nations, including the United States, which have run afoul of the court have ignored its rulings.

The ICJ is the principal judicial organ of the United Nations. Its seat is at the Peace Palace in The Hague in the Netherlands. It deals with legal disputes between states, whereas the International Criminal Court (ICC) prosecutes individuals.

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