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Suzie Navot
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For justice, Barak’s dissent at The Hague should have been the Court’s decision

Judge Aharon Barak introduced what South Africa ignored: The October 7 atrocities, the long history of terror against Israel, and a country's right to defend itself
Retired Supreme Court president Judge Aharon Barak sworn in as Israel’s appointee to the bench at the International Court of Justice in The Hague, January 11, 2024. (ICJ)
Retired Supreme Court president Judge Aharon Barak sworn in as Israel’s appointee to the bench at the International Court of Justice in The Hague, January 11, 2024. (ICJ)

Genocide is a shadow over the history of the Jewish people, and it is intertwined with my own personal experience. The idea that Israel is now accused of committing genocide is very hard for me personally, as a genocide survivor deeply aware of Israel’s commitment to the rule of law as a Jewish and democratic state. Throughout my life, I have worked tirelessly to ensure that the object and purpose of the Genocide Convention is realized in practice; and I have fought to make sure that genocide disappears from our lives.

This is one of the final paragraphs in the minority opinion of Justice Aharon Barak, in the decision of the International Court of Justice in The Hague. Justice Barak recounts his personal story as a child who experienced the Holocaust. For him, “genocide” is an extremely grave accusation deeply embedded in his personal life experience, and he takes great care to ensure that it is noted throughout his opinion.

The decision of the International Court of Justice (ICJ) regarding South Africa’s lawsuit and the issuance of provisional measures were received in Israel with mixed emotions. On the one hand, the fact that Israel is not required to cease its fighting or to allow for the return of Gaza residents to their homes can be considered a significant legal achievement. That is particularly true considering the fact that the measures issued by the ICJ are largely ones with which Israel is already in compliance. That is a significant achievement for Israel’s representatives at the Court, who excelled in their arguments under extremely difficult conditions.

On the other hand, the very position of Israel being taken to court under alleged violations of the Convention on Genocide and the judges’ determination that there appears to be evidence that Israel may be committing acts of genocide form a severe reputational blow to Israel in terms of its international standing. Moreover, the absolute disregard of the simple fact that Hamas was killing Jews simply because they were Jewish is unfathomable and painful.

The minority opinion of Israel’s Justice Aharon Barak tells the true story of Israel. This opinion is perhaps the most significant indictment against the ICJ itself, and it contains sharp legal criticism of the court’s position at almost every stage of the decision. The fact that Barak joined the majority opinion on two of the orders issued by the court only strengthens his position as a professional judge. In his words: “I was appointed by Israel; I am not an agent of Israel. My compass is the search for morality, truth, and justice.”

While the Court briefly mentions the immediate context of the lawsuit, namely the Hamas attack on October 7, 2023, Justice Barak directs them to the full picture that they did not address. He writes about the events of October 7 as Israelis know them to be true. He speaks of the Nova Music Festival, where young Israelis were abducted and murdered; about the bodies of women that were mutilated, raped, beheaded, and burned; about more than 1,200 innocent civilians, including infants and the elderly, who were killed in their homes on that day; about those who were kidnapped and taken to the Gaza Strip and of the more than 12,000 rockets fired at Israel since October 7. Justice Barak describes the purpose of Israel’s action against Hamas following the attack, the humanitarian aid that was looted, and the use of Gaza civilians as human shields. This story is entirely absent from the Court’s opinions. In Justice Barak’s view, this context should have played a more central role in the ICJ’s legal analysis of Israel’s actions at this stage of the proceedings.

Moreover, in requests for provisional measures, the required threshold of evidence is very low. The court is allowed to issue such measures if convinced that what is claimed by the requesting party is at least plausible. Barak’s position is that even this threshold of evidence is not met. He argues that the Court’s conclusion is erroneous and was based on the fact that all the information determining the evidence threshold regarding casualties, injuries, and damage to infrastructure comes from the Gaza Health Ministry, controlled by Hamas. These data do not distinguish between civilians and terrorists or between military targets and civilian objects, making it difficult to draw conclusions from them.

As for the statements of President Herzog and Minister Galant, which the court relied on to infer Israel’s “intent” (one of the conditions for proving genocide), Barak writes that these are not sufficiently factual grounds for “plausible” evidence. Both the president and the defense minister made statements clarifying that Israel’s intent is the destruction of Hamas and not the Palestinians in Gaza. Although the court took note of Israel’s statements and steps to ease the situation for the population in Gaza, Barak writes that the court “completely failed” to draw conclusive findings from these statements. In his words: “It is even more surprising that the court did not view any of these measures and statements as sufficient to rule out the existence of a plausible intention to commit genocide.”

The very use of the Genocide Convention in the circumstances of the October 7th war is criticized by Justice Barak. His words on this matter are clear and straightforward: “The Court’s approach opens the door for states to misuse the Genocide Convention in order to curtail the right of self-defense, in particular in the context of attacks committed by terrorist groups.”

If Justice Barak criticizes the Court’s determinations, how does he still align with the majority opinion regarding the two interim orders issued?

His explanation for this matter is relatively simple. The third order he joined relates to the act of incitement to genocide. Barak writes, “I have voted in favor in the hope that the measure will help to decrease tensions and discourage damaging rhetoric.” Regarding the fourth order, dealing with humanitarian aid, he writes that the court reminds Israel that it is a vital international obligation, already existing in the laws of armed conflict. However, even here, Barak did not forget to emphasize the Israeli narrative: “It is regretful that the Court was unable to order South Africa to take measures to protect the rights of the hostages and to facilitate their release by Hamas.”

Our hostages are scattered throughout the length of the opinions. Barak writes that the fate of the hostages is an inseparable part of the military operation in Gaza. He writes that the court itself emphasized that “all parties to the conflict in the Gaza Strip are bound by international humanitarian law,” including Hamas. Barak highlights the court’s statement that the court is “gravely concerned about the fate of the hostages abducted during the attack on Israel on October 7, 2023, and held since by Hamas and other armed groups, calling for their immediate and unconditional release.”

Now, Israel is under international scrutiny in light of the provisional measure that obliges it to submit a report in about a month. We may never know the true contribution of Justice Barak’s opinion to the provisional measures — those issued and those not issued — due to his mere presence, participation, and influence. The name of the court in The Hague is the International Court “of Justice.” What can be said is that, from the standpoint of justice, Justice Barak’s position should have been the majority opinion.

About the Author
Professor Suzie Navot is a professor of constitutional law and the vice president of the Israel Democracy Institute.
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