The International Court of Justice (ICJ) is holding its first hearing in the proceedings brought by South Africa against Israel on January 11 and 12. In the application submitted on December 29, the South African government argued that the way Israel is conducting its war in Gaza is genocidal in nature, and therefore it is in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.
The Statute of the ICJ allows state parties to choose a person to sit as judge ad hoc if the state does not have a judge of its nationality when the court is dealing with a case to which they are a party. Both states chose to appoint their own judge ad hoc. South Africa selected former Deputy Chief Justice Dikgang Moseneke, while Israel went for its former Supreme Court President Aharon Barak.
It comes as no surprise that the decision to appoint Barak attracted praise from many quarters. The 87-year-old sat as a judge at the Supreme Court for 28 years, 11 of which as its president. His career as a judge was preceded by a three-year stint as the attorney general of Israel (1975-78) and a distinguished academic career at the Hebrew University.
A prolific writer with an international reputation, he has been a sought-after speaker at prestigious Western universities and international forums. Part of his attraction is that, throughout his career, he successfully built a reputation as a Western liberal jurist trying to promote the rule of law and human rights despite the challenges of being in a “rough part of the world”.
This carefully cultivated image and his academic pedigree, in combination with his history as a Holocaust survivor, have bestowed on him the air of a larger-than-life figure, a sort of fearless human rights champion.
Barak will be sitting as a judge in a case in which South Africa will contest the legality of the way Israel is waging its brutal war against the Palestinians, an area in which he has ample experience. After all, the Supreme Court of Israel was the final arbiter of the legality of Israeli practices since the occupation of the West Bank and Gaza in 1967. His appointment as judge ad hoc is a good opportunity to revisit his and the court’s record and how it shaped Israel’s application of international law.
One of the thorniest issues that Barak dealt with as attorney general and Supreme Court judge was Israeli settlements in the West Bank and Gaza. Despite the almost wall-to-wall consensus on the illegality of Israeli settlements, and the long list of international law authorities, which include United Nations Security Council resolutions, UN General Assembly resolutions and one ICJ opinion, the Supreme Court ruled in 1993 that 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 settlement project, mainly to avoid a situation of total lawlessness and chaos, which could undermine government policy and make it harder to defend settlements internationally. However, the rules that the court set out served more than anything to legitimate the whole settlement project. The result is that the settler population ballooned from a few thousand in 1975 to 700,000 in 2023.
A similar pattern could be identified in the cases related to the wall that Israel built in the West Bank. In 2004, the ICJ issued an advisory opinion declaring that the wall was illegal because it violates the human rights of the Palestinian people, including the right to self-determination. But Barak begged to differ.
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