The International Court of Justice (ICJ) has commenced its initial hearing for the case brought forward by South Africa against Israel on January 11 and 12. The South African government claims that Israel's conduct in the Gaza war amounts to genocide, violating its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.
Under the ICJ Statute, state parties can appoint a judge ad hoc if their nationality is not represented in the court during a relevant case. In this instance, both South Africa and Israel appointed their own judges ad hoc: Dikgang Moseneke for South Africa and Aharon Barak for Israel.
Barak, the former Supreme Court President of Israel, has received acclaim for his extensive legal career and contributions to human rights. However, his legacy has been scrutinized in relation to his rulings on contentious issues, such as Israeli settlements in the West Bank and Gaza.
Despite widespread international consensus on the illegality of these settlements, the Supreme Court, led by Barak, ruled in 1993 that the issue was "non-justiciable," refusing to address their legality under international law. This stance, while attempting to mitigate some excesses, inadvertently legitimized the settlement project, resulting in a substantial increase in the settler population.
Similarly, in cases related to the construction of the wall in the West Bank, Barak's court provided legal approval, contradicting an advisory opinion by the ICJ declaring the wall's illegality. The court's rulings often served to legitimize the entire project, ignoring key principles of international law.
Barak's leadership also saw the continuation of punitive home demolitions and a nuanced approach to the prohibition of torture. While upholding the principle against torture, the court, under his guidance, introduced exceptions, allowing for "physical investigation means" in specific circumstances. This approach led to an increase in torture cases, with no prosecutions for those responsible.
One notable case reflecting Barak's approach to international law involved the deportation of Mubarak Awad, a Palestinian activist. The court dismissed Awad's legal challenge, setting a precedent that undermined the resident status of thousands of Palestinians in Jerusalem.
In essence, Barak's approach to international law has been criticized for selectively applying or distorting it to align with certain goals, while maintaining an image of compliance with human rights and the rule of law. For Palestinians, the consequences have been severe, contributing to the expansion of settlements, normalization of torture, and restrictions on movement and rights.
While some argue that Barak's balancing approach was pragmatic given the circumstances, critics assert that it disregards the broader impact and suffering experienced by those affected by his rulings. His role as judge ad hoc in the ICJ case adds another layer to his legacy, prompting concerns about impartiality and potential bias in favor of Israel.
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