The decision to send Aharon Barak to the International Court of Justice for a hearing is nothing short of dramatic. It shows that the Israeli government believes that it is in such a serious legal and image problem that it is willing to ask someone it has marked as one of its greatest opponents to represent it in the hearing.
GPO
The hearing itself, which will take place on Thursday and Friday this week following the petition filed by South Africa, is more significant than reflected in the public debate in Israel. In fact, it may be the most dangerous debate Israel has ever faced. It is held at the International Court of Justice in The Hague (not the ICC), based on the 1948 Convention on the Prevention of Genocide. Israel, of course, is a signatory to this treaty, which has its roots in World War II and the Holocaust, and it is also a signatory to the clause that allows any country to sue even if it is not a direct party to the conflict – as South Africa has done now. This is also why Israel participates in the hearing and does not boycott it, as it did in the past regarding criminal court hearings.
Prof. Aharon Barak, former President of the Supreme Court, photo: Coco
Take out the heavy guns
The court heard the petitions by a full panel of 15 judges from all over the world. The discussions themselves have been going on for years, but South Africa has also sought temporary relief – an order ordering Israel to stop fighting immediately. The likelihood of this happening is unclear, and the court could also issue a "thinner" order ordering Israel to stop actions that endanger civilians, which have the same practical meaning.
International Court of Justice prosecutor Crimean Khan in The Hague during his visit to the Gaza envelope, photo: Spokesperson's Office for the families of the abductees
Such an order has no direct significance, but in its continuation there will be countries that will demand that the Security Council impose military and economic sanctions on Israel. It is also likely that various countries and organizations will see it as confirmation that Israel is committing genocide against the Palestinians in order to stop political and economic contacts with it. This is a dangerous snowball that will surely be exploited by Israel's enemies in the various media and on campuses to create anti-Israeli public opinion. There is a real concern that such pressure may even affect the US administration, including by restricting arms sales to Israel, and that it may also lead to an investigation at the International Criminal Court in The Hague, at the end of which it will be decided to prosecute Israeli politicians and officers who were involved in the hostilities.
International Criminal Court in The Hague, photo: AP
This analysis was presented in recent days by the best experts in Israel to the political-security leadership, alongside a clear recommendation: to send the heaviest guns to The Hague. In addition to hiring British-Jewish lawyer Prof. Malcolm Shaw, who represented Israel at the hearing, it was decided to send a judge to sit on the panel of judges, according to the procedure that allows the state that is being sued (and the state that is suing) to include a judge on its behalf.
Successful choice
The choice of Barak is successful for three reasons. The first is that he is a prodigy jurist who will know how to represent Israel better than anyone else. The second is that he is recognized and respected in the international legal system that no other Israeli has. And third, because his deep disagreement with the government and with its leader shows that this is an all-Israeli issue that does not belong to one government or another.
Finance Minister Bezalel Smotrich, Israel will have to prove that it disavows his remarks, Photo: Oren Ben Hakon
Barak's challenge will not be simple. South Africa has prepared a serious lawsuit, based, among other things, on a variety of statements by Israeli public figures calling for the destruction/destruction/crushing/exile of Gaza. Israel will claim that these statements do not represent its official position, but it will need more than that: for example, clear clarifications on the part of the prime minister that the proposed policy of Ministers Smotrich and Ben-Gvir to expel the citizens of Gaza is not his opinion and the government's opinion, as demanded by the United States, which Israel is now assisting in a frantic effort to block a possible court decision against it.
The choice of Aharon Barak, of course, also has another aspect – no one like him has suffered from virulent and systematic attacks by members of the government and Knesset, and by an entire poison machine that operated on their behalf, including many journalists. It is doubtful whether anyone has been attacked as forcefully and bluntly as Barak (with the possible exception of the second Barak, Ehud), in an attempt to legitimize the legal legislation that has torn Israel apart over the past year.
Minister of Justice Yariv Levin (Archive) Those who spoke out against Barak – led by Benjamin Netanyahu, Simcha Rotman and Yariv Levin would surely ask for forgiveness, photo: Oren Ben Hakon
Barak is one of the greatest defenders of the Israeli defense establishment, and the one who signed a variety of rulings that legalized controversial security measures. In a civilized world, those who spoke out against him – led by Benjamin Netanyahu, Yariv Levin, Simcha Rothman and others – would certainly ask for forgiveness, but at least they would be grateful to an elderly Jew, a Holocaust survivor himself, who put everything aside and will go to The Hague this week to defend his country from its enemies.
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