Israel’s former Supreme Court President, Aharon Barak, has been appointed as an ad hoc judge at the International Court of Justice (ICJ) genocide hearing. The hearing, which commenced on January 11 and 12, involves South Africa’s legal proceedings against Israel, arguing that Israel’s actions in Gaza constitute genocide and are in violation of international law. Barak’s appointment has attracted attention due to his extensive experience as a judge and his reputation as a Western liberal jurist championing the rule of law and human rights.
Barak’s career spans 28 years as a judge, including 11 years as the president of the Supreme Court. Prior to his judicial role, he served as Israel’s attorney general and had a distinguished academic career. He is widely respected for his legal expertise and has been sought after as a speaker at prestigious international forums and universities.
However, Barak’s appointment raises questions about his record and its impact on Israel’s application of international law. One controversial issue during Barak’s tenure was the legality of Israeli settlements in the West Bank and Gaza. Despite the consensus on the illegality of these settlements under international law, the Supreme Court ruled in 1993 that they were “non-justiciable,” refusing to discuss their legality. This ruling has been criticized for legitimizing the settlement project, leading to a significant increase in the settler population.
The court’s approach to the wall built by Israel in the West Bank also drew criticism. In 2004, the ICJ issued an advisory opinion declaring the wall illegal, as it violated the human rights of Palestinians. However, under Barak’s leadership, the Supreme Court provided legal approval for the wall, leading to its legitimization and restricting Palestinian movement.
The court’s endorsement of punitive home demolitions, a practice used against families of Palestinians suspected of resisting the occupation, further raised concerns. Despite the violation of the Geneva Convention prohibition on collective punishment, the Supreme Court, under Barak’s leadership, approved this practice, presenting it as an administrative measure for security purposes.
Barak’s approach to international law was also evident in the court’s ruling on the use of torture. While international law prohibits torture, Barak’s Supreme Court upheld the principle but introduced a loophole, allowing for the use of torture in specific cases. This decision resulted in an increase in cases of torture against Palestinian political prisoners.
Another notable case highlighting Barak’s approach was the deportation of Mubarak Awad, a Palestinian activist promoting nonviolent resistance to the occupation. Despite international law’s prohibition on deporting the population of an occupied territory, Barak’s court dismissed Awad’s legal challenge and invalidated the Jerusalem resident status of thousands of Palestinians.
Critics argue that Barak’s approach to international law has enabled the emergence of a sophisticated system of apartheid in Israel, leading to human rights violations against Palestinians. Human rights organizations and UN special rapporteurs have documented these violations.
Barak’s appointment as judge ad hoc at the ICJ raises concerns about the objectivity of his decisions. It is anticipated that he will support Israel’s position, asserting that Israeli actions comply with international law. However, as one judge out of 17, Barak’s influence will be limited.
In conclusion, Barak’s extensive legal career and reputation as a Western liberal jurist have made him a prominent figure. However, his record raises questions about his approach to international law and its impact on Israel’s actions. His appointment as ad hoc judge at the ICJ genocide hearing has sparked debate about his role as Israel’s legal “bulletproof vest.”
