Smotrich: Putting the keys in the hands of Barak is a mistake

As allies fume, Netanyahu defends tapping right-wing bogeyman Barak for ICJ case

Premier reportedly tells faction that decision was made in a hurry, noting international standing of jurist whose decisions were targeted with government’s judicial overhaul bid

Right-wing Israelis attend a rally in support of the government's planned judicial overhaul and to protest against former Supreme Court president Aharon Barak, outside Barak's home in Tel Aviv, May 4, 2023. (Avshalom Sassoni/Flash90)
Right-wing Israelis attend a rally in support of the government's planned judicial overhaul and to protest against former Supreme Court president Aharon Barak, outside Barak's home in Tel Aviv, May 4, 2023. (Avshalom Sassoni/Flash90)

Long reviled by the political right, former Supreme Court president Aharon Barak’s appointment by Israel as its judge in a genocide hearing at The Hague has raised eyebrows, and, in some cases, ire, within the ruling coalition, putting Prime Minister Benjamin Netanyahu on the defensive over the choice on Monday.

Barak was named Sunday as Israel’s appointee to a 15-judge panel at the International Court of Justice, which is set this week to hear a case brought by South Africa accusing Israel of genocide in Gaza. The choice came as somewhat of a surprise, given the government’s efforts to roll back powers assumed by Israel’s highest court which have been widely attributed to Barak’s tenure — and the retired justice’s vocal criticism of the overhaul and its champions.

A number of coalition politicians expressed opposition to Barak’s appointment following the announcement, including Finance Minister Bezalel Smotrich, who distanced himself from the decision Monday.

“Putting the keys in the hands of Aharon Barak, who is an honorable man, is a mistake,” Smotrich told reporters ahead of his Religious Zionism party’s faction meeting in the Knesset. “This is a decision made by the prime minister without consulting us.”

Netanyahu told his own Likud faction Monday that Israel did not have much time to make the decision and defended the appointment of Barak as “proper,” the Kan public broadcaster reported.

“He’s a Holocaust survivor with international standing,” he said, according to the report.

Netanyahu also told his party’s lawmakers that he had looked into the possibility of nominating an American judge, the Ynet news site reported, without naming the jurist.

Former Supreme Court chief justice Aharon Barak speaks at a conference at the then-Interdisciplinary Center in Herzliya, on January 2, 2018. (Flash90)

Barak’s name had been suggested by the International Department of the State Attorney’s Office, backed by Attorney General Gali Baharav-Miara and was personally approved by Netanyahu, Channel 12 news reported.

Other candidates were considered for the position, but Barak was picked due to his international standing, an unnamed source with knowledge of the deliberations told the Walla news site.

Barak, who served on the Supreme Court from 1978 to 2006, including the last 11 years as president, has long been reviled by many on the hard right for what critics say was an overly activist approach, including overseeing an expansion of the court’s powers to review Knesset laws and government decisions.

The government’s attempts to overhaul the judiciary last year were largely centered on stripping the court of those powers, and the 87-year-old was thrust into the spotlight as the legislative effort roiled the nation, leading him to eventually speak out against the plans.

Prime Minister Benjamin Netanyahu and then-Supreme Court president Aharon Barak at a September 1998 Supreme Court ceremony marking 50 years of the Israeli court system. (GPO via Wikipedia)

Reacting to the choice of Barak, Religious Zionism MK Simcha Rothman, largely seen as an architect of the overhaul, tweeted simply, “My silence is deafening.” The quip elicited guffaws online.

Others were more verbose.

“Netanyahu is slighting his voters,” Likud MK Tally Gotliv charged, in an angry rant on the Knesset Channel. “Netanyahu with this decision has humiliated the right, humiliated his voters. He has no right.”

During the faction meeting, Gotliv also complained to Netanyahu over the fact that the rest of the party was not consulted, Ynet reported.

Transportation Minister Miri Regev, also a member of Likud, told Kan that “I would not have chosen him. He’s not a consensus figure.”

Likud MK Tally Gotliv attends a meeting of the Knesset Foreign Affairs and Defense Committee on September 26, 2023. (Chaim Goldbergl/Flash90)

But she added that she understood the premier was rising above partisanship with the pick. “It shows the prime minister is not interested in politics, but is interested in the good of the country,” she said.

The choice of Barak was widely praised by centrist and dovish figures.

“At the moment of truth, the incitement, the defamation and delegitimization [of Barak] gave way to the international status, the good name acquired over decades, the professionalism” of the retired judge, said National Unity party MK Gideon Sa’ar, a former justice minister.

Under ICJ rules, parties to a case may nominate a judge to join the panel’s permanent bench on an ad hoc basis. Decisions are made by a simple majority of the presiding judges.

South Africa will present its case at The Hague on Thursday, followed by Israel on Friday.

Pro-Palestinian, anti-Israel protesters wave Palestinian flags and chant slogans during a demonstration in central London on January 6, 2024, calling for a ceasefire in the war in Gaza. (HENRY NICHOLLS / AFP)

In the application it filed last week, South Africa accused Israel of actions during its war against Hamas in Gaza that are “genocidal in character, as they are committed with the requisite specific intent… to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial, and ethnic group.”

At least part of its claim is based on statements made by Israeli politicians in the wake of Hamas’s October 7 massacres in southern Israel,  including a suggestion by Minister Amichai Eliyahu that Israel could drop a nuclear weapon on Gaza.

On Sunday, the Otzma Yehudit lawmaker said he did not believe Barak had the “correct notions on the subject,” Kan reported.

Israel is a signatory to the Genocide Convention adopted by the United Nations General Assembly in 1948 and is therefore subject to the jurisdiction of the ICJ, a UN organ, and its rulings.

Under the terms of the convention, Israel is obligated to send representatives to the court following the submission of a filing against it, though it has dismissed the South African charge as a “blood libel.”

Palestinians flee the IDF ground offensive in the central Gaza Strip, heading south through Deir al Balah, January 5, 2024. (AP Photo/Adel Hana)

Israel declared war on Hamas after the terror group burst across its southern border from Gaza on October 7, slaughtering some 1,200 people — mostly civilians who were massacred amid horrific acts of brutality — and kidnapping more than 240 others.

It rejects any assertion that it is targeting civilians or engaged in anything other than a campaign for its security. Israel says it is making an effort to avoid harm to civilians while fighting a terror group embedded within the civilian population. It has also long accused Gaza-based terror groups of using Palestinians in the Strip as human shields, operating from sites, including schools and hospitals, which are supposed to be protected.

The Hamas-run health ministry in Gaza has claimed that since the start of the war, more than 23,000 people have been killed, mostly civilians. These figures cannot be independently verified and are believed by Israel to include some 8,500 Hamas fighters, as well as civilians killed by misfired Palestinian rockets. Another estimated 1,000 terrorists were killed in Israel during the October 7 onslaught.

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