ISRAEL AT WAR - DAY 142

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Israel tasks ex-Supreme Court chief Aharon Barak to serve at Hague genocide hearings

Appointment of internationally respected Barak, long a right-wing bogeyman, as Israeli representative on panel of judges reviewing Gaza war, welcomed by National Unity, Yesh Atid

Former Supreme Court chief justice Aharon Barak speaks on November 3, 2023, at a press conference with families whose loved ones have been abducted by Hamas terrorists and have been held in Gaza since October 7. (Miriam Alster/FLASH90)
File: Former Supreme Court chief justice Aharon Barak speaks on November 3, 2023, at a press conference with families whose loved ones have been abducted by Hamas terrorists and have been held in Gaza since October 7. (Miriam Alster/FLASH90)

Retired Supreme Court President Aharon Barak, 87, will be Israel’s appointee to the 15-judge panel at the International Court of Justice in The Hague that will this week hear South Africa’s case accusing Israel of genocide in Gaza, Jerusalem announced Sunday.

The Foreign Ministry confirmed Barak’s appointment to The Times of Israel.

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

Beyond the permanent panel of the ICJ, both parties to a case may themselves nominate a judge to join the deliberations. Decisions are made by a simple majority of the presiding judges.

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, a Holocaust survivor, is well-respected internationally and will be seen as anything but an ally of Netanyahu. Over the past year, the Netanyahu government has pushed a judicial overhaul plan aimed at sidelining powers assumed by Israel’s highest court which have been widely attributed to Barak’s tenure — and the retired judge has been vocally critical of the effort.

Barak has long been reviled by many on the hard-right for his activist approach, and his comments against the overhaul led to further scathing criticism from the plan’s supporters. Both pro-overhaul and anti-overhaul demonstrators rallied outside his home multiple times throughout the year.

Related: Ex-top judge Barak: ‘Put me before a firing squad’ if it’ll stop move to tyranny

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

Israel is reportedly seeking to screen before the court a compilation of harrowing scenes of murder, torture and decapitation from the October 7 onslaught, including raw videos from the terrorists’ bodycams, that it has shown, among others, to journalists, international leaders and diplomats in the weeks since the Hamas invasion.

File: This photo shows an exterior view of the Peace Palace, which houses the International Court of Justice, or World Court, in The Hague, Netherlands on February 18, 2019. (AP/Peter Dejong)

According to Kan news, ministers expressed conflicting opinions on the matter in the government’s WhatsApp group on the appointment.

Heritage Minister Amichai Eliyahu of the far-right Otzma Yehudit party said he didn’t believe Barak had the “correct notions on the subject.”

Interior Minister Moshe Arbel (Shas) said, however, that Barak was “a very reasonable choice, in particular for the international arena,” according to the report.

In light of some statements made by ministers on Gaza, some of which are apparently included in South Africa’s case at the ICJ as proof of genocidal intent, Netanyahu appealed to ministers to be wary of their words concerning the war, according to an unsourced Channel 12 report.

“I’m advise you, choose your words carefully, pay close attention to what you say,” he reportedly stated.

War cabinet minister Benny Gantz, leader of the National Unity party, hailed Barak as an “Israeli patriot who’s always answered the call of his country that he loves so much,” and called the decision “right and proper,” in a post on X.

Opposition Leader Yair Lapid, chair of Yesh Atid, wrote on X: “This is not the first time the State of Israel needs the mind, infinite knowledge and unique international status of Justice Aharon Barak. I congratulate him on his appointment and wish him good luck.”

National Unity party MK Gideon Sa’ar, a former justice minister, welcomed the “correct” decision to appoint Barak.

“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, Sa’ar posted.

Yesh Atid MK Karinne Elharrar wrote: “They demonstrated against him, turned him into a national enemy, but in the moment of truth, the government of Israel also understood that this is a knowledgeable legal expert appreciated around the world, and therefore the prime minister chose him.

“I hope that they also asked him for forgiveness,” she added.

Illustrative: Judges at the International Court of Justice at a hearing in the case between Armenia and Azerbaijan, The Hague, Netherlands, January 30, 2023. (AP Photo/Peter Dejong)

Transportation Minister Miri Regev (Likud) said she “personally does not like the appointment,” because Barak, she said, “is not within the consensus.”

Firebrand Likud MK Tally Gotliv expressed her disappointment with the appointment, citing Barak’s ties with the protests against the judicial overhaul.

“The one who went against the government and presented it in a negative light will now represent the country? And this is under the auspices of a right-wing government. Extraordinary,” she wrote on X.

The Movement for Quality Government in Israel wished Barak luck: “Your success is the country’s success.”

“We do not doubt that his great experience, his integrity and the international reputation he has acquired as an authority in the legal field will be a valuable asset to the State of Israel in its most difficult time,” the group said in a statement, adding that politicians that had smeared him should apologize.

In response to the appointment, political commentator Ben Caspit quipped in a post on X, “I was sure they would send Bombach,” referencing a lawyer closely associated with the Likud party.

“Those who insulted and cursed Aharon Barak for a year — and for years — need him… And Barak answers, because he is a democrat, a Zionist and a patriot,” Yedioth Ahronoth columnist Nadav Eyal posted online.

In its application 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 ethnical group.”

The smoke of rockets fired from the Gaza Strip toward Israel lingers above a building on January 7, 2024. (AFP)

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.

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 22,000 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.

Officials from several government ministries and agencies are involved in dealing with the ICJ case, including the Justice Ministry,  Foreign Ministry and Prime Minister’s Office, among others.

Proceedings in the ICJ are not criminal in nature and the defendant is the State of Israel and no individual governmental or military official.

As such, there would be no criminal implications for Israeli officials if the ICJ ruled against Israel, although it could lead to severe diplomatic repercussions, in terms of possible sanctions and other measures the UN and other international bodies could take against the country, according to Prof. Amichai Cohen, an expert in the international law of armed conflict at the Israel Democracy Institute.

One of the concerns for Israel is South Africa’s request for the ICJ to apply “provisional measures” against Israel that might include an order to halt combat operations. South Africa said it was requesting such measures “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.”

Cohen said he did not believe the court would issue an outright order for Israel to halt its military operation, but that it could order Israel to increase the supply of humanitarian aid, fuel and medical supplies.

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