Ex-Supreme Court head: Genocide more than just a word for me

Justice Barak: ICJ ruling based on scant evidence; Ugandan judge: Legal case a ‘desperate bid’

Two justices issue dissenting opinions to court’s finding ‘plausible’ South African concerns of genocidal acts; Barak: Pretoria wrongly sought to impute the crime of Cain to Abel

Retired Supreme Court President Aharon Barak sworn in as Israel’s appointee to the bench at the International Court of Justice in The Hague, January 11, 2024 (ICJ)
Retired Supreme Court President Aharon Barak sworn in as Israel’s appointee to the bench at the International Court of Justice in The Hague, January 11, 2024 (ICJ)

Israeli Justice Aharon Barak, who served on the panel of the International Court of Justice in the Gaza genocide case, issued his dissenting opinion Friday to most of the court’s decisions in the case, including the ICJ’s call for Israel to take preventive measures to prevent genocide in the Gaza Strip.

Along with Uganda’s Julia Sebutinde, Barak was one of only two judges to oppose the court’s assertion that some Israeli actions in the war against Hamas may violate the Genocide Convention and its order for Israel to ensure they do not.

Barak voted in favor of two measures included in the decision: requiring Israel to do everything “within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip,” and ordering “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”

The court decision, made 15-2, said there was “plausibility” to South Africa’s claims that Palestinians require protection from genocide. It said numerous and highly inflammatory comments made by some senior Israeli officials, which could be interpreted as an endorsement of deliberately harming civilians, gave plausibility to South Africa’s allegations that Israel has genocidal intent against Palestinians in Gaza in the current conflict.

However, the court did not take the action most desired by South Africa and feared by Israel — that of ordering an immediate, unilateral ceasefire which would have stymied the war effort and indicated that the court believes genocide is actively taking place.

In his separate opinion, Barak criticized South Africa for focusing on Israel instead of Hamas for carrying out the October 7 terror onslaught that sparked the war in Gaza, saying it “wrongly sought to impute the crime of Cain to Abel.”

Retired Supreme Court President Aharon Barak is sworn in as Israel’s appointee to the bench at the International Court of Justice in The Hague, January 11, 2024 (Screen grab)

He also noted his own experience as a Holocaust survivor.

“Genocide is more than just a word for me; it represents calculated destruction and human behavior at its very worst,” Barak wrote. “It is the gravest possible accusation and is deeply intertwined with my personal life experience.”

Read: Justice Aharon Barak’s full dissenting opinion at the ICJ

The retired Israeli Supreme Court chief said that “the idea that Israel is now accused of committing genocide is very hard for me personally, as a genocide survivor deeply aware of Israel’s commitment to the rule of law.”

Barak touted Israel’s commitment to adhering to international law during military operations and argued that the basis for reviewing Israel’s actions in Gaza was international humanitarian law, not the Genocide Convention.

Israeli army troops drive through a dirt road along the border with the Gaza Strip in southern Israel on January 25, 2024. (JACK GUEZ / AFP)

He said the court accepted the assertion it was plausible that Palestinians need protection from acts of genocide based on “scant evidence.”

Barak argued there was little factual basis for such a conclusion, based apparently on the high death toll and inflammatory statements by some Israeli officials.

“I strongly disagree with the Court’s approach regarding plausibility and, in particular, I disagree on the question of intent,” he said, noting Israeli’s many efforts made to protect civilians.

While it was “concerning that certain Israeli officials have used inappropriate and degrading language,” and while this “will have to be investigated by the competent Israeli authorities… to infer an intent to commit genocide from these statements, which were made in the wake of horrific attacks against the Israeli population, is plainly implausible,” Barak argued.

He said the court “fails to give a complete account of the situation which has unfolded in Gaza” since October 7 and “has vowed to ‘repeat October 7 again and again.’ Hamas is thus an existential threat to the State of Israel, and one that Israel must repel.”

Noting that “the State of Israel was brought before this court as its leadership, soldiers and children processed the shock and trauma of the attack of 7 October” and as “an entire nation trembled and, in the blink of an eye, lost its most basic sense of security,” he said that “the immediate context in which South Africa’s request was brought to the court should have played a more central role in the court’s reasoning.”

Barak added that it is “doubtful whether South Africa brought this dispute in good faith,” noting that when South Africa voiced its initial concerns, “Israel replied with an offer to engage in consultations at the earliest possible opportunity. South Africa, instead of accepting this offer, which could have led to fruitful diplomatic talks, decided to institute proceedings against Israel before this Court.”

South Africa’s Foreign Minister Naledi Pandorthe, left, attends the session of the International Court of Justice, or World Court, in The Hague, Netherlands, Friday, January 26, 2024. (AP Photo/Patrick Post)

Barak called it “surprising” that the court noted Israel’s actions to alleviate the difficult humanitarian conditions in Gaza, “but then it completely failed to draw conclusions from these statements when examining the existence of intent.” He said it was “even more surprising that the court did not view any of these measures and statements as sufficient to rule out the existence of a plausible intent
to commit genocide.”

Judge Sebutinde, in her dissent, argued that “South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel and of which the Applicant complains, were committed with the necessary genocidal intent, and that as a result, they are capable of falling within the scope of the
Genocide Convention.”

File: Judge Julia Sebutinde in 2016 (Video screenshot; used in accordance with Clause 27a of the Copyright Law)

She added that “the Applicant has not demonstrated that the rights it asserts and for which it seeks protection through the indication of provisional measures are plausible under the Genocide Convention.”

Read: Justice Julia Sebutinde’s full dissenting opinion at the ICJ

Sebutinde said the failure to reach a political solution to conflict “may sometimes lead them to resort to a pretextual invocation of treaties like the Genocide Convention, in a desperate bid to force a case into the context of such a treaty, in order to foster its judicial settlement… In my view, the present case falls in this category.”

She said a careful review of Israel’s war policy “demonstrates the absence of a genocidal intent,” though she stressed that Israel is bound by international law in its conduct of the war.

“Unfortunately, the scale of suffering and death experienced in Gaza is exacerbated not by genocidal intent, but rather by several factors, including the tactics of the Hamas organization itself which often entails its forces embedding amongst the civilian population and installations, rendering them vulnerable to legitimate military attack,” she said.

As for the statements of Israeli officials who used inflammatory language, or made comments seen as minimizing the need to protect civilians, Sebutinde argued that taken in context, “the vast majority of the statements referred to the destruction of Hamas and not the Palestinian people as such”; that “certain renegade statements by officials who are not charged with prosecuting Israel’s military operations were subsequently highly criticized by the Israeli government itself; and that “more importantly, the official war policy of the Israeli government, as presented to the court, contains no indicators of a genocidal intent.”

Jeremy Sharon contributed to this report.

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