Judge Aharon Barak is repeating Israeli propaganda at the ICJ

The International Court of Justice ordered additional provisional measures on March 28 to prevent Israel from committing genocide in Gaza. Judge ad hoc Aharon Barak released a separate opinion on the order on the same day, dissenting on a number of issues.

Upon reviewing the opinion, one might find it necessary to scrutinize its authorship, given the departure from expectations associated with a retired Israeli Supreme Court President. A thorough examination of the opinion reveals challenges in reconciling certain points Barak makes with reality.

Before critiquing Barak’s opinion, I must clarify my stance: I have always approached Barak’s views with skepticism. Despite his acclaim as a transformative figure in Israeli legal circles, I’ve harbored doubts about his rhetoric since my law studies. His frequent use of terms like “democracy” and “human rights” seemed to downplay the harsh realities of occupation. From a critical legal studies perspective, Barak, the face of the Israeli liberal left, embodies a sanitized image of the occupation.

Moreover, Barak’s staunch opposition to the recent judicial overhaul proposed by the current government — which seems to be of a Schmittean nature — raises questions about his consistency and principles. It’s troubling to see someone who opposed authoritarian measures now representing Israel in ways that undermine its democratic integrity.

Barak opened his opinion with this passage: 

“This is the third time that South Africa has come to the Court seeking the suspension of the military operation in the Gaza Strip. It is the third time that it has failed. The Court has once again rejected South Africa’s main contention and refrained from ordering the suspension of the military operation. It is my hope that South Africa will cease its unbecoming attempts to enter the Great Hall of Justice through the side door of provisional measures and let the Court proceed to the merits of the case, where the true sanctuary of justice lies.”

It is impossible to ignore the elitist undertones this passage echoes. Barak’s apparent detachment regarding the ceasefire of the current war on Gaza not only inflicts harm upon Palestinians but also poses risks to Israel itself, suggesting a perspective that transcends the confines of the “Great Hall of Justice.” It appears that while physically present at the ICJ, Barak’s mindset remains anchored in the illusory “Hall of Justice” symbolized by Israel’s Supreme Court. This institution, often serving as a veil obscuring the realities of occupation, Israeli impunity, and settler terrorism, proves not just to be ineffective but detrimental.

Barak moves on to criticize South Africa and the ICJ itself, for it has “regrettably allowed South Africa to do so by entertaining its requests for provisional measures beyond the confines of the Genocide Convention (para. 5).”

Barak also argues that “regulating the conduct of hostilities falls outside the Court’s jurisdiction, which is limited to the Genocide Convention. The Court does not have jurisdiction to deal with possible violations of international humanitarian law per se.” This strikes me as an updated version of legal formalism. You would not think that Barak is a formalist. In fact, Barak was fiercely attacked by the current government for his “anti-democratic” judicial review doctrine, which the judicial reform is trying to reverse.

He then continues to say that “the Court’s reasoning today is far removed from the Genocide Convention and based primarily on humanitarian considerations. The plausibility analysis has gone from thin to essentially non-existent, and the central question of intent has completely disappeared (para. 6).” A few remarks are warranted in this regard.

First, Barak assumes that genocide, which can be executed through physical and mental harm, has nothing to do with International Humanitarian Law (IHL), the framework of law that regulates the conduct of war, where, surprisingly, physical and mental harm is prevalent. Now I see why he made that point — Barak believes the Genocide Convention is “an excuse” in the first place and is irrelevant. But if it was relevant, Barak also argues that South Africa is a “micromanager of an armed conflict” that “only” caused the death of more than 32,000 thousand people. Thus, he implies that invoking the Genocide Convention, a crime that is extremely difficult to prove, is South Africa’s way of micromanaging conduct that far exceeds any reasonable conduct by a presumed democracy.

Second, the intent element gained further support, following Israel’s clear intention of knowingly preventing the passing of humanitarian aid. If anything, the question of intent is now far less disputed than it was a month ago when the ICJ still granted part of the provisional measures for finding that there is a plausible reason to believe that Israel is committing genocide. 

In any case, Barak’s attempt to artificially separate IHL violations and the Genocide Convention is doomed to fail. It is crucial to bring into account the latest Human Rights Council report by Special Rapporteur Francesca Albanese released on March 25. The report concludes that “there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met” and that “in the latest Gaza assault, direct evidence of genocidal intent is uniquely present.” The report also presented the case that Israel distorted the laws of war to “conceal genocidal intent” by altering “the balance struck by IHL between civilian protection and military necessity, as well as the customary rules of distinction, proportionality and precaution.”

Barak also argues that the Court is “intervening in an armed conflict between Hamas and Israel (para. 7).” This remark is made in bad faith at best. Barak knowingly used the word “intervening” as a means to delegitimatize the ICJ. But if Barak was truly worried about intervention of any sort, he would have addressed the illegitimate and unlawful U.S. intervention in favor of Israel. In contrast, the ICJ’s intervention is a lawful intervention that seeks to achieve the primary purpose of its existence in the first place. Moreover, the U.S.’s intervention focuses on supplying arms, which seek to further cause harm and damage despite “mounting alarm” over Israel’s conduct. The ICJ’s intervention will not only minimize such harm but will seek to also alleviate the harm Israel has caused to itself. 

In paragraph 8, Barak expresses sorrow over the humanitarian crisis in Gaza but maintains his stance against a ceasefire. However, a ceasefire is the minimum needed to address this crisis, benefiting both Gaza and Israel. To express sympathy yet reject such a crucial step undermines the sincerity of his statements. 

Barak’s concern in paragraph 10 about the ICJ’s departure from law into politics is ironic, given his own political involvement. Despite being a prominent figure opposing judicial reforms, he represents a government striving to undermine the rule of law which he himself opposed. While acknowledging the political nature of international affairs and the ICJ’s approach, it is paradoxical for Barak to accuse others of politicization. His history of prioritizing politics over law, evident in issues like settlements and human rights abuses as well, undermines his credibility in such criticisms. 

In paragraphs 13 and 14, Barak pulls another uncanny formalistic take on the law by arguing that while he does “not doubt that the humanitarian situation in Gaza has worsened” he still fails “to see how this constitutes a ‘change in the situation’ within the meaning of Article 76 (1) of the Rules of Court.” It is hard to take Barak seriously when he suggests that despite worsening conditions Israel has engineered, the situation hasn’t changed because starvation remains the main issue — albeit he presents starvation as an “accusation” and not as an accurate description of the facts.

There is also a serious problem with what Barak considers unreliable sources of fact. While he takes the Israeli sources at face value, he discredits, without any good reason, other non-Israeli sources. For example, in paragraph 21, he discredits info based on the Integrated Food Security Phase Classification Global Initiative, a UNICEF press release, and an OCHA daily report, which have no apparent reason — at least on its face — to lie. Israel, in contrast, has disseminated fierce propaganda since the beginning of the assault on Gaza. In paragraph 27 he similarly questions the death toll reported by the “Hamas-run Ministry of Health,” disregarding the fact that these numbers were confirmed by other sources. In fact, there are sources that claim that the real death toll is likely higher than what the “Hamas-run Ministry of Health” reports.

The last part in Barak’s opinion is also problematic, to say the least. For example, in paragraph 34, Barak mentions that “the war in Gaza is Israel’s second war of independence. Israel’s very existence was imperiled on 7 October 2023.” While there is no doubt that the October 7 attacks were brutal and constituted crimes against humanity, Barak seems to imply that these attacks constituted genocide. While he did not specifically say that, this conclusion remains a speculation. What remains to be true, is the current assault against Gaza at least constitutes a plausible case of genocide, according to the ICJ.

Barak’s opinion ultimately reflects a troubling politicization of his role as a judge. Rather than upholding professional and moral legal standards, he aligns himself with mainstream Israeli narratives, resembling a propaganda mouthpiece in the ICJ. While his ultimate verdict was foreseeable, his reasoning lacks professionalism and integrity. This departure from expected judicial conduct raises questions about Barak’s motivations and commitment to justice.