The decision to send former Chief Justice Aharon Barak to represent Israel at The Hague's International Court of Justice is nothing short of dramatic. It underscores the extent of the legal and public relations problem our country is in, prompting the government to ask one of its greatest detractors to represent it in the hearing.
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The hearing itself, which will take place this Thursday and Friday following the petition filed by South Africa, is more significant than what Israeli public discourse has made it out to be. In fact, it may be the most dangerous hearing Israel has ever faced. It takes place at the International Court of Justice in The Hague (not the International Criminal Court), based on the 1948 The Convention on the Prevention and Punishment of the Crime of Genocide. Israel has of course signed this convention, which has its roots in World War II and the Holocaust, as well as the article that allows any country to sue even if it is not a direct party to the conflict – as South Africa has done. This is also why Israel is participating in the hearing and not boycotting it, as it has done in the past regarding hearings in the International Criminal Court.
Video: IDF attacks in Gaza during Operation Swords of Iron / Credit: IDF Spokesperson's Unit
The court hears petitions in a full panel of 15 judges from different countries. The hearings themselves last for years, but South Africa also requested a temporary remedy – an order for Israel to stop fighting immediately. The chances of success for such a request are unclear, and the court can also hand down a more lenient ruling instructing Israel to stop actions that endanger civilians, which has the same practical meaning.
Such an order has no direct bearing on Israel, but it could have some countries cite it at the Security Council in their effort to impose military and economic sanctions on Israel. It is also likely that various countries and organizations will see it as confirmation that Israel is committing genocide against Palestinians and use it as a pretext to sever political and economic ties.
This is a dangerous snowball that will certainly be exploited by Israel's enemies in various media and on campuses to create anti-Israeli public opinion. There is a real concern that such pressure could even influence the Biden administration to the point that it restricts sales of weapon systems to Israel and that it could also lead to an investigation in the ICC that could culminate with the prosecution of Israeli leaders and IDF officers involved in the fighting.
This analysis was presented in recent days by the best legal experts in the country to the political-security leadership, alongside a clear recommendation: to send someone with the biggest caliber to The Hague. Alongside the hiring of the British-Jewish lawyer Prof. Malcolm Shaw, who will represent Israel in the hearing, it was decided to send a former justice to sit on the panel of judges that will oversee the proceedings, according to the procedure allowing the defendant state (and also the plaintiff state) to include a judge on its behalf in the panel.
Tapping Barak for this job was a good call for three reasons. First, he is a brilliant jurist who will know how to represent Israel better than anyone else. Second, he enjoys recognition and appreciation in the international judicial system that no other Israeli has. And third, the profound disagreement he has with the government and its leader shows that everyone in Israel is behind him and that does not belong to any part of the political divide.
Barak's challenge will not be simple. South Africa has prepared a serious indictment, relying in part on a host of statements by Israeli public figures who called to destroy / demolish / crush / depopulate Gaza. Israel will argue that these things do not represent its official position, but it will need more: for example, unequivocal clarifications from the prime minister that the proposals laid out by Bezalel Smotrich and Itamar Ben-Gvir to expel Gazan were made without the sanctioning of the government. The US has insisted that the prime minister do this after Israel has enlisted its help to fend off the intense effort against it at The Hague.
Of course, choosing Barak has another dimension to it: No one has suffered like him from such vicious and systematic attacks by government ministers and Knesset members – and by an entire poison machine operating on their behalf, including many journalists. There was probably no one who was attacked with such intensity and bluntness like Barak (except perhaps the second Barak, Ehud), during the judicial reform protests that tore Israel apart last year.
Barak is one of the greatest defenders of the Israeli security establishment and has signed on to countless rulings that legitimized controversial security measures. In a perfect world, those who came out against him – headed by Benjamin Netanyahu, Yariv Levin, Simcha Rothman, and others – would surely ask for forgiveness. But at the very least they should appreciate an elderly Jew, a Holocaust survivor himself, who put everything aside this week and went out to The Hague to defend his country from its enemies.
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