Former president of the Supreme Court Aharon Barak will be the judge on Israel’s behalf at the International Court of Justice in The Hague. Prime Minister Benjamin Netanyahu has confirmed the appointment. Barak will sit on the panel of judges in the proceedings instituted by South Africa against Israel. South Africa alleges violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide in relation to Palestinians in the Gaza Strip. Israel is a signatory to the convention, which was adopted by the United Nations General Assembly in 1948.
The hearing will take place on Thursday and Friday of this week. Israel will be represented by British lawyer Malcolm Shaw. The hearing will be broadcast live via the court’s website, as is customary.
Barak will be the sixteenth judge on the panel, which besides him comprises fifteen judges from the US, Russia, China, Somalia, Slovakia, France, Morocco, Lebanon, Japan, India, Brazil, Australia, Uganda, Jamaica, and Germany. South Africa is also entitled to nominate a judge to the panel.
Barak, 87, was a justice of the Supreme Court of Israel from 1978 to 2006, serving as president of the court from 1995. He was Israel’s attorney general from 1975 to 1978, before which he was an academic at the Hebrew University of Jerusalem. He was awarded the Israel Prize in jurisprudence in 1975. He currently lectures at Reichman University at Yale Law School in the US. He is considered the father of the "judicial revolution" in which the Supreme Court, sitting as the High Court of Justice, decided that Israel’s Basic Laws gave it the authority to nullify legislation inconsistent with those laws. The judicial overhaul program of current Minister of Justice Yariv Levin is largely intended to reverse the effect of that revolution. Barak has been a target of demonstrations and vilification by supporters of the current government’s plans.
Barak was born in Kovno (Kaunas), in Lithuania. In 1941, after the Nazi occupation of Lithuania, he was smuggled out of the Kovno ghetto by a farmer who hid him under a load of potatoes. The family eventually migrated to then Palestine in 1947.
South Africa alleges that "acts and omissions by Israel . . . 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"; that ,since 7 October 2023 in particular, Israel "has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide"; and that "Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza."
South Africa’s application to the court requests that it should indicate provisional measures in order to "protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention" and "to ensure Israel’s compliance with its obligations." In other words, South Africa is asking the court to order Israel to end its military operation against Hamas in the Gaza Strip, which began in response to the attack on southern Israel by Hamas on October 7 last year in which some 1,200 people, mostly civilians, were killed and some 240 were taken hostage.
South Africa charges that Israel has used indiscriminate force, and forcibly expelled residents from their homes. In a detailed complaint, South Africa cites the harm caused to Gaza's residents, including 21,000 killed. The charges refer to reports by the World Health Organization on the dangers of starvation and IDF operations focusing on civilian centers including courts, museums and mosques.
The danger confronting Israel is that the court will issue an order that will limit its activities in the Gaza Strip in the fight against Hamas. The court does not impose sanctions, but it may turn to the UN Security Council to request enforcement. However, in the UN Security Council, the US has a right of veto, in contrast to its power in the ICJ, where it has one of 15 judges.
Published by Globes, Israel business news - en.globes.co.il - on January 7, 2024.
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