Aharon Barak and Israel’s legal illegality

Dr Mazen Masri

The International Court of Justice (ICJ) is holding its first hearing in the proceedings brought by South Africa against Israel on January 11 and 12. In the application submitted on December 29, the South African government argued that the way Israel is conducting its war in Gaza is genocidal in nature, and therefore it is in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.

The Statute of the ICJ allows state parties to choose a person to sit as judge ad hoc if the state does not have a judge of its nationality when the court is dealing with a case to which they are a party. Both states chose to appoint their own judge ad hoc. South Africa selected former Deputy Chief Justice Dikgang Moseneke, while Israel went for its former Supreme Court President Aharon Barak.

It comes as no surprise that the decision to appoint Barak attracted praise from many quarters. The 87-year-old sat as a judge at the Supreme Court for 28 years, 11 of which as its president. His career as a judge was preceded by a three-year stint as the attorney general of Israel (1975-78) and a distinguished academic career at the Hebrew University.

A prolific writer with an international reputation, he has been a sought-after speaker at prestigious Western universities and international forums. Part of his attraction is that, throughout his career, he successfully built a reputation as a Western liberal jurist trying to promote the rule of law and human rights despite the challenges of being in a “rough part of the world”.

This carefully cultivated image and his academic pedigree, in combination with his history as a Holocaust survivor, have bestowed on him the air of a larger-than-life figure, a sort of fearless human rights champion.

Barak will be sitting as a judge in a case in which South Africa will contest the legality of the way Israel is waging its brutal war against the Palestinians, an area in which he has ample experience. After all, the Supreme Court of Israel was the final arbiter of the legality of Israeli practices since the occupation of the West Bank and Gaza in 1967. His appointment as judge ad hoc is a good opportunity to revisit his and the court’s record and how it shaped Israel’s application of international law.

One of the thorniest issues that Barak dealt with as attorney general and Supreme Court judge was Israeli settlements in the West Bank and Gaza. Despite the almost wall-to-wall consensus on the illegality of Israeli settlements, and the long list of international law authorities, which include United Nations Security Council resolutions, UN General Assembly resolutions and one ICJ opinion, the Supreme Court ruled in 1993 that settlements are “non-justiciable”. This means that the court refused to discuss their legality under international law.

The court tempered some of the excesses of the settlement project, mainly to avoid a situation of total lawlessness and chaos, which could undermine government policy and make it harder to defend settlements internationally. However, the rules that the court set out served more than anything to legitimate the whole settlement project. The result is that the settler population ballooned from a few thousand in 1975 to 700,000 in 2023.

A similar pattern could be identified in the cases related to the wall that Israel built in the West Bank. In 2004, the ICJ issued an advisory opinion declaring that the wall was illegal because it violates the human rights of the Palestinian people, including the right to self-determination. But Barak begged to differ.

Under his leadership, the court provided the legal stamp of approval despite the fact that the wall snakes throughout the West Bank, cutting off Palestinians from their lands and significantly restricting their movement. While a few legal challenges were successful in bringing about minor changes to the route because their violation of the rights of the local population was disproportionate, these rulings ignored some important principles of international law. The result is that the whole project of the wall, which slices through villages and neighbourhoods, was legitimated by the court.Under Barak, the Supreme Court also continued rubber-stamping the savage practice of punitive home demolition. First introduced by the British in the Second Boer War (1899-1902) in South Africa, this practice was imported by the British Mandate authorities in an effort to subdue the Arab Revolt in Palestine (1936-39).

The legal basis for this practice was abrogated when Jordan controlled the West Bank between 1948 and 1967, but after it occupied the territories, Israel resurrected the colonial legislation and has used it extensively against the families of Palestinians suspected of being active in resisting the occupation.

The Supreme Court repeatedly rejected the argument that this practice is illegal under international law because it violates the Geneva Convention prohibition on collective punishment. While there were some dissenting views in the court because of the draconian nature of this practice, under Barak’s leadership, it was approved, denying that it was punitive and presenting it as an administrative measure intended to promote security through deterrence.

In a small number of cases, the court decided that demolition is disproportionate and opted for sealing part of the house, but in principle, it never challenged this practice despite its manifest illegality under international law. Again, Barak’s role was to make legal what went against legal norms.

The ruling on the use of torture is probably the case that best exemplifies Barak’s approach of controlling the excesses in order to legitimate and save what is manifestly illegal under international law. The prohibition of torture under international law is absolute. It has attained the status of jus cogens – a fundamental principle of international law that applies in times of war and peace and under all circumstances. Not so according to Barak.

In a 1999 ruling, the Supreme Court upheld the principle of the prohibition of torture, but this prohibition was not absolute. Under Barak’s guidance, it left the door open for the use of torture, or as it was euphuistically called “physical investigation means”, in situations of a “ticking timebomb”. In such cases, the interrogators would not be held liable. He effectively introduced the prohibition and the loophole to circumvent it at the same time.

While there was a marked decrease in cases of torture following this case, the backdoor that Barak introduced turned into a gate. Cases of torture increased significantly within a few years, and it was a widespread practice against Palestinian political prisoners even before the October 7 attacks. Human rights organisations documented cases of sexual violence as torture and torture that led to death. None of those who practised torture was ever prosecuted.

Another example of Barak’s cavalier approach to international law is the case of Mubarak Awad. Like other Palestinians in Jerusalem, Awad was given a permanent resident status according to Israeli law after 1967. After spending some years in the United States, he returned home and started the Palestinian Centre for the Study of Nonviolence in 1983 to promote nonviolent resistance to the occupation.

Awad’s activism drew the ire of the Israeli government, which decided in 1988 to deport him despite the fact that he was born in Jerusalem and held a permanent resident status before travelling to study in the US.

The Supreme Court dismissed Awad’s legal challenge and rejected the relevance of international law which clearly prohibits the deportation of the population of an occupied territory. Barak wrote the decision of the court in which the two other judges concurred. Applying Israeli law, he stated that Awad’s resident status had expired and he had no right to remain in his homeland.

The Israeli government used this precedent to invalidate the Jerusalem resident status of thousands of Palestinians in Jerusalem. This legal framework, which treats the native Palestinian population as migrants, is still being used today, and it severely curtails the ability of Palestinians to travel, seek education and work abroad.

These examples – and they are not the only ones – demonstrate Barak’s approach to international law: ignore it when it does not suit your goals or apply a distorted version of it that creates the image of compliance with the rule of law and human rights while allowing the wrongful practice to continue with some constraints. It is the approach of enjoying the image of a liberal human rights-loving judge without confronting Israel’s human rights violations directly.

For Palestinians, however, the consequences have been dire. We can see this very clearly in the increasing number of settlers and settlements, the normalisation of torture and ill-treatment of prisoners, the children and families who have become homeless because their homes have been demolished, and the tens of thousands of Palestinians who cannot return to Jerusalem because Israel sees them as alien immigrants who lost their resident status and not as a native population protected by international law.

Some may argue that this balancing approach is the best one could expect in the circumstances. But this argument means that we should ignore the big picture and the suffering of those who were on the receiving end of Barak’s rulings.

No legal analysis or political justification can hide or excuse the fact that on Barak’s watch, a sophisticated system of apartheid emerged, as documented by human rights organisations such as Amnesty International, Human Rights Watch, Al-Haq and B’tselem and several UN special rapporteurs.

No one who is truly committed to human rights and the rule of law would have allowed such a brutal system to emerge under their watch, let alone be the main legal enabler.

For a long time, Barak’s approach and reputation helped Israel avoid legal reckoning in international tribunals and courts. His appointment as judge ad hoc to the ICJ is another iteration of his role as Israel’s legal “bulletproof vest”. There will be no surprises about what he will decide as it seems that he has already made up his mind that the attacks of October 7 could be described as a genocide, but not Israeli attacks and practices, which Barak asserts are in line with international law. Luckily, at The Hague, he will be only one judge out of 17.