Netanyahu’s allies spent years slandering the man now tasked with cleaning up their mess
Netanyahu’s allies scapegoated the judge and human rights expert for years. Now, they need him at The Hague.
Left: A pro-Palestinian protest in front of The Hague on Oct. 18, 2023. Right: Israeli Prime Minister Benjamin Netanyahu and Supreme Court Chief Justice Aharon Barak meet in Jerusalem on Oct. 28, 1997. Photo by Roger Anis/Getty Images; MENAHEM KAHANA/AFP POOL/AFP via Getty Images
Former Israeli Supreme Court President Aharon Barak gave three television interviews early last year. In them, he expressed concern about the Netanyahu government’s plans to overhaul the judiciary. As the new government ramped up its rhetoric against Barak and his legacy, he issued stark warnings of the impact that the proposed reforms would have on Israeli democracy.
Though long retired, Barak had become a right-wing symbol of judicial activism, court overreach and leftists who use the cover of “human rights” to strip entitlements from more traditionalist Israelis. One Knesset member from Netanyahu’s party accused Barak of orchestrating efforts to block judicial overhaul; another proclaimed that Barak should be prosecuted and jailed for an “attempted coup.” Right-wing protestors even held a demonstration against the 86-year-old retiree in front of his home, calling him a criminal.
Exactly one year later, on Jan. 7, 2024, Israeli media reported that Prime Minister Benjamin Netanyahu had approved the appointment of Barak to serve as Israel’s representative on an International Court of Justice panel hearing a case accusing Israel of genocide.
Netanyahu found it politically expedient to let his allies turn Barak into a right-wing rallying cry. Those same political considerations are to blame for his willingness to allow far-right ministers to make provocative statements and shape the discourse on Gaza’s political future. After months of enduring one far-right incitement campaign, Barak has now been tasked with handling the reputational repercussions of another.
A voice for human rights
Having held Israel’s highest judicial post from 1995 to 2006, Barak is an internationally respected jurist and renowned human rights expert. As Supreme Court president, he is credited with initiating what is often referred to as Israel’s “judicial revolution.” Following the Knesset’s passage of two Basic Laws enshrining individual rights in the 1990s, Barak led a majority of judges to rule that the court had the power to strike down Knesset legislation that violated those rights.
Barak is a true professional, not a propagandist — a sane choice to represent Israel at the ICJ as the country faces international scrutiny over its war in Gaza. As a Holocaust survivor, his credibility to refute the charges is bolstered by him having survived a genocide himself. His outspoken and pointed criticism of the Netanyahu government no doubt enhances his credibility as an independent legal voice.
But Netanyahu’s choice to tap Barak understandably sparked ire from those to Netanyahu’s right. For months, Netanyahu stood by as surrogates and supporters slandered Barak as an enemy of the state. Now, his refusal to reign in his allies’ bombastic rhetoric toward Palestinians in Gaza has made Barak’s task at The Hague all the more challenging.
Defining genocide
South Africa, which submitted the case against Israel, is set to present its arguments to the ICJ on January 11, with Israel to respond the next day. Both are parties to the 1948 Genocide Convention, which obligates countries not to commit genocide.
Referencing the definition of genocide as “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group,” South Africa’s 84-page ICJ filing claims that Israel has created conditions for Palestinians in Gaza “calculated to bring about their physical destruction.” Calling on the court to order Israel to stop its war in Gaza, the document references the high Palestinian casualties, the destruction in Gaza, restrictions on humanitarian aid, and statements by Israeli officials that allegedly incite genocide.
South Africa is hardly a neutral party acting out of genuine concern for Palestinians. It maintains robust security, diplomatic, and economic relations with Iran, supports the Islamic republic in international fora, and has ties with Hamas. Hamas officials even recently attended a ceremony honoring Nelson Mandela in Cape Town. In line with these allegiances, South Africa has long been a diplomatic adversary of Israel. Its ICJ filing places full responsibility for the crisis in Gaza at Israel’s feet, without addressing Hamas’ deliberate endangerment of Palestinians, misappropriation of aid, use of civilian infrastructure for military purposes, and other activities that complicate efforts to minimize the war’s impact on innocents.
South Africa’s biases do not inherently absolve Israel of the crime with which it is charged, or make Barak’s task at The Hague any easier. Given that intent is a key component of the U.N. genocide definition, South Africa has included as evidence quotes from Israeli leaders that it alleges express “genocidal intent.”
The devil in the details
Many of the quotes arguably fall short of that threshold, such as Netanyahu referring to Hamas as “bloodthirsty monsters” and President Yitzhak Herzog emphasizing broad support for Hamas among Palestinians. Others serve South Africa’s case more effectively, including Heritage Minister Amichai Eliyahu’s call to drop a nuclear bomb on Gaza, Agriculture Minister Avi Dichter referring to the war as “Gaza’s Nakba”, and then-Energy Minister (now Foreign Minister) Yisrael Katz tweeting that Gazan civilians should “leave the world.”
Netanyahu condemned Eliyahu’s outlandish nuclear threat and nominally suspended him from cabinet meetings. But in the interest of preserving his government and not upsetting his base, he has largely turned a blind eye and allowed his ministers to make proclamations that appease hard-right voters and sound benign to most Israelis, but are diplomatically unhelpful at best and incitement at worst.
Netanyahu’s priority of appeasing the right has also led to political stances that further complicate Israel’s wartime public diplomacy. Israel’s policy of not allowing water, fuel or other aid into the Strip at the start of the war (a posture it abandoned under U.S. pressure, to the far-right’s chagrin) appears frequently in South Africa’s ICJ filing.
Netanyahu’s unwillingness to articulate a constructive, realistic vision for Gaza’s future has created an opening for reprehensible calls by Israeli leaders to transfer Palestinians out of the Strip and rebuild Jewish settlements there. Netanyahu has rejected resettling Gaza as “not realistic,” but this stance puts him at odds even with many in his own party. Well aware of the prevailing sentiments on the right, the prime minister has largely avoided discussing the issue.
South Africa’s argument at The Hague on Thursday will reference all of these points, and Aharon Barak is fully qualified to refute them as evidence of genocide.
But there is an irony in Barak, once the target of Netanyahu’s worst allies, having to wade through a rhetorical and diplomatic mess wrought by that same poison machine. Actors like South Africa would likely charge any full-scale Israeli war against Hamas as genocide, regardless of how it is waged. But disproving the charge will be all the more challenging given Netanyahu’s political reliance on the far-right.
The same cowardice that inspired Netanyahu to stand by as his supporters slandered Barak, Israel’s most venerable legal expert, has now created conditions that require him to task that expert with defending the country’s reputation in the highest court of international law.
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