[As Supreme Court president, Barak provided legal armor for
Israels occupation and façade of democracy. Now he’s back to
continue the job. ]
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AT THE HAGUE, AHARON BARAK WILL PLAY DR. JEKYLL TO ISRAEL’S MR.
HYDE  
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Orly Noy
January 10, 2024
972 Magazine
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_ As Supreme Court president, Barak provided legal armor for Israel's
occupation and façade of democracy. Now he’s back to continue the
job. _

Former Supreme Court President Barak at the International Convention
Center in Jerusalem, December 8, 2019., Yonatan Sindel/Flash90

 

The announcement that Israel has chosen Aharon Barak, the renowned
former Supreme Court President, to join the International Court of
Justice (ICJ) as it judges a landmark case charging Israel with
genocide has sent the country into a tizzy. Barak will be Israel’s
representative on a panel that is hastily being convened to discuss
South Africa’s petition for an emergency suspension of Israel’s
assault on the Gaza Strip — a panel that will consist of the ICJ’s
15 permanent judges plus one from Israel and one from South Africa. 

Barak has long been reviled by the Israeli right for having enshrined
various liberal principles in the state’s quasi-constitution
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his tenure as Supreme Court president from 1995-2006. His fans,
meanwhile, are struggling to contain their excitement. “The most
appropriate stamp of approval. Israel has no one to rely on except
Aharon Barak,” Yossi Verter
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a commentator for Haaretz, remarked. The Movement for Quality
Government in Israel similarly declared
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the greatest jurists to have arisen in the State of Israel, and his
appointment to the position is a requisite.”

On the face of it, Barak is a puzzling choice from a far-right
government that has spent the past year trying to dismantle
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he stood for. Indeed, according to Israeli media reports, Barak was
not even Netanyahu’s first choice for the job, which is unsurprising
given their history of bad blood. 

Yet it’s hard to think of a person better suited for the role. Not
because of Barak’s legal prowess, nor the international reputation
he has built for himself, nor even the fact he is a Holocaust survivor
— which did not go unnoticed by those who sent him to The Hague.

Former Supreme Court President Barak speaks at a press conference held
on November 3, 2023, with families whose loved ones were kidnapped by
Hamas on October 7. (Miriam Alster/FLASH90)

Rather, Barak’s new role actually continues the mission to which he
has devoted his entire professional life: legitimizing the majority of
Israel’s crimes, while simultaneously defending the façade of
“Israeli democracy.” Barak, after all, is one of the most
significant authors of the legal doctrine that Israel can claim to be
a democracy while maintaining an endless military occupation and
systematically depriving the Palestinians of their rights, dignity,
land, and property.

On the one hand, the Israeli judicial system under Barak’s
stewardship greatly expanded the boundaries of its own authority. On
the other, the court almost always stood beside the positions of
Israel’s security establishment. In Barak’s own words
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“All matters of the West Bank and Gaza are justiciable [i.e. can be
handled within the Israeli judicial system]. Military affairs in the
[occupied] territories are justiciable. Whether to shut off
electricity in Gaza — justiciable. Why? Because there is
international law. If shutting off electricity in Gaza is not
justiciable here, it will be justiciable in The Hague. This is the
case in this matter and likewise in the matter of the settlements.”

Now, Barak is discovering that the legal armor he worked so hard to
provide for Israel’s crimes may not be enough — and he himself
will now have to fight for it in The Hague.

The mirage of that legal doctrine was made possible by two of the
concepts with which Barak is most strongly identified: everything is
justiciable, and proportionality. For example, under his leadership,
the Supreme Court legalized the separation barrier
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territories, but “balanced” the decision, in the name of sacred
proportionality, by ruling that its route must be altered so as not to
cut off a handful of Palestinian villages from the rest of the West
Bank.

A section of the Israeli separation wall that annexes land of the
Bethlehem and Jerusalem districts, Beit Jala, occupied West Bank,
April 6, 2019. (Anne Paq/Activestills)

Similarly, Barak made sure to present the Supreme Court’s ruling
on Jami’at Iscan [[link removed]] — which
allowed the Israeli army to expropriate Palestinian land for the
construction of highways in the West Bank — as if it were intended
to serve the residents under occupation, arguing that “long-term
military rule could lead to a stagnation in the development of the
local population and the region.”

While he found punitive demolitions of Palestinian homes
“inappropriate” and useless, he decided
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as a judge he had no discretion in the matter, and did not act to stop
the policy. This approach culminated in Barak’s final ruling
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which in effect legalized the army’s policy of “targeted
killings” — that is, extrajudicial executions — but with a
caveat that “restrictions and limitations must be outlined for the
targeted killings, so that each case is examined on its own.”

In response to this decision, legal scholar Suzie Navot wrote
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“Supposedly, the ruling will make it difficult to target terrorists
… But this is only supposedly. Because in practice, even today, the
security forces make decisions on targeted killings based on
considerations similar to those set forth in the verdict. Presumably,
reality won’t change much.”

With these words, Navot put her finger — supportively — on
Barak’s dual mirage, whose essence and purpose she explains as
follows: “The ruling on targeted killings was not written only for
the army. It is perhaps one of the most important legal documents
written in Israel from a hasbara [public relations] perspective. It
is essentially similar to other rulings written by Aharon Barak,
especially with regard to the separation barrier. Judgments aimed
outward — for the international community, which scrutinizes
Israel’s actions in the [occupied] territories. The final flourish
of former President Barak constitutes a sensitive statement of defense
of Israel’s impossible situation and its constant war on terror.”

It turns out that wasn’t the judge’s final flourish after all. The
87-year-old has volunteered to don the cloak of Dr. Jekyll to
legitimize the crimes of Mr. Hyde — one body in the service of
Israeli hasbara — one more time.

_This article first appeared in Hebrew on Local Call. Read it __here_
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_ORLY NOY is an editor at Local Call, a political activist, and a
translator of Farsi poetry and prose. She is the chair of
B’Tselem’s executive board and an activist with the Balad
political party. Her writing deals with the lines that intersect and
define her identity as Mizrahi, a female leftist, a woman, a temporary
migrant living inside a perpetual immigrant, and the constant dialogue
between them._

_Our team at +972 has been devastated by the horrific events of this
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the people and communities facing violence._

_We are in an extraordinarily dangerous era in Israel-Palestine. The
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wreaking destruction on the already besieged strip and killing a
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_This escalation has a very clear context, one that +972 has spent the
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