Israel’s appearance at the ICJ - opinion

Last Friday, those of us who believe that the accusation of Israeli acts of genocide against the Gazan Palestinians is a libelous falsehood – while at the same time oppose the attempt by Prime Minister Benjamin Netanyahu’s all-right government to perform an anti-liberal revolution in Israel’s judicial and legal systems – enjoyed several hours of satisfaction, mixed with a bit of malicious joy.

I am referring to the proceedings in the International Court of Justice in the Hague on Friday, in which Israel was given its day in court to present its case against the outrageous accusations of contraventions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, presented by the South African legal team the previous day.

I am very aware that the makeup of the legal team sent by Israel to the Hague is not to the liking of the supporters of the government’s now-defunct judicial and legal reforms, and to those who view international law as little more than a mechanism designed by the international community to accuse and convict Israel of imaginary crimes.

The reaction of Israel's right-wing

The authentic cries of shock and dismay expressed by Channel 14 anchor Shimon Riklin last week, when he received the news of the prime minister’s decision to appoint former president of the Supreme Court, Prof. Aharon Barak, as Israel’s representative to join the bench of the ICJ when it sits in judgment of the case against Israel, well reflects the feelings of many right-wingers in Israel. 

Barak is viewed by most of this group as the ideological father of the liberal constitutional upheaval back in the early 1990s, following the enactment of Basic Law: Human Dignity and Liberty. It was this Basic Law that enabled the High Court of Justice to cancel laws, or certain articles in laws, that it perceives as contravening its provisions.

Over the course of the last two years, members of the Right, including certain MKs from Likud, have bad-mouthed Barak profusely, while MK David Amsalem (today a government minister) actually went as far as to wish him, from the Knesset podium, to be imprisoned for life.

We have yet to see whether the 87-year-old Barak will manage to convince a majority of the court’s members to adopt a pro-Israeli position, or at least avoid an anti-Israeli position, on the issue of genocide. However, from my perspective, Netanyahu’s mere decision to appoint Barak was a pleasant surprise, and a victory – at least a temporary one – for the Center/Left legal approach.

Nevertheless, one must admit that Netanyahu’s motives are unclear. Did he decide to appoint Barak because he believed that such an appointment would help Israel extricate itself from a serious legal conundrum? Or is he trying to set up an alibi for himself, and the Right as a whole, in order to be able to blame the Center/Left, should the ICJ decide against Israel on the issue of genocide?

The second reason for delight last Friday was the fact that Dr. Tal Becker, the legal adviser to the Foreign Ministry, was among the members of the articulate and highly professional team that presented Israel’s case in the Hague. He did his utmost to dispel the “profoundly distorted factual and legal picture” presented the previous day by the South African legal team. 

But what delighted me, besides Becker’s professional proficiency, was the fact that the professional legal adviser of a ministry was chosen to be part of the team representing the State of Israel.

This appointment was made after an attempt had been made by the government last year, within the framework of its “legal reform,” to get rid of such professional legal advisers and replace them with legal advisers appointed by the ministers, to do their bidding.

It was also a pleasure to listen to deputy attorney general (International Law), Dr. Gilad Noam, speak in praise of Israel’s independent judicial system and professional system of legal advisers who are consulted on all knotty legal issues in real-time, even in the course of fighting. Had the government’s reform gone through in 2023, none of what Noam said would have been valid today. Yet another reason to rejoice, and pray that, at least in these spheres, the status quo will be preserved.

Part of the arguments presented by the South African attorneys on Thursday were based on statements made by Israeli politicians – including members of the government and the Knesset – and other public figures, such as journalists and performers, to the effect that the population of the Gaza Strip should be wiped out by one means or another, or encouraged to leave. The South Africans did not require clandestine sources – only someone to go over the Israeli media of the last three months.

In the immediate aftermath of the atrocities of October 7, it was common to hear ordinary citizens curse all the Palestinians and wish them death or banishment. In the case of some of our politicians, who publicly expressed their hope that the Palestinians would vanish into thin air, one way or another, the basis is frequently ideological, or connected to beliefs of a religious nature. The events of October 7 merely gave such positions alleged moral justification and realpolitik validation. 

One minister quoted by the South Africans was Heritage Minister Amichai Eliyahu, who allegedly said in an interview that Israel should throw an atom bomb on Gaza. (Eliyahu, of Otzma Yehudit, heads one of at least nine superfluous ministries in the current government.)

In fact, haredi journalist Yaki Adamker interviewed Eliyahu, who stated that Israel’s war goals are insufficient. Adamker responded by asking whether Israel should make use of an atom bomb, to which Eliyahu answered that this is one option, but there are others. Netanyahu reacted to this story by stating that this saying was totally detached from reality and that Israel and the IDF operate “in accordance with the highest standards of international law.”

The question is whether it is sufficient for the prime minister to simply make a detached comment of denial to more or less serious statements made by politicians and other public personalities, that are liable to cause Israel real harm, or whether a more serious reaction is called for. 

It is agreed that in a democratic state, one cannot prevent anyone from expressing his or her views on controversial issues within the framework of free speech, as long as these expressions are not translated into illegal action.

Time and again, the Supreme Court has approved the participation of Arab candidates in our Knesset elections, even though they expressed sympathy for Palestinian resistance activities against Israel, as long as this did not involve actually assisting in acts of terror.

What is worrying in the current situation is that Netanyahu seems to pooh-pooh sayings by politicians concerning the killing or banishment of Palestinians.

In his TV statement on Saturday evening, after being asked about the harm caused by these politicians to Israel’s international standing, Netanyahu actually said that such sayings are simply of no importance, and what matters is only what the war cabinet decides.

Hopefully, the ICJ will agree with Netanyahu on this. But what if it doesn’t?

The writer worked in the Knesset for many years as a researcher and has published extensively both journalistic and academic articles on current affairs and Israeli politics. Her most recent book, Israel’s Knesset Members – A Comparative Study of an Undefined Job, was published by Routledge.