The International Court of Justice in The Hague (ICJ) issued new temporary orders against Israel last week. Regarding the military operation in Rafah, the court’s main order, given by a majority of 13 justices against a minority of two (from Israel and Uganda), stated that Israel should “immediately halt its military offensive and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”
This decision is substantially different from what South Africa requested of the court, as it does not order Israel to cease all military activity in the Gaza Strip and to withdraw unconditionally from all parts of it. Rather, it is a limited order to halt the operation in Rafah if it is likely to lead to a violation by Israel of its obligations under the Genocide Convention.
The wording of the order is ambiguous, perhaps purposefully so. A narrow and precise interpretation of the order can be found in the minority opinion given by the ad-hoc judge representing the State of Israel, Aharon Barak. Incidentally, Barak is one of the world’s greatest experts in legal interpretation.
As with the first temporary orders issued by the ICJ in March 2024, Justice Barak was once again in the minority.Barak writes that the order merely reaffirms Israel’s existing obligations under the convention. Even without an order issued by the court, a military offensive that may result in a violation of a state’s obligations under the Genocide Convention would have to stop. Israel has never disputed this. In effect, South Africa’s tactics and requests, which were based on accusations of genocide, failed.
He once again did not accept the accusation against Israel of genocide under the terms of the Genocide Convention. In this regard, he returns to his written opinion on the temporary orders in March 2024, in which he opposed in the strongest terms the use of this convention: “The Court’s approach opens the door for States to misuse the Genocide Convention in order to curtail the right of self-defense, in particular in the context of attacks committed by terrorist groups.”
Barak's defense
Israel’s military operation does not plausibly raise questions under the Genocide Convention, writes Barak on this occasion: “In particular, there is no evidence of intent. Needless to say, every armed conflict, including this one, raises relevant questions under human rights and international humanitarian law. However, those questions, and the corresponding responsibilities, must continue to be addressed and decided by Israel’s independent and robust judicial system.”
For the second time as an ad hoc member of the court, Barak offers a legal defense of Israel’s military operations in the Gaza Strip in general and Rafah in particular: “I do not see how Israel’s conduct could even plausibly amount to a pattern that provides the basis for inferring the specific intent required by the Genocide Convention. Why would a state that has the intention to destroy a group provide tents, humanitarian aid, and field hospitals? Why would they issue warnings and build humanitarian zones?”
In none of South Africa’s requests has there been evidence “that would substantiate a plausible existence of genocidal intent.” According to Barak, this is the “fatal flaw” of South Africa’s case.
Justice Barak expresses plenty of criticism of the court—neither personal nor “political,” but legal.
First, as noted, regarding the Genocide Convention, Barak writes that “the Court is in a difficult position and facing great pressure … The urge to ‘do something’ is understandable … But this cannot be sufficient.” The ICJ, he says, “should not have sacrificed the integrity of the Genocide Convention and overstepped the limits of its jurisdiction in response to public pressure.”
Second, regarding the evidence based on which the orders were issued, Barak states: “The Court relies primarily on statements made by United Nations officials on social media and press releases … without even inquiring into what kind of evidence they draw upon,” as it did in previous cases.
The court has not corroborated these reports and “has not inquired into the methodology or amount of research underlying their preparation, as it has done in previous cases.” Barak concludes: “I fail to see how the Court’s approach here is compatible with its previous decisions to exclude elements of United Nations reports which rely only on second-hand sources.”
Third, regarding the need for additional orders against Israel, Barak finds that there has been no substantial change in circumstances that would require the issuing of new orders. The operation in Rafah, Barak writes, “is not a new military campaign. It forms part of Israel’s ongoing military operation throughout the Gaza Strip, which began in October 2023. It is an integral part of its overall effort to prevent and repel ongoing threats and attacks by Hamas and free the hostages in captivity.”
REGARDING THE interpretation of the orders issued by the court and their implications for Israel and its ability to act, the former president of Israel’s Supreme Court explains that the main order does not require Israel to refrain from its military operation in Rafah, and includes no unconditional instruction for it to halt its military activities. According to the order, Israel must act in accordance with its obligations under the terms of the 1948 Genocide Convention: that is, to “conduct its military offensive in a way that does not deprive the Palestinian civilian population of its essential means of existence.”
The main ICJ order is limited to an offensive (and not defensive) military operation in Rafah and requires Israel to halt the operation only if there is a need to protect the Palestinian population from destruction. Its limited nature indicates that the court is aware of Israel’s need to conduct the military actions necessary to prevent and respond to attacks by Hamas, to defend itself and its citizens, and to free the hostages.
On a personal note, Barak concludes thus: “I underwent similar experiences in my 28 years as a judge on Israel’s Supreme Court. The only way that I found to be truthful as a judge was to leave aside the ‘background noise’ and focus purely on the legal reasoning. This is the only common language that we judges have.
"We cannot be bothered by political, military, or public policy troubles. We can only be concerned with legal troubles. We are a court of law, not one of public opinion. When we judges sit at trial, we also stand on trial. We will not be judged by hysteria and the fleeting waves of the hour but by history.”
The last sentence is an almost exact translation of Barak’s own words, in Hebrew, in a ruling given 25 years ago regarding the interrogation techniques used by the Shin Bet (Israel Security Service): “When we sit at trial, we also stand on trial. We must act in accordance with our conscience and our cognizance of the law.”
This time, in English, Barak is issuing a clear call to his fellow judges on the ICJ. “The law” does not allow for Israel to be put on trial for genocide – it’s as simple as that.
Justice Barak’s dissenting opinion would seem to offer an important lesson for the future. Professional, focused, and well-founded legal criticism—as opposed to the very different means that are currently being widely discussed and pursued—is likely the best way to deal with the International Court of Justice.
The writer is an expert in constitutional law and vice president for research at the Israel Democracy Institute.