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Separate opinion of Judge ad hoc Barak, Order of 26 January 2024, South Africa v. Israel

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aliasesBarak separate opinion, South Africa v. Israel, 26 January 2024

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Summary

Judge ad hoc Barak, concurring in part and dissenting in part, holds that South Africa wrongly framed Gaza under the Genocide Convention: the appropriate framework is international humanitarian law, no plausible Genocidal intent was shown on the evidence the Court used — which he contrasts with the fact-finding record in The Gambia v. Myanmar — and applying the Convention here would dilute genocide and curtail self-defence; he voted against the first, second and fifth measures indicated, and for the third (incitement) and fourth (humanitarian assistance), the first two in any case merely restating Israel’s existing Articles I and II obligations (Separate opinion of Judge ad hoc Barak, Order of 26 January 2024, South Africa v. Israel, PDF p.1, p.8-13).

What the file is

The separate opinion appended to the Order of 26 January 2024 in I.C.J. Reports 2024, printed p.63-76, General List No. 192. 14 PDF pages, about 5,974 words; PDF p.14 is the Contents of the Fascicle for the whole Order fascicle. 49 numbered paragraphs in seven parts plus a closing, 21 footnotes, signed Aharon Barak (PDF p.13).

Section by section

  • Paras. 1-2 (PDF p.1). South Africa sought immediate suspension of operations; “It has wrongly sought to impute the crime of Cain to Abel.” The Court rejected that main contention, adopted narrower measures recalling existing obligations, reaffirmed Israel’s right to defend its citizens and emphasized humanitarian aid; all parties including Hamas are bound by IHL, and the Court called for the hostages’ “immediate and unconditional release” (Order para. 85).
  • I. Genocide: An Autobiographical Remark (paras. 3-8, PDF p.1-2). The Convention’s special place for the Jewish people; “genocide” coined in 1942 by Raphael Lemkin; the murder of 6 million Jews in the Holocaust. His own account: aged five in Kaunas when Germany occupied it under Operation Barbarossa; almost 30,000 Jews put into the ghetto; on 26 October 1941 around 9,000 taken from “Democracy Square” and executed; the 1944 “Kinder Aktion” in which children under 12 were shot; his escape in a sack, hiding with his mother behind a double wall, liberation by the Red Army on 1 August 1944; only 5 per cent of Lithuania’s Jews survived. Twofold effect on him as judge: awareness of the importance of Israel’s existence, and belief in human dignity.
  • II. Israel’s commitment to the rule of law and IHL (paras. 9-14, PDF p.2-4). Israel as democracy balancing security and human rights, quoting his own Israel Law Review article (2014, footnote 1): “Security and human rights go hand in hand. There is no democracy without security; there is no democracy without human rights.” Israeli Supreme Court rulings he cites: repairing water pipes and providing aid during a Gaza operation (Physicians for Human Rights v. IDF Commander in Gaza, HCJ 4764/04), targeted killings (HCJ 769/02), every soldier carrying international law in his backpack (Jam’iat Iscan, HCJ 393/82), fighting terrorism “with one hand tied behind its back”, the bar on torture in interrogations (HCJ 5100/94) and protection of religious sites and captives (HCJ 3278/02); the IDF Code of Ethics “Purity of Arms” passage (footnote 8); enforcement by the Attorney General, State Attorney and Military Advocate General subject to judicial review — “This is Israel’s DNA.” — and real-time legal advice barring strikes that fail military objective or proportionality.
  • III. The Court’s prima facie jurisdiction (paras. 15-16, PDF p.4-5). Jurisdiction affirmed (Order para. 31), but he doubts South Africa’s good faith: after its Note Verbale of 21 December 2023 Israel offered consultations at the earliest opportunity and South Africa filed instead; peace in the Middle East has generally come from political negotiations, citing the 1978 Camp David talks; good faith dictates some effort before resorting to the Court. Hamas, the other belligerent, is not a party, so no measures can be directed at it in the operative clause.
  • IV. The armed conflict in Gaza (paras. 17-24, PDF p.5-6). The Court’s account (Order para. 13) is incomplete, he says. Para. 18, in his own voice without a cited source: over 3,000 Hamas terrorists aided by Palestinian Islamic Jihad invaded on the Sabbath and Simchat Torah, more than 1,200 innocent civilians murdered, 240 kidnapped, over 12,000 rockets fired since 7 October. Israel’s declared purpose: dismantle Hamas, return the hostages, secure its borders. Hamas has vowed to “repeat October 7 again and again” (footnote 9, an X post by Ghazi Hamad), embeds its apparatus in and below civilian infrastructure, hoards aid, and has kept the hostages over 100 days without names, ICRC visits or medical supplies — hostage-taking being a grave breach of the 1949 Geneva Conventions and criminalized under Rome Statute Article 8 (footnote 10). Paras. 23-24 record his regret for innocent Palestinian suffering and that the 7 October trauma is the inescapable backdrop, without relieving Israel of its obligations.
  • V. The appropriate legal framework (paras. 25-28, PDF p.7). Article IX seisin does not make the Convention the right prism; IHL is, under which civilian harm is not unlawful if not excessive against anticipated military advantage. The drafters, quoted from the 1947 ECOSOC comments (UN doc. E/447, footnote 11): “[t]he infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide.” IHL violations are for the competent Israeli authorities to investigate and prosecute.
  • VI. Lack of Intent (paras. 29-41, PDF p.7-12). The intent threshold in the ICTR’s Akayesu judgment (paras. 518, 498, footnote 12) and the ICTR acquittal figures (footnote 13); the Court’s restrictive merits approach in Bosnia v. Serbia (para. 370: save Srebrenica, no specific intent) and Croatia v. Serbia (para. 524(2): intent lacking altogether). Some proof of intent is still needed provisionally to make genocide plausible. He strongly disagrees with the Court’s plausibility finding (Order para. 54) on “scant evidence”: in The Gambia v. Myanmar the Court had two Independent International Fact-Finding Mission reports built on 400 interviews over two years (footnotes 15-20), here it has OCHA figures sourced, he says, from the Hamas-controlled Gaza Ministry of Health without civilian/combatant distinction, statements by the OCHA Under-Secretary-General, WHO and the UNRWA Commissioner-General that mention neither genocide nor intent, and three Israeli officials’ statements — the President’s and Defence Minister’s being answered by their clarifications of 29 October and 29 November 2023 that the target is Hamas and aid is being increased, and the Energy and Infrastructure Minister having no authority over the military (Order paras. 46-53 as he characterises them). Inappropriate and degrading language by some officials, noted by the Special Rapporteurs and CERD Committee, is for Israeli authorities to investigate; inferring genocidal intent from it is “plainly implausible”. Israel’s opposite intent is shown by its two water pipelines, medical supplies, field hospitals, fuel and winter equipment (Order para. 64) and the Prime Minister’s statements of 17 and 28 October 2023; the Court noted the alleviation steps and the Attorney General’s announced investigation of calls to harm civilians (Order para. 73) yet drew no conclusion on intent. Applying the Convention here would “dilute the concept of genocide” and let States misuse it to curtail self-defence against terrorist groups (PDF p.11-12).
  • VII. The measures indicated (paras. 42-46, PDF p.12-13). No findings have been made and South Africa’s claims “remain wholly unproven” (Order paras. 30, 62). He voted against measures (1) and (2), which in any case merely restate Articles I and II; for measure (3) on incitement, to decrease tensions and discourage damaging rhetoric; for measure (4) on humanitarian assistance, from humanitarian conviction and as an IHL obligation; against measure (5) on evidence, South Africa not having shown Israel destroyed or concealed evidence. He regrets the Court could not order South Africa to act to protect the hostages and facilitate their release by Hamas.
  • Closing (paras. 47-49, PDF p.13). Genocide as a shadow over Jewish history and his own experience; granting suspension would have left Israel defenceless, tying both its hands while Hamas’s remained free; “I was appointed by Israel; I am not an agent of Israel. My compass is the search for morality, truth and justice.”

Key passages

  • “It has wrongly sought to impute the crime of Cain to Abel.” (PDF p.1)
  • “This is Israel’s DNA.” (PDF p.4, on enforcement of the rulings and military code)
  • “I was appointed by Israel; I am not an agent of Israel. My compass is the search for morality, truth and justice.” (PDF p.13)

Evidence the work relies on

  • His own prior writings and judgments and other Israeli Supreme Court cases, the IDF Code of Ethics, and Israeli institutional practice, as cited in footnotes 1-8 (PDF p.2-4); the 1947 ECOSOC draft-convention comments in Abtahi and Webb’s Travaux Préparatoires (footnote 11); ICTR Akayesu and ICTR appeal judgments (footnotes 12-13); the Court’s Bosnia and Croatia merits judgments and The Gambia v. Myanmar order and the IIFFM reports A/HRC/39/64, A/HRC/39/CRP.2 and A/HRC/42/50 (footnotes 14-21); an X post by Ghazi Hamad (footnote 9); and the Order’s own paragraphs 13, 31, 46-54, 62, 64, 73 and 85 as he discusses them.
  • Para. 18’s account of 7 October is given without a cited source in the opinion.

Analysis

A separate opinion, not a dissent from the Order as a whole: it accepts prima facie jurisdiction, agrees the suspension South Africa sought was rightly refused, and supports two of the six measures, while rejecting the plausibility reasoning that underlies the Order. Its distinctive moves are the autobiographical opening, which it expressly connects to its author’s judging; the institutional account of Israeli law as evidence against intent; and an evidentiary comparison — fact-finding mission record versus agency statements and contested casualty figures — as the test for plausibility at this stage. Its 7 October and Hamas accounts in Part IV are asserted in the author’s own voice.

People, organizations, places and events

Aharon Barak, Raphaël Lemkin, Julia Sebutinde, Hamas, International Court of Justice, Israeli Supreme Court, Gaza, Kaunas

Concepts

Genocide Convention, Genocidal intent, Provisional measures, Genocide, South Africa v. Israel (Genocide Convention)

How it relates to other sources

Open questions

  • Measure (6) (the report) is not covered by the voting explanations in paras. 43-46 of this opinion; the Order itself records Judge Sebutinde and Judge ad hoc Barak as the two dissenters on that measure.
  • Para. 18 gives over 3,000 invading Hamas terrorists and over 12,000 rockets fired since 7 October with no source cited in the opinion; Sebutinde’s dissent gives different framings (thousands of rockets on the day itself, PDF p.6 of that opinion).

Coverage

PDF p.1-14 of 14, read in full

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