Israeli Judge Dissents: ICJ ‘Wrongly Sought to Impute the Crime of Cain to Abel’

Former Israeli Chief Justice Aharon Barak dissented from the preliminary ruling of the International Court of Justice (ICJ) Friday on whether Israel is committing “genocide” Friday, saying the court “has wrongly sought to impute the crime of Cain to Abel.”

As Breitbart News reported, the ICJ issued a blistering anti-Israel ruling in which it failed to condemn the terrorist attack by Hamas that launched the war October 7. But in the end, all it did was order Israel to obey international law and write a report.

Barak, 84, a left-wing judge who launched Israel’s constitutional “revolution” in the 1990s, is a revered figure internationally — and somewhat reviled domestically, at least in conservative circles. But while opposing Barak’s judicial legacy in Israel, Prime Minister Benjamin Netanyahu asked him to be the customary ad hoc judge for Israel on the ICJ, and Barak accepted the role.

While not representing Israel, Barak articulated the Israeli point of view in his dissent, noting that the ICJ had allowed Israel to be accused of genocide when, in fact, it was the Palestinian terrorist group Hamas that had attacked Israel with genocidal intent.

Barak dissented from most of the ICJ’s decision, except for two admonitions that Israel obey the Genocide Convention and punish incitement to genocide. He said that in supporting those parts of the ruling, he hoped to remind Israel of its treaty obligations and to “discourage damaging rhetoric,” though he added that “there is no plausibility of genocide” in even some offensive statements by Israeli officials, and said it was “regretful” that the ICJ did not order South Africa to pressure Hamas to free Israeli hostages.

Separate Opinion of Judge Ad Hoc Barak by Breitbart News on Scribd

The bulk of Barak’s dissent was a sharp rebuke of the ICJ for taking up the case, and of South Africa’s case against Israel:

South Africa came to the Court seeking the immediate suspension of the military operations in the Gaza Strip. It has wrongly sought to impute the crime of Cain to Abel. The Court rejected South Africa’s main contention and, instead, adopted measures that recall Israel’s existing obligations under the Genocide Convention. The Court has reaffirmed Israel’s right to defend its citizens and emphasized the importance of providing humanitarian aid to the population of Gaza. The provisional measures indicated by the Court are thus of a significantly narrower scope than those requested by South Africa.

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The present case involves an additional difficulty. The other belligerent in the armed conflict in Gaza, Hamas, is not a party to the present proceedings. Thus, it is not possible to indicate measures directed at Hamas in the Order’s operative clause. While this does not prevent the Court from exercising its jurisdiction, it is an essential matter to be considered when determining the appropriate measures or remedies in this case.

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The Court briefly recalls the immediate context in which the present case came before it, namely the attack of 7 October 2023 by Hamas and the military operation launched by Israel in response to that attack (see Order, para 13). The Court, however, fails to give a complete account of the situation which has unfolded in Gaza since that fateful day.

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Hamas has vowed to “repeat October 7 again and again”9. Hamas is thus an existential threat to the State of Israel, and one that Israel must repel. This terrorist organization rules over the Gaza Strip, exercising military and governmental functions. Hamas seeks to immunize its military apparatus by placing it within and below civilian infrastructure, which is itself a war crime, and intentionally places its own population at risk by digging tunnels under their homes and hospitals. Hamas fires missiles indiscriminately at Israel, including from schools and other civilian installations in Gaza, in the full knowledge that many of them will fall inside Gaza causing death and injuries to innocent Palestinians. This is Hamas’s well-known modus operandi.
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When humanitarian aid enters Gaza, Hamas hoards it for its own purposes. Hamas has made clear that its tunnel network is designed for its fighters, rather than for civilians seeking shelter from the hostilities. Hamas has compromised the inherently civilian nature of schools and hospitals in Gaza, using them for military purposes by storing or launching rockets from and under these sites.

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The fate of the hostages is especially disturbing. The act of hostage taking committed by Hamas on 7 October constitutes a grave breach of the Geneva Conventions of 12 August 1949 and is criminalized under the Rome Statute10. Hamas has not provided the names of the hostages, or any information regarding who is dead and who is still alive. Nor have they allowed the International Committee of the Red Cross (ICRC) to visit the hostages, as the law requires. The ICRC has not been able to provide medical supplies to the hostages, does not know their whereabouts, and has not succeeded in securing their release. As I write, this agony has now been ongoing for over 100 days.

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In my view, the appropriate legal framework for analysing the situation in Gaza is International Humanitarian Law (IHL)  and not the Genocide Convention. IHL provides that harm to innocent civilians and civilian infrastructure should not be excessive in comparison to the military advantage anticipated from a strike. The tragic loss of innocent lives is not considered unlawful so long as it falls within the rules and principles of IHL.

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The declarations made by the President of Israel and the Minister of Defence of Israel are not a sufficient factual basis for inferring a plausible intent of genocide. Both authorities have issued several statements clarifying that Israel’s intent is the destruction of Hamas, not the Palestinians in Gaza.

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It is concerning that certain Israeli officials have used inappropriate and degrading language, as noted by the group of Special Rapporteurs and the CERD Committee. Indeed, it is an issue that will have to be investigated by the competent Israeli authorities. However, to infer an intent to commit genocide from these statements, which were made in the wake of horrific attacks against the Israeli population, is plainly implausible.

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It is concerning that applying the Genocide Convention in these circumstances would undermine the integrity of the Convention and dilute the concept of genocide. The Genocide Convention seeks to prevent and punish the physical destruction of a group as such. It is not meant to ban armed conflict altogether. The Court’s approach opens the door for States to misuse the Genocide Convention in order to curtail the right of self-defence, in particular in the context of attacks committed by terrorist groups.

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Had the Court granted South Africa’s request to put an immediate end to the military operation in Gaza, Israel would have been left defenceless in the face of a brutal assault, unable to fulfil its most basic duties vis-à-vis its citizens. It would have amounted to tying both of Israel’s hands, denying it the ability to fight even in accordance with international law. Meanwhile, the hands of Hamas would have been free to continue harming Israelis and Palestinians alike.

Barak, a Holocaust survivor whose family was hidden by a Lithuanian farmer during the war, noted: “Genocide is more than just a word for me; it represents calculated destruction and human behaviour at its very worst. It is the gravest possible accusation and is deeply intertwined with my personal life experience.” He said that the rise of the state of Israel, in the wake of the Nazi genocide, was a “rebirth” not just of Jews, but of humanity, and thus he regretted the abuse of the term “genocide” against Israel.

Notably, Barak quoted the Biblical story of Cain and Abel — a subtle rebuke to South Africa, which cited the incorrect passage of the Bible when accusing Israeli Prime Minister Benjamin Netanyahu of incitement, a claim that did not appear in the ICJ ruling.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book is How Not to Be a Sh!thole Country: Lessons from South Africa. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.