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Source: https://www.jpost.com/opinion/article-804270
Justice Aharon Barak Criticizes ICJ Order on IDF Operation in Rafah
(Jerusalem Post) Suzie Navot - Former Israeli Supreme Court President Aharon Barak, who served on the International Court of Justice (ICJ) in The Hague, wrote a dissenting opinion on its ruling against Israel. The court did not order Israel to cease all military activity in Gaza, as South Africa requested, but ordered a halt to Israel's operation in Rafah if it is likely to lead to a violation of its obligations under the Genocide Convention. Barak wrote: "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." "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 "should not have sacrificed the integrity of the Genocide Convention and overstepped the limits of its jurisdiction in response to public pressure." "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....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." Barak found that there has been no substantial change in circumstances that would require the issuing of new orders. The operation in Rafah "is not a new military campaign. It forms part of Israel's ongoing military operation throughout Gaza 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." The writer, an expert in constitutional law, is vice president for research at the Israel Democracy Institute.