Israel has no reason to be overly happy that the interim orders issued by The Hague are much less severe than we feared, and that there is no order demanding the return of the residents of northern Gaza to their homes or an order to stop the war. It is precisely the lightness of the orders that may – and may even be intended – to tempt Israel to add legitimacy to an illegitimate procedure. Then, when we have recognized the validity of the procedure, and we have saddled ourselves with the idea that this tribunal can interfere in the conduct of our war, other, more severe orders will follow. In the end, they will stamp on our foreheads a false Cain mark of genocidal murderers.
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It’s amazing how similar this is to the method of operation he introduced Aharon Barak In the Supreme Court of Israel. First you establish an authority that you don’t use, then after your opponents have recognized it, you use it against them. This is how the Mizrahi Bank acted in the famous ruling, which established the authority of the court to invalidate laws of the Knesset without invalidating a law, and this is what its successors do to this day. After all, only recently we saw how they patiently strived to take for themselves the power to invalidate fundamental laws.
The fact that Barak himself joined the majority judges in two of the orders issued against Israel is not only politically harmful, because it will harm our room for maneuver. It is also legally puzzling. as commented by Prof. Moshe Cohen-Alia, also from a legal point of view, the position is devoid of logic. So much so, he wrote, that if a second year law student had expressed it in the exam, he would have failed it. After all, interim orders are given when at least apparently there is some conceivable case for prosecution.
The Hague Tribunal (Photo: REUTERS/Thilo Schmuelgen)
Barak claims himself that there is no basis for the claims of genocide committed by Israel in Gaza. Therefore, according to his own method, there is no legal basis for the interim orders. Therefore, says Prof. Cohen-Alia, there is no legal logic in that he himself voted along with the majority judges in favor of two of these orders.
But anyone who knows Barak’s long and fruitful career, and the main part of his work, which is political and not legal, should not be surprised that he uses his position to exceed his authority and impose his personal views. In fact, there is a great deal of innocence in the hope that Barak will act here for Israel in general, and not to strengthen his own enterprise within Israeli politics specifically. That is, to further strengthen the court at the expense of the elected authorities.
Barak’s temporary seat in The Hague is a powerful lever to continue this enterprise. From the distant Hague, Barak is helping to sharpen another weapon against those who dared, in their impudence, to ask to limit the power of the court, in accordance with the practice in other democracies, and to return a minimal bit of sovereignty to its citizen owners.
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as he noticed John Ponte More than a decade ago in his masterful book “Sovereignty or Submission”, international legal tribunals are opponents of democracy by their very nature. There are several reasons for this. First, they contribute to the legalization of the political, and move the centers of decision-making from the elected institutions to the courts. Second, they violate the principle of the sovereignty of the states, and therefore also the principle of government with the consent of the governed: the citizens of the various states are subject to the decisions of institutions they did not choose and over which they have no influence.
But their damage doesn’t stop there, Ponte explains. They also upset the balance between authorities within the states, because they become allies of their supreme courts, thus giving the local courts an advantage in their struggle for supremacy over the elected authorities.
A demonstration against the reform of the judicial system in front of Aharon Barak’s house (Photo: Avshalom Sashoni)
The Israelis can easily understand this claim based on their experience with international treaties and international bodies, which are often used by our court to enforce its will on the legislature (the most striking example is of course the Supreme Court’s continuous undermining of Israel’s immigration laws in the name of international norms and treaties ).
Barak is of course well aware of this dynamic, and it was naive on our part to think that he would not take advantage of the opportunity that came his way. Apart from his harmful accession to the order requiring humanitarian aid to the Gazans, he also voted with the majority judges in favor of the order requiring the punishment of those who incite genocide. Both the order itself and Barak’s support for it are a signal that the law enforcement and judicial authorities in Israel will not miss, of course. Since they are famous for their interpretive flexibility, which is part of the legacy of Barak who introduced here a postmodern theory of interpretation that can stretch and contract the law according to the will of the judge – it is not difficult to imagine how the Israeli law enforcement authorities will use the Hague order, and against which political camp they will use it.
The writer is a historian and the host of the podcast “Gatekeeper”
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