Since Oct. 7, 2023, Israel's violations of international law in Palestine have escalated. The International Court of Justice (ICJ) is investigating allegations of genocide, while the International Criminal Court (ICC) is examining accusations of war crimes committed by Israel.
The situation came to international attention when South Africa found Israel guilty of violating the U.N. Convention on the Prevention and Punishment of Genocide. South African jurists trained in common law have accused Israel of genocide in the Gaza Strip. The 84-page dossier prepared by these lawyers details the massacres committed by Israel since last October and the denial of essential needs such as shelter, water, food, medicine and fuel.
Essentially, the South African lawyers allege that Israel's actions in Gaza constitute a violation of the 1948 U.N. convention, which holds that Israel, through its ongoing operations in Gaza, has acted with genocidal intent to kill or inflict severe harm on the people of Gaza, targeting them based on their nationality, race and religion. Furthermore, Israel is accused of deliberately attempting to destroy the living conditions and physical existence of Gazans.
Reports from U.N. agencies and numerous human rights organizations have identified Israel's violations of the laws of war and human rights law in Gaza. The ICJ, headquartered in The Hague, is tasked with resolving legal disputes between states according to international law and providing advisory opinions on legal matters referred to it. The court, which adjudicates disputes between states, comprises 15 judges who serve nine-year terms and are elected jointly by the U.N. General Assembly and the U.N. Security Council.
Former Israeli Supreme Court Chief Justice Aharon Barak, 87, represented Israel on the 15-member panel of judges at the ICJ hearing the Republic of South Africa's "genocide" case against Israel. The Israeli government responded to South Africa's accusation of genocide against Palestinians in the Gaza Strip but announced it would not boycott the case.
Barak's approach to interpreting "Israel's heritage" meant that the court rarely had to consider Jewish values in its decisions. In his 1992 manifesto, "Constitutional Revolution," Barak celebrated the Israeli judiciary's acquisition of a powerful tool: "If judges previously relied on 'traditional weapons' to address legislation through interpretation and the development of Israeli common law, they are now equipped with 'non-traditional weapons' that allow them to invalidate legislation inconsistent with the Basic Law."
In the Bank Mizrahi decision, Barak and his fellow judges transformed Barak's manifesto into judicial decision-making with a revolutionary impact. The struggle to develop a legal culture rooted in the Mandatory British legacy, combined with the need to sustain a democratic state, gave rise to a creative and bold Supreme Court.
Barak, a key architect of this transformation, delivered a speech at Haifa University in 1992. He asserted that human rights in Israel had achieved constitutional status, akin to the situation in the U.S. and other constitutional democracies. This principle is reflected in the notion that any legislative act conflicting with the provisions of the Basic Law is rendered void.
According to Barak, when a judge encounters a clash of values, they must seek a synthesis between democratic values and the Jewish legal system. If a synthesis cannot be achieved, democratic values take precedence. In other words, as the court faces such cases, Israel's distinct "Jewish" character may become less pronounced, making it more similar to respected democracies like Canada and the U.S. Barak's statements have led to a series of judicial decisions that have profoundly transformed Israeli law.
Israeli society has entrusted the Supreme Court with the task of defining human rights in a way that aligns with the values of a Jewish democratic society. For the justices, the term "Jewish and democratic" is not seen as contradictory but as complementary. The existence of the State of Israel as the nation of the Jewish people does not undermine its democratic character, just as France's “Frenchness” does not compromise its democracy. The State of Israel is not based on religion but on its alignment with the principles of enlightened nations. The rule of law and human rights are considered the foundation of the state. Israel boasts some of the best judges at all levels.
Barak's philosophy and the constitutional revolution in Israel were solidified by the Knesset's adoption of the Basic Law on Human Dignity and Liberty and the Basic Law on Freedom of Property. This law affirms that no individual's life, body or dignity may be violated simply because they are human. The law asserts that no one’s property may be infringed upon. Although the Israeli judiciary is renowned for its activism, it is also recognized for its quality. Lord Woolf, the former Chief Justice of the U.K. and Wales, acknowledged the high standards of the Israeli Supreme Court, describing it as one of the best courts worldwide. Given this endorsement, it is unsurprising that judicial activism has been a prominent feature of Israeli legal discourse for the past 35 years.
Embracing the principles Barak and his colleagues outlined, the court ruled in the “Ka'adan v. Israel Land Administration” case that the State of Israel cannot directly discriminate based on religion or nationality in allocating state land. This case involved an Israeli Arab couple whose application to build a home in the Israeli settlement of Katzir was denied because the land had been designated exclusively for Jews. The land had been allocated by the State of Israel to the Jewish Agency, which then transferred it to an agency that sold land only to Jews. Following the rejection of their application for reconsideration, the couple sought legal recognition for their request to purchase land in Katzir, arguing that the policy of exclusively Jewish settlements violated the principle of equality. The Supreme Court ruled in favor of the applicants, stating that the state could not engage in indirect discrimination through a third party, such as the Jewish Agency, which implemented a discriminatory policy.
The judicial activism of the court under Barak has sparked intense public debate about the need for a system overhaul. Critics argue that the court has been excessively activist and has recently called for significant reforms to constrain the judiciary. Israel's situation is unique due to the court's constitutional role. It reviews petitions regarding Knesset legislation and administrative decisions as an initial measure, closely resembling an "abstract" review model of constitutional examination.
No other Supreme Court has faced challenges as profound as those encountered by the Israeli Supreme Court. Law professor Eli Salzberger illustrates this by examining the political context, noting that the Supreme Court has been more active than most of its counterparts. Much of this activism occurred during Barak's tenure. Salzberger notes that the court has taken a broad approach to interpreting legislation and case law and has also intervened in executive decision-making. Recently, the court has adopted a strategy of referring some sensitive matters to other state organs for further consideration before making a final decision. In this way, the Israeli Supreme Court, similar to its counterpart in India, often steps in to address gaps left by governmental and parliamentary indecision, leading to criticism. Salzberger argues that the experience of the Israeli Court offers valuable insights for developing a theory of the state.
Even if rights are not explicitly added through the interpretation of the law, there is no reasonable way to interpret the right to dignity such that the humiliation of an individual would not be considered a violation of the law. It safeguards against harm that leads to degradation, impacting the core of a person's personality. Therefore, the law upholds the principle of equality in cases of discrimination based on sex, race, or religion, as well as protecting freedom of expression, religion, conscience and scientific creation from laws that restrict personal fulfillment.
Are there limitations on the authority of the Knesset as a constitutional assembly to formulate the substantive content of a basic law that is deemed unconstitutional? Is there a distinction between areas covered by a basic law and those that are not yet addressed by such laws? The constitutional revolution in Israel was seen as a global success. The renowned constitutional status of the new Basic Laws on human rights, coupled with the bold leadership of Barak, has led to the Israeli constitutional project being regarded as a democratic and liberal Western achievement.
According to Barak, a Supreme Court judge is more of an artist than a mirror, creating the judicial landscape with their own hands. In other words, judges engage in judicial lawmaking. Judicial creativity and lawmaking are intrinsic to the nature of law. Without the discretionary power of judges, the law would be stagnant. Judicial creativity is essential to the vitality of legal existence, and this creativity is a fundamental task of the Supreme Court.
Another significant example is the government's repeated attempts to enact the Basic Law: Israel as the Nation-State of the Jewish People. This proposed law aims to redefine the fundamental character of the State of Israel, shifting its identity toward that of a “nation-state” for the Jewish people. It seeks to alter the constitutional balance between the state's core values of being both “Jewish and democratic,” with the clear intention that, in the event of a conflict, the “Jewish” aspect will take precedence over the “democratic” one.
In recent years, repeated attempts to enact this Basic Law have garnered strong support from Prime Minister Benjamin Netanyahu, who has urged “all Zionist parties” to back it. This consolidation of power has led to a weakening of the opposition. Indeed, temporary constitutional amendments have been introduced to shift the balance of power in favor of the incumbent government.
Ultimately, the Israeli government appointed Barak, the chief architect of Israel's “constitutional revolution,” as an ad hoc judge for this case. In the proceedings before the ICJ, Barak joined the majority in a vote for another injunction: “that the State of Israel take all measures to punish and prevent direct and public incitement to genocide of Palestinians in the Gaza Strip.” This vote resulted in a 16-1 decision, strongly supporting those who argue that Israel's actions in Gaza amount to genocide.
