The Body of the Judge and the Suffering of the Collective

The widespread prediction among experts right now is that Israel’s chances of prevailing at the ICJ in its response to South Africa’s genocide application are slim. By making murderous statements, Israeli elected and military officials created a comfortable legal environment for South Africa’s claims. To take only one of the many examples, on October 28 Prime Minister Netanyahu said, “You must remember what Amalek has done to you”. The phrase refers back to its even more explicit neighbor in the Bible. In Deuteronomy 25:19, Moses delivers God’s message: “You must wipe out Amalek so completely that no one will remember they ever lived.” We Israelis learn these lines in elementary school. Coupled with the mass destruction, killing, imposition of hunger, and denial of medical aid in Gaza – as well as the displacement of 85% of Gazans — Netanyahu’s statement furnishes the genocide argument. Such statements make it hard to deny, at the very least, the incitement aspect of South Africa’s claim.

Let’s assume, for a moment, that the prediction is accurate. As has been reported, Israeli authorities, too, have acknowledged that there’s a real risk of an ICJ decision against Israel. What does this mean for Israel’s legal strategy? When a party is preparing to lose in a proceeding, one relevant question is what the minority opinion will look like. This is true for ICJ minority opinions, the subject of this post, as much as it is true for high-profile constitutional cases. From a historical narrative perspective, sometimes the minority opinion can carry significant weight. In hindsight, it may even carry more weight than the majority.

Aharon Barak’s appointment as an ad-hoc judge for the ICJ proceedings may reveal some of the outlines Israel is preparing for this minority opinion: even if we lose, we may still try to convince the world that the issue at hand is none other than the memory of the Holocaust. But this is a morally and politically risky choice to make.

Identity Minoritarianism

Minority opinions are often closely linked to the Judge’s identity and personal experience.

In domestic Israeli law, one example is Justice Edmond Levy’s 2005 decision on the issue of “life in dignity”. In this major social-economic rights case, the court had to examine whether a cut in an income guarantee infringed on the right to dignity. Levy’s minority opinion held that a dignified life must go beyond a bare minimum of bare subsistence. His decision began with the words: “I was a child in a home that was called a shack / In a neighborhood that was called a transit camp.” The words refer to the poor shelter that the Israeli government provided to new immigrants from Middle Eastern countries in its early history. Middle Eastern Jews, or mizrahim, were often discriminated in this context, and the grievances remain to this day. Poet Roni Somek, wrote these lines, but they also equally described Levy himself. At the time, Barak wrote the majority opinion, which envisioned a far more limited protection for social-economic rights under the right to dignity.

In the context of international law, too, there is a genre of minority opinions based on the judges’ identity and history. One example is the decision of Indian Judge Radhabinod Pal at the Tokyo Tribunal, where Japanese war criminals were tried after World War II (1948). Judge Pal explained why the accused could not be convicted, citing the Tribunal’s disregard for colonial crimes committed by the Allied Forces, including the United States and the United Kingdom. In retrospect, Pal’s decision was linked to his personal identity as an Indian Judge. As such, it was celebrated as an early example of Third World Approaches to International Law (TWAIL).

Another example is the minority opinion of Congolese Judge Sayeman Bula-Bula in the DRC v. Belgium case before the ICJ (2000). Congo filed a lawsuit after Belgium issued an international arrest warrant against a former Congolese Minister of Foreign Affairs, Abdoulaye Yerodia Ndombasi, suspected of involvement in murder. The majority rejected Congo’s claims, explaining the temporary nature of the Foreign Minister’s immunity. But Bula-Bula’s minority opinion argued that, considering Belgium’s colonial history in Congo, it was inappropriate for Belgium to judge the suspect. As I have argued in a 2011 paper, Bula-Bula does not say that the former foreign minister still enjoys immunity. Rather, even though in principle his prosecution could not be precluded, Belgium should not be the country to prosecute, because of its bloody history in Congo. Such an opinion could only come from a Congolese judge.

Shoa and Apartheid

The UN and the foundational human rights instruments emerged after World War II. In 2021, when Netanyahu responded to the ICC investigation on the Situation in Palestine, he returned to this foundational moment: “the court established to prevent atrocities like the Nazi Holocaust against the Jewish people is now targeting the one state of the Jewish people.” The International Criminal Court was established in 2002, largely in response to events in Rwanda and the Balkans in the 1990s. Netanyahu’s historical context, only partially accurate with regard to the ICC, is indeed correct when it comes to the Convention that Israel is now accused of violating. The Genocide Convention was signed in 1948 to prevent atrocities like the Holocaust.

Aside from one of the world’s preeminent jurists, Aaron Barak is also, of course, a Holocaust survivor. And this biographical fact may become crucial in his decision in the case against Israel regarding genocide. In bringing the case, South Africa is invoking its own history as a country that has overcome apartheid, now pointing to a new culprit. The ad hoc judge South Africa appointed is a child of that era. Dikgang Moseneke, as the Wikipedia entry about him tells me, “joined the Pan-Africanist Congress (PAC) at the age of 14. The following year he was arrested, detained, and convicted of participating in anti-apartheid activity.”  To compete with such a strong historical narrative, an equally strong narrative must be marshalled. It will thus be interesting to see if Barak’s opinion will refer, among other things, to his own experience during the holocaust. I took a look at the Yad Vashem website and recalled: as an 8-year-old child, Barak was smuggled from the ghetto in a sack of potatoes.

Minority opinions based on judges’ identities have considerable power. Imagine that a judge who is a Holocaust survivor is in the minority when deciding an important ICJ case on the Genocide Convention. Relying on life experience generates empathy among readers, and mustn’t come at the expense of technical legal expertise. It also does not need to cover the entire decision. A single word or even a hint may suffice, and have enormous rhetorical and cultural power.

I think it would not be exaggerated to say that the appointments of both ad hoc judges carry with them a measure of what political theorists call “political theology”. In both cases, the very body of the judge and his own personal suffering is made to represent the collective suffering of the respective community. Barak has suffered the shoa as a boy so that we do not all have to suffer another shoa. Dikgang has suffered apartheid as a boy so that we do not all have to suffer another apartheid. In Paulinian theory, the point of correspondence between personal suffering and collective deliverance is the body of Christ.

However, using the personal memory of the Holocaust in Israel’s legal defense is a risky endeavor. Such a strategy may reinforce the manipulative use of the Holocaust, which the Israeli government has been promoting for a long time now. Is it desirable to have a judicial document that asks its readers to choose between condemning apartheid and condemning the Holocaust? What does such an opinion mean for the Palestinian people? An ICJ opinion that would rest on the experience of its author as a survivor of the holocaust may send an ominous message to the readers: it’s a zero-sum game. Choose the right side in this war.