Composition of Israeli defence team at ICJ shows it takes genocide case seriously

South Africa has accused Israel of attempting to carry out a genocide in Gaza in a case that has received wide global backing

Israel's Legal Counselor Tal Becker, lawyer Malcolm Shaw, and Gilad Noam, Deputy Attorney-General attend the ICJ prior to the hearing on the genocide case against Israel in The Hague on January 11, 2024.
AFP
Israel's Legal Counselor Tal Becker, lawyer Malcolm Shaw, and Gilad Noam, Deputy Attorney-General attend the ICJ prior to the hearing on the genocide case against Israel in The Hague on January 11, 2024.

Composition of Israeli defence team at ICJ shows it takes genocide case seriously

Israel has decided to send a team of legal experts to defend itself against accusations raised by South Africa that it is carrying out a genocide in Gaza.

The mere decision by Israel to send representatives is notable, as Israel generally refrains from engaging with such international institutions, viewing them as being biased against it.

But this time, the country decided to defend itself against such accusations. Israel takes this case seriously and appears to be betting that its team can present a convincing case against claims of genocide, helped in no small part by its leading member, Malcolm Shaw KC.

Read more: UN court hears South Africa genocide case against Israel

British barrister and friend of Israel

Shaw, a British barrister with extensive experience in humanitarian law and a professor at the University of Essex, is a renowned expert on international law, specific territorial disputes, and genocide. He is also a known friend of Israel who teaches a regular class at the Hebrew University in Jerusalem and studied there.

The British lawyer can count on his wide experience: This is not the first time Shaw will appear in front of the International Court of Justice, as Shaw also represented the UAE, Serbia, and Cameroon in other cases.

He also took cases in front of other international institutions for Malaysia, Ukraine, Azerbaijan, Cyprus, Germany and Ireland. Shaw’s appointment means Israel chose expertise over showmanship, dashing, for instance, rumours that it could appoint controversial US lawyer and Harvard Professor Alan Dershowitz.

Beyond the ICJ, Shaw appeared in front of as diverse entities as the European Court of Human Rights, the European Court of Justice, the Court of Final Appeal in Hong Kong, the High Court of Ireland, the UK Supreme Court, the House of Lords, the Court of Appeal and the High Court of England and international arbitral tribunals. He certainly is a formidable adversary to face in court.

Reuters
British jurist Malcolm Shaw looks on as judges at the ICJ hear a request for emergency measures by South Africa, who asked the court to order Israel to stop its military actions in Gaza in the Hague, Netherlands, January 11, 2024.

Shaw also specifically knows the field in question, having written a book titled Genocide and International Law. Israel likely hopes that Shaw’s extensive experience will negate the arguments presented by South Africa’s own team, which presented its case yesterday.

The case relies both on evidence from Gaza and on a series of statements issued by various Israeli officials who called for the expulsion of Palestinians from Gaza or used dehumanising language against them.

Shaw will indeed have to contend with the fact that many Israeli officials have made outrageous statements, though he may argue that those are mostly political and populistic in nature.

Shaw will indeed have to contend with the fact that many Israeli officials have made outrageous statements, though he may argue that those are mostly political and populistic in nature.

Damage control

Notably, after months of largely failing to do anything to stop his ministers from making inflammatory remarks (and making some himself), Israel's PM Benjamin Netanyahu issued a public statement claiming Israel was fighting Hamas rather than Palestinians, had no intention to displace Gazans, and worked in full compliance with international law.

Bibi's statement (made in English rather than Hebrew) won't make Shaw's work any easier. Despite his extensive experience, the British barrister may be taking on the case of his life.

He won't be alone, of course. Shaw will be assisted by three newly recruited lawyers, as well as a number of advisors from the Ministry of Justice.

In the lead-up to the hearing, a team had also been set up with members of the IDF Prosecutor's Office taking a role in developing Israel's defence. Israel is also quietly pressing its allies to make statements noting that it has transferred humanitarian aid to Gaza.

Israel is quietly pressing its allies to make statements noting that it has transferred humanitarian aid to Gaza.

Father of Israel's 'Judicial Revolution'

Another sign that Israel is taking this case seriously comes from the judge's bench. While not technically on the country's defence team, Israel is also sending prominent judge Aharon Barak as one of the judges in the cases.

Parties to a dispute can ask to send one of their own judges should they not have representatives within the 15 permanent members of the courts. Israel and South Africa are sending their own, respectively; both were sworn in yesterday.

Aharon Barak's name may ring a bell to those who followed the controversial judicial reform Netanyahu has been trying to push in 2023. He was appointed as a member of Israel's Supreme Court in 1978 and served as its President from 1995 to 2006.

As such, he became the father of what some in Israel have called the "Judicial Revolution": A change that saw the Supreme Court take a more active role in supervising government laws and decisions.

Netanyahu's 2023 judicial reform (which its opponents call a "judicial coup") was, in no small part, aimed at reversing this Judicial revolution. Barak himself took some notable flak from Netanyahu's allies, who are still fuming at his nomination.

One of the government's ministers even said Barak should sit in jail, and a right-wing TV personality close to Bibi dubbed Barak "the most dangerous man in Israel".

It's safe to say Barak and Netanyahu don't agree on much, which may be why Netanyahu picked him: Barak will not be seen as Netanyahu's representative, but a representative of Israel, and a respected judge whose opinion shouldn't be dismissed as biased.

Uphill battle

Barak is also a Holocaust survivor, which may be relevant in such circumstances. But while the decision may have been made on optics, the fact is that Barak is facing an uphill battle.

He is only one out of 17 judges, some of whom have been appointed by countries critical of Israel. Although, as a judge, he did engage in legal work surrounding the fight against terrorism, he also isn't exactly an international law expert, which may play against him in this specific court.

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