Aharon Barak speaks at his home in Tel Aviv on Nov. 1.Nathan VanderKlippe/The Globe and Mail
The Office of the United Nations High Commissioner for Human Rights has warned that Israel’s strikes on a refugee camp in Gaza may be “disproportionate attacks that could amount to war crimes.” The head of the International Criminal Court says blocking relief supplies to Gaza “may constitute a crime within the court’s jurisdiction.” Europe’s top diplomat said he is “appalled” at the number of dead Palestinians. Reporters Without Borders has demanded a war-crimes investigation into the killing of Palestinian journalists.
But Israel’s pre-eminent jurist, a man who spent 11 years as president of the Supreme Court of Israel and shaped the national role of its courts, said he has seen no evidence to date that his country has violated international humanitarian law in this war.
Indeed, Aharon Barak said, the rules around collateral damage allow for the killing of militants even if it leads to the death of children. Mr. Barak himself helped to define those rules for Israel with a 2006 ruling that found harm to innocents can be accepted so long as it is proportional to the military advantage gained.
“It may be proportional to kill five innocent kids in order to target their leader,” Mr. Barak, 87, said in an interview Wednesday. More than 15 years after his retirement from the court, his views remain deeply influential in a country that reveres his judicial contributions.
Israel does have a duty to minimize civilian casualties, he said, but such judgments must take into account more than a simple tally of the dead. On Tuesday, for example, an Israeli attack killed scores of people in the heavily crowded Jabaliya refugee camp, with authorities in Gaza, whose estimates cannot be verified, reporting 50 deaths. Israel said it successfully targeted Ibrahim Biari, a Hamas commander.
Killing 50 civilians to ensure the death of one commander would constitute “a breach of the collateral damages rule,” Mr. Barak said. But it would be considered acceptable if Israel also accomplished other objectives, such as attacking additional militants or destroying underground tunnels. The Israeli army said the Jabaliya attack killed “a large number of terrorists who were with Biari,” and collapsed an “underground terror infrastructure.”
Few inside Gaza would agree with Mr. Barak. The Israeli army is seemingly intent on “killing everyone,” said Hasan Jaber, a prominent Palestinian journalist who has aided correspondents from The Globe and Mail during visits to Gaza prior to the onset of war. “They are shooting everything that moves,” he said.
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Asked if Israel is justified in its actions, he responded: “This world is disgusting without morals.”
The UN Human Rights office, meanwhile, said on Twitter that “the high number of civilian casualties & the scale of destruction” in Jabaliya, which Israel struck again Wednesday, raise war-crimes concerns.
Earlier this week, the United Nations Relief and Works Agency for Palestine Refugees in the Near East said 64 of its staff had been killed in Gaza. In a statement, it said “proportionality and precaution must be applied at all time to protect civilians including UN/aid workers and premises.”
“We do lament the civilian loss of lives,” the agency said.
On Oct. 7, Hamas militants massacred more than 1,400 Israelis.
Israel’s war in response, local authorities say, has killed more than 8,800 Palestinians, mostly women and minors. Hospitals, churches and mosques have been hit. Gaza remains under partial siege, with relief trickling in far more slowly than before the war.
Mr. Barak argued that it is in Israel’s interests to allow aid into Gaza, but perhaps not the fuel required to power water pumps and hospital intensive-care units. Hamas, too, needs gasoline, he said, and “us providing the gas means to provide them with the ability to fight against us.”
Israel’s reasons for war, Mr. Barak added, are just: the protection of the state of Israel and its citizens. “Should people who were massacred try to make an operation so that it will not be repeated? The answer is, of course.”
Mr. Barak has been a vocal critic of Benjamin Netanyahu and believes the Prime Minister’s political career is now finished. He has no criticism, however, of how Israel’s leadership is conducting the war.
“I agree totally with what the government is doing,” he said.
The Oct. 7 attack on Israel reminded him of his own childhood. Born in Lithuania in 1936, he was living in the Kovno ghetto at the age of 8 when German troops barged into Jewish homes, collected children and put them to death. He was saved by his mother, who hid him.
Watching the attacks on Israelis – many of whom also hid inside their homes – “I said to myself, ‘It reminds me of what of what happened to me in 1944. Even worse,’ ” he said. “Let me tell you that every Israeli has this kind of story in his mind.”
Mr. Barak’s views have been consequential not just in Israel. His work has been cited by Canadian jurists and has helped to shape Canada’s understanding of the principle of proportionality. In his apartment in Tel Aviv, a cabinet displays a University of Toronto coffee mug – he has lectured frequently at the university’s faculty of law – and a small sculpted polar bear he received as a gift from a Canadian justice minister.
In Israel, one of his contributions was the phrase “the legitimate right of the Palestinian peoples,” a formulation that became an important part of the 1978 Camp David Accords that sought to provide autonomy to Palestinians.
Today, he said, the Palestinians’ right to life is not at odds with their homes being bombed. “We would be violating their right to life only if we do not fulfill the international humanitarian law,” he said.
Israel’s efforts to persuade people in northern Gaza to leave for the southern parts of the strip have helped to fulfill its duty to mitigate collateral damage, he said, no matter the capacity of people to relocate.
“If they move to the south, if the building is empty, the collateral damage problem is solved,” he said.
“We have the right to bomb those buildings,” he said – not as a means to destroy homes, but to ensure structures can’t be used for military purposes.
Many Palestinians have accused Israeli forces of waging a genocidal war in Gaza. Mr. Barak argues that such a label applies only to those who attacked Israel on Oct. 7.
“I do think that what they have done to us is genocide. Because they have done it to kill Jews,” he said. Israel’s war, he said, does not constitute revenge. The massacre of Israelis was conducted by people who want “to destroy us. And what we are doing is to prevent them from doing it again.”
-With files from Mark MacKinnon