Retired Supreme Court justice reflects on Israel's future in a troubled Mideast

By
June 17, 2017 15:58

Elyakim Rubinstein, now 70, the legendary peacemaker, or as he referred to himself at his Tuesday retirement ceremony from the Supreme Court – “a warrior for peace.”




JUSTICE ELYAKIM RUBINSTEIN at his retirement ceremony at the High Court in Jerusalem

JUSTICE ELYAKIM RUBINSTEIN at his retirement ceremony at the High Court in Jerusalem. (photo credit:YONATAN SINDEL/FLASH 90)

Elyakim Rubinstein tells a story about a 1983 meeting with an Israeli minister who opposed the Camp David Accords with Egypt, which Rubinstein helped negotiate.

He said the minister told him, “Look, if this is hopeful in another 15 years, I’ll think the price was worthwhile.” Rubinstein told the story in 2003 as a metaphor for hope and ultimately reaching peace.

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This was Rubinstein, now 70, the legendary peacemaker, or as he referred to himself at his Tuesday retirement ceremony from the Supreme Court – “a warrior for peace.”

But that is only half of his story.

Where has Rubinstein’s greatest contribution to or influence on the country been? There may well be no one alive who has fulfilled the variety of crucial roles for Israel that Rubinstein has – from peace negotiator to cabinet secretary to attorney-general to deputy supreme court chief justice.

Roughly speaking, his career can be divided into peacemaker-statesman in the first half, and jurist in the second.

As cabinet secretary and peace negotiator, Rubinstein showed unfettered optimism and a long-term view of history. Even negotiations that were not successful, he viewed as contributing toward the long march toward peace in the Middle East.

At his July 1994 speech as chief Israeli negotiator of the Israel-Jordan Peace Treaty, he said that the September 1993 and May 1994 Oslo Accords with the Palestinians “have created new possibilities for involving Jordan in the peace process in a more overt manner.”

“The new horizons opened up by the Madrid Peace Conference of 1991 have, for the first time, created a political negotiating framework for Israelis and Jordanians to sit around a table and discuss peace,” he said.

Looking back, many view the Madrid conference and the Oslo negotiations as false starts. Rubinstein himself later said that the Palestinians were not “ripe” for a deal at Camp David II in 2000.

But in the heat of negotiations with Jordan, Rubinstein highlighted that even those ultimately-stalled negotiations had positive impacts.

At Tuesday’s event, he listed all his negotiations with Israel’s neighbors, including failed ones with Syria and Lebanon, as activities of which he was proud.

This outlook is likely a result of his big-picture view of history and his experience of achieving far more in Camp David I than he thought was possible.

He told a 2003 conference on the Egypt treaty, “I must say that on the eve of Camp David, if you’d asked me if there was a chance for an agreement after the end of the meeting, I would have been very, very skeptical... And I must say now... that the Camp David conference succeeded beyond the most optimistic scenarios.”

In fact, he said that he and his then-boss, foreign minister Moshe Dayan, would have called it a win if negotiations simply continued and did not break down.

“I think we should never, ever lose hope for peace... we should never tire, because we have all of these difficulties; we should never give up the hope... Looking to the more remote future, if the Palestinian leadership emerges, I am confident that we can reach an agreement.”

What about Rubinstein as jurist? In a 2015 speech in Canada, Rubinstein said that Israel’s Supreme Court tries to, “be balanced, be reasonable, proportionality is a major consideration... Trying to cope with terrorism with legal means is not easy... We are not perfect, we make mistakes. But look at our record... We try to do our best in a complex situation.”

He gave examples where he said the court was not afraid to be at odds with the military.

But the examples he gave are not recent and were by far the exception to the rule in his stances.

Overall, Rubinstein’s legacy on national security issues has been to give legal support to the security establishment.

In a major December 2015 decision relating to Israel’s controversial policy of demolishing the homes of Palestinian terrorists, Rubinstein gave blanket deference to the security establishment’s view that the demolitions were necessary and constitutional.

Menachem Mazuz, a colleague both as a former fellow attorney-general (and no “softy” on security), dissented. Mazuz wrote that blanket deference and permitting most house demolitions might contradict Israel’s basic laws, passed years after the court ruled home demolitions as permissible.

Also, whereas Rubinstein gave little credence to virtually unanimous international criticism of Israel on the issue, Mazuz was bothered that even most of Israel’s friends view the policy as a violation of international law.

Rubinstein also showed his colors as a moderate conservative on issues where long-term issues of state and politics intruded.

An example was the Anti-Boycott Law, aspects of which the Supreme Court, including Rubinstein, approved in April 2015 by a razor thin 5-4 majority.

The law permitted various kinds of legal retaliation by private individuals against left-wing groups for calling for boycotts against either Israel or the settlements.

Rubinstein had no mixed feelings or qualms and was ready to uphold the law’s attack of boycotting the settlements unapologetically.

But in areas where human or minority rights do not implicate broader state and political issues, Rubinstein surprised many with a line of liberal rulings.

His final two rulings from the bench at his retirement, ordering the state to give prisoners larger cells and to allow African migrants in the Holot open detention center to bring more belongings with them into the facility, both showed his liberal colors.

His rulings on religion and state were overwhelmingly liberal. Some in the haredi sector referred to him as their nemesis even more than some secular justices who might be more deferential simply because of a lower familiarity with religious attitudes.

Whether on mikvaot (Jewish ritual baths), conversions or gender segregation on buses, the vast majority of the time Rubinstein ruled in favor of non-orthodox and secular persons’ rights.

Rubinstein was also unimpressed and unafraid of political pressure when he saw himself as defending society’s weaker sectors, such as in his vote with a split 4-1 majority to strike down Prime Minister Benjamin Netanyahu’s natural gas policy.

At an unprecedented hearing that Netanyahu personally attended, Rubinstein made the prime minister wait for nearly 15 minutes before he and the other justices entered the room, something the prime minister was not used to.

Then Rubinstein took attendance of several dozen lawyers before recognizing Netanyahu. After around 30 minutes of the prime minister speaking, he also twice lightly encouraged him to wrap up his remarks.

His legacy as a jurist may possibly have been to defy labels, expressing a stubborn pragmatic streak.

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