At the age of five, Aharon Barak was rounded up by the Nazis along with his parents and 29,000 other Lithuanian Jews, and forced into the Kovno Ghetto. This hellish experience had a profound effect on his later career as one of Israel’s legal giants, staking out the preservation of human rights as his lifelong aim and gaining unprecedented legal powers for the Supreme Court to assure that those human rights were honored.After the Holocaust, young Aharon, one of the meager handful of ghetto occupants who survived, changed his name from Brick to Barak, traveled for two years across Europe, and finally reached pre-state Palestine in 1947.Years later, Barak’s time in the ghetto brought him to certain conclusions: the need for a Jewish state, the need to safeguard human rights, and the need to balance the two. “If we had had a state during World War II that would have cared about Jews all over,” Barak tells The Jerusalem Report, “things might have been different.”As Israel’s most senior judge – he was Chief Justice of the Supreme Court from 1995 to 2006 – Barak did not allow the state’s needs to be the sole consideration; he wanted to protect human rights, the dignity of the individual. While mitigating state power in favor of these rights, Barak managed to cement the Supreme Court’s reputation as a powerful, independent institution.A state does not have to be inherently evil, he contends. “A state does not have to be a villain that a constitution should protect people against. The Jewish state is a dream, something worth fighting for, something that is essential for us.”Now, at 76, six years after retiring from the Supreme Court, Barak lectures at the Interdisciplinary Center in Herzliya and Yale Law School. His round glasses and wavy gray hair certainly fit the image of a learned professor. Last week, Barak attended the Yale Law School Global Constitutional Seminar in the Hague, Netherlands.Faced with balancing security needs with human rights during the second intifada and the wave of bloody terrorism, Barak and the rest of the Supreme Court justices usually came down on the side of the state and its defense requirements. But scarred by the brutal Nazi regime, Barak vowed that his court would never allow the state to grow so powerful that it squashed human rights.“What the Germans tried to do was not just to kill us, but to treat us as non-human,” says Barak, with a rare show of emotion. “We were dust. Dust. For me this is a never-again situation. We were murdered in the ghetto but we did not lose our humanity.” He recalls the tangible symbols of that humanity within the ghetto – the theater group, the orchestra, but especially the laughter.That sense of humanity required, from Barak’s perspective, that the Supreme Court act as a moral or mitigating force in relation to the powers of the state. One of his greatest contributions, suggest legal scholars, was to make the Court a moderating influence, keeping the state from running amok as it defended itself against its enemies. The rule of law and democratic values must prevail, Barak insists, not only when Israel is at peace but, most importantly, when it confronts the bitter sting of terrorism.Accepting that at times a democracy must fight with one hand tied behind its back, Barak promoted the bold, unfashionable argument that a state must act according to the rule of law, even when fighting terrorism.No better example of that exists than Barak’s controversial ruling in December 2006 – his last, coming three months after his retirement date – in which he backed Israel’s right to engage in targeted assassinations of Palestinian terrorists. The decision gave a green light to the state to carry out the killings, but laid down strict criteria for the state’s security agencies: “convincing information” of the target’s terrorist activities, the avoidance of assassination if “less harmful means” are possible, a thorough investigation after the attack, and maximum effort to minimize harm to innocent civilians.The law was a natural fit for the young Aharon Barak. He liked its order, its “architecture”, he says. A legal virtuoso in his 20s and 30s, he enjoyed a swift career trajectory that began in the late 1950s, during his time in the Israel Defense Forces, where he worked in the office of the economic adviser to the IDF Chief of Staff.But professional success was not something he pursued at any price. While interning with the attorney general’s office in 1961, prosecutors invited him to join the trial of Adolf Eichmann, one of the architects of the Final Solution. As a Holocaust survivor, Barak had no desire to dredge up horrific childhood memories, and chose not to participate in prosecuting Eichmann.In 1963, he obtained his doctorate in law at the Hebrew University of Jerusalem. Five years later, at the age of 31, he became a law professor, and seven years after that, dean of the Hebrew University’s law school.In 1975, the year he won the Israel Prize for legal research, Barak was appointed attorney general, a move that paved the way for him to rule on the nation’s most important legal issues.One of his most highly publicized legal decisions came in April 1977, after a newspaper revealed that then-Prime Minister Yitzhak Rabin, during his stint as the ambassador to the US from 1968 to 1973, had kept a foreign bank account containing $20,000. The possession of a foreign bank account was illegal at the time, and carried a sentence of up to three years in jail and a fine three times the amount in the account. In the 35 years since the case, Barak has rarely spoken publicly of how he decided whether a sitting prime minister should stand trial.As Rabin’s name was on the bank account he shared with his wife Leah, it initially seemed that the law demanded prosecution of the two. But Rabin quickly announced his immediate resignation as prime minister, which led Barak to determine that he had paid a high enough price. “Rabin’s stepping down right away was tragic,” says Barak, who chose to prosecute only Leah Rabin.She was fined 250,000 Israeli pounds (the equivalent of $27,000) and given no jail time.“The way the Rabin affair was handled prevented us from having an Israeli Watergate,” Barak says. “The importance of the Rabin affair is that no one, including the prime minister and his wife, is above the law.” A year and a half later, Attorney General Barak found himself at the center of the Middle East conflict, serving as legal adviser to the Israeli delegation at the Camp David peace talks that would eventually lead to the 1979 Israel-Egypt treaty.More than three decades on, Barak wishes that Israel’s leaders had acknowledged back then the right of the Palestinians to their own state – in today’s parlance, a two-state solution – which might have ended the conflict that is still going on. “If we had had [Israelis believing in] a two-state solution then, we could have finished it.”“But,” he continues, “the parties were not ready and that’s fine. My role as attorney general was not to make them change their minds.”There was a situation in which Barak wished that he and his fellow Supreme Court justices could have taken a more activist pose – publicly defending the Court against attacks from the ultra-Orthodox religious community. To the ultra-Orthodox, Barak was in charge of a “left-wing” court that took decisions – overturning Knesset legislation – that discriminated against their community. Eager to answer publicly to such accusations, Barak nonetheless held his fire for the most part, believing that it was undignified for Supreme Court justices to engage in a public debate with anyone, including its religious critics.“The ultra-Orthodox felt that they were not fairly represented on the Supreme Court,” recalls Barak. To them, “we are not a court. For them we are the non-Jewish court. We are not kosher. These attacks were based on a misunderstanding of what the judges were doing.”Yet what irritated Barak the most was what he felt was an inappropriate attack from then-Justice Minister Daniel Friedman in 2008. In an interview with the Hebrew daily Yedioth Ahronoth, Friedman accused the Supreme Court of being allied with the left-wing party Meretz and the Arabs. Barak feared that such a pronouncement from the justice minister, rather than a member of the ultra-Orthodox community, could validate previous ultra-Orthodox assaults and encourage new vitriol against the Court.And so he condemned the attacks as “not responsible”, saying, “The Supreme Court is not a branch of any political party.”Indeed, in legal circles Barak is best remembered for broadening the powers of the Supreme Court. He won worldwide recognition for favoring an active Supreme Court that possessed the power to review and strike down legislation. Barak’s activism seemed all the more bold because the State of Israel possesses no written constitution to grant the Court such power.He was considered a revolutionary, even though he believed he was simply standing on the shoulders of his predecessors.The case that cemented this expansion of the Court’s powers involving Bank Mizrahi came in 1995, when Barak ruled that the Court had the authority to review Knesset legislation.In his retirement, Barak seeks to play down the judicial activism for which his critics have assailed him. “The life of law is evolution, not revolution,” Barak observes.“I don’t want to minimize my role. But I don’t want to maximize it either.”In reality, Barak did broaden the Court’s powers, due to a vacuum left by politicians who had given up on attempts to pen a final constitution. Unable to accommodate the substantial differences between ultra-Orthodox and secular Jews, and between Israeli Jews and Israeli Arabs, the politicians had found it impossible to formulate an all-encompassing document.In the Bank Mizrahi case, Barak played a significant role in helping the State function without a written constitution.After reaching a similar impasse in 1951, the Knesset had adopted eleven Basic Laws, dealing with fundamental issues such as the status of Jerusalem, the military, and the need to safeguard human rights. In his 1995 ruling, Barak decreed these laws should be taken together as what he termed at the time a “crippled constitution.”“The view of the Supreme Court,” says Barak, “had been that all those eleven Basic Laws were just an introduction to a constitution, chapters of a future constitution. They were not the constitution. What we decided in the Bank Mizrahi case was, no, no, those eleven chapters are already our constitution, the final constitution.”Still, the Barak of today would like the Knesset to turn itself into a constitutive assembly, and try to enact a new written constitution, adding and subtracting Basic Laws, and then submitting the final draft to a public referendum.”I am very much in favor of making an effort,” he says, “because we are one of the very few democracies that has not finalized its constitution. I can’t say that the situation now, in which we have not finished it, is a disaster because we have created a legal structure based on the Basic Laws, which protects human rights, which makes ‘regular’ life in Israel a democracy.”The drafting and acceptance of a final constitution would signify, in Barak’s view, further evolution in the development of the legal system. It would also demonstrate to him that Israel is finally behaving like all other democracies.
