Seventy-five-year-old retired Supreme Courtroom choose Elyakim Rubinstein’s blood strain rose final Thursday, not from any pre-existing medical situation however from following proceedings towards Israel on the Worldwide Courtroom of Justice (ICJ) at The Hague.
“I spent extra time watching it on Friday,” he mentioned of the court docket case accusing Israel of genocide. “Thursday, it wasn’t good for my well being to look at.”
Thursday was when South Africa, which has now earned the doubtful moniker of Hamas’s authorized proxy, made its case towards Israel. Friday was when Israel responded.
Is Israel’s case sturdy towards South Africa’s genocide costs?
“Friday was wonderful; our staff was good,” Rubinstein mentioned. “One factor I can say is that our staff did an excellent {and professional} job.”
He additionally mentioned that have been this case to be determined solely on its deserves, primarily based purely on authorized {and professional} issues, “there isn’t a query that our case is much better than the South African/Hamas case. No query about it. However we don’t know whether or not the judges are unbiased or whether or not they’re influenced by the insurance policies of their respective states. This we don’t know.”
WALK INTO Rubinstein’s workplace on the third ground of the Supreme Courtroom constructing in Jerusalem, the place retired judges have places of work, and you’re instantly struck by two issues: the mess and the images on the wall.
Properly, let’s make clear that. It’s not a large number within the sense of sweet wrappers on the ground, or popcorn kernels or espresso stains on the carpet. There’s none of that; this can be a revered choose’s workplace, not a university dorm room.
Somewhat, it’s a large number within the sense that the desk is totally coated with books and scattered papers. Containers on the ground make it troublesome for guests to place their legs beneath the desk. Stuffed bookshelves line the partitions, volumes of authorized tomes competing for area. The room is dimly lit. Sporting a buttoned sweater, Rubinstein sits in a padded chair that leans again. The room appears like a professor’s workplace on campus – a room crying out for a pipe and a tweed jacket with leather-based patches on the elbows.
After which there are the images on the wall. Over there’s a image of Rubinstein with Moshe Dayan and Aharon Barak. Over right here, he’s with King Hussein and Shimon Peres. Right here with Invoice Clinton, there with Anwar Sadat.
After which there may be the picture that he appears particularly pleased with, which is obvious as a result of he factors it out: Rubinstein making havdalah for then-prime minister Menachem Start at Camp David throughout peace negotiations with the Egyptians. Close to his desk, as properly, is a framed copy of a Could 7, 1999, article in The Jerusalem Publish by Dan Izenberg titled “A person of favor and substance.”
Two portraits are on one wall: considered one of Start, with whom Rubinstein labored carefully at Camp David, and the opposite of the Nineteenth- and Twentieth-century sage Rabbi Yisrael Meir Kagan, popularly often known as the Chofetz Chaim after his e book of that title that offers with the legal guidelines of pure speech and guarding one’s tongue.
Rubinstein has clearly studied that e book and internalized its teachings, for he guards his tongue properly. In an hour-long interview, he’s very cautious to not criticize the federal government, or its ministers, or governmental coverage, saying at one level that he doesn’t wish to get into what the scenario might be politically after the warfare and who might be within the authorities as a result of “I nonetheless keep my judicial and civil servant identification.”
However there may be one slight exception to that rule, although it has to don’t with personalities however somewhat with coverage: He does say that he thought the judicial reform proposal was a “grave mistake.”
“I’m not political; I by no means spoke politically,” he says in his quiet, high-pitched voice. “I used to be a type of who demonstrated on the judicial matter—the [Israeli] flag [he protested with] is behind you. I did oppose that, and for me it was traumatic. I used to be a public servant for about 50 years, and to go reveal towards our personal authorities…”
He left that final sentence uncompleted, however the intent was clear and straightforward for the listener to complete: That was a really troublesome factor for him to do.
RUBINSTEIN’S 50 years of public service embody an astounding vary of positions that put him on the middle of Israeli coverage at its most important junctures.
He was a consul for Moshe Dayan through the Agranat Fee of Inquiry wanting into the Yom Kippur Struggle, throughout which Dayan was the protection minister. Rubinstein served as a negotiator within the peace negotiations with Egypt in 1979 and with Jordan in 1994.
He variously served because the International Ministry’s authorized adviser; No. 2 on the embassy in Washington; cupboard secretary beneath Yitzhak Shamir and Yitzhak Rabin; District Courtroom choose; legal professional normal through the premierships of Benjamin Netanyahu, Ehud Barak, and Ariel Sharon; and a justice of the Supreme Courtroom for 13 years, serving as its deputy president for the final three of these years.
In brief, Rubinstein, who’s an adjunct affiliate professor of political research and public coverage on the Hebrew College of Jerusalem, has just about seen all of it in his 50 years of public service. So when discussing points on the present agenda, his thoughts attracts associations that return many years, and he brings Shimon Peres, Dayan, and Shamir into the dialog, quoting verbatim feedback they made to him as if they simply spoke to him yesterday.
As an illustration, when requested whether or not he thinks that the federal government’s judicial reform proposal is lifeless on account of the warfare in Gaza and the Excessive Courtroom of Justice’s latest selections giving it authority to evaluation Israel’s quasi-constitutional Fundamental Legal guidelines and strike down amendments to them, Rubinstein quoted Dayan, who quoted David Ben-Gurion.
“Moshe Dayan, whose assistant I used to be, mentioned that Ben-Gurion used to differentiate between ‘lifeless’ and ‘lifeless and buried.’ He would imitate him,” Rubinstein mentioned. “‘Useless’ can nonetheless be revived. ‘Useless and buried’ are gone and doomed.’ I feel it’s lifeless, however not lifeless and buried.”
He’s then requested: Does that imply that, with time, the judicial reform may come again in a special method?
“Sure, however this time, as a result of it failed to this point, they may attempt to do one thing by settlement.”
Rubinstein mentioned probably the most important factor, in his opinion, could be to legislate Fundamental Legislation: Laws. This Fundamental Legislation would regulate the legislative course of and set the principles concerning what is required to move a Fundamental Legislation and the way that differs from passing common laws.
“It’s actually important as a result of what has occurred to this point – and that’s the fundamental cause why the court docket interfered just a few days in the past – there was an abuse, a mockery product of the Fundamental Legislation idea.”
Fundamental Legal guidelines, he defined, are constitutional chapters. He identified {that a} proposed constitutional modification within the US should move by a two-thirds majority in each homes of Congress, after which be ratified by three-fourths of the state legislatures. “Right here,” he rued, “it’s just like the bylaws in a municipality.” That may be a scenario that must be modified, he made clear.
Rubinstein carries copies of a few of the Fundamental Legal guidelines in his pockets, in addition to a replica of the Israeli Declaration of Independence. These symbolize the democratic facet of Israel as a Jewish-democratic state. In his shirt pocket, he carries that which represents the Jewish a part of the equation: a pocket-sized version of the Kehati commentary to the Mishna.
Rubinstein defined that he carries the Kehati as a result of “I study [study] when I’m in a gathering that’s boring.” As to why he has the Fundamental Legal guidelines and the Declaration of Independence in his pockets, he mentioned somewhat prosaically, “I train and lecture, so right here it’s [for reference].”
“I’m not saying the court docket is ideal or you possibly can’t criticize it. In fact, you possibly can criticize it,” Rubinstein confused. “However the court docket is a strategic asset for the State of Israel in lots of respects.”
THAT THE COURT is a strategic asset for Israel is an argument echoed incessantly by these against judicial reform. In response to this viewpoint, Israel’s sturdy, well-respected, and unbiased judiciary serves as a deterrent towards worldwide authorized intervention, as it’s believed that Israel is totally able to conducting simply and neutral hearings internally.
However but, Israel has now been dragged to the ICJ. So doesn’t that problem that argument?
By no means, Rubinstein mentioned, distinguishing between the ICJ and the Worldwide Legal Courtroom (ICC), which additionally sits in The Hague.
The ICJ offers with states and is the court docket by which Israel needed to defend itself final week. The ICC, then again, offers with accusations towards people. It’s on the ICC that Israel’s unbiased judiciary is a vital asset as a result of this court docket typically offers with circumstances in authoritarian and totalitarian nations the place there isn’t a revered, unbiased judiciary. In any occasion, Israel isn’t a signatory to the Rome Conference that arrange this court docket.
When requested how anti-judicial reform advocates can argue that Israel’s judiciary is a strategic asset when Israel is dragged earlier than the ICJ, Rubinstein replied, “Who’re those that take us to The Hague? South Africa is a proxy for Hamas.”
Drawing on his glorious reminiscence and lengthy file of public service, Rubinstein recalled that in his capability because the International Ministry’s authorized adviser, he was amongst those that really helpful within the Eighties that Israel take away itself from the ICJ’s “obligatory jurisdiction.”
The obligatory jurisdiction, which Israel abided by for a few years, “implies that if there’s a dispute between you and one other member state, you decide to their [the court’s] jurisdiction. We obtained out of it. I used to be additionally very strongly towards becoming a member of the ICC, the opposite court docket; we lastly didn’t [join]; it wasn’t straightforward. I used to be the pinnacle of the delegation in 1988 on the Rome Convention that established the court docket, and I warned there towards politicization.
“Each courts’ members – the judges – are politically appointed or elected, which suggests they arrive with a query mark,” he mentioned. “I don’t wish to be unfair to say they don’t seem to be skilled folks, however the environment is that of a UN establishment, and for Israel to anticipate justice within the UN environment may be very uncertain.”
But when Israel eliminated itself from the ICJ’s “obligatory jurisdiction,” how does it now discover itself accused of committing genocide in entrance of the court docket?
As a result of, he responded, Israel is a signatory to the Genocide Conference, and the ICJ is the physique with the authority to adjudicate circumstances associated to genocide.
Rubinstein mentioned that he by no means really helpful that Israel pull out of the Genocide Conference, at first as a result of the Jewish individuals are the preeminent victims of genocide. He famous {that a} Jewish Holocaust refugee from Poland, Raphael Lemkin, was behind establishing this conference and a key determine in creating the authorized framework for making genocide a criminal offense.
Rubinstein mentioned he by no means imagined that this conference would ever be used towards Israel. “We don’t commit genocide; that’s the purpose,” he mentioned. “To be included within the framework of genocide, it’s a must to have intent to remove a nation, folks, nationwide entity. We aren’t there.”
Regardless of what he mentioned have been “silly” and “deplorable” statements made by some after the October 7 bloodbath, “the State of Israel isn’t committing genocide. I’m talking as a lawyer, not simply as an Israeli. A very goal individual – lawyer or choose – can’t discover us moving into this framework of genocide. So our authorized case is totally sturdy.”
All the time cautious about second-guessing the federal government, Rubinstein wouldn’t get into the query of whether or not it was sensible for Israel to agree to participate within the ICJ proceedings within the first place, saying that he was not consulted on the matter. “I assume that they felt now we have a powerful case and shouldn’t shrink back from presenting it when accused of genocide,” he mentioned.
He did say, nevertheless, that he was happy that the federal government despatched former Supreme Courtroom president Aharon Barak to be a member of the panel of judges, together with a South African jurist who was additionally despatched, elevating the variety of judges listening to the case from 15 to 17. Rubinstein has identified and labored with Barak for many years.
“He’s probably the most famend Israeli jurist,” he mentioned. “He’s an internationally identified scholar with numerous expertise in legislation and safety and is a Holocaust survivor.”
Requested, nevertheless, whether or not even Barak could be anticipated to affect judges from Lebanon, Somalia, Morocco, Russia, or China, Rubinstein replied, “Perhaps not Lebanon and Somalia or these nations, however perhaps others. He has a really good character.”
Rubinstein, who misplaced an 88-year-old relative on Kibbutz Be’eri killed by Hamas on October 7, mentioned that Israel’s case is strong. “Let me ask every of the nations that criticize us what they might do had there been an assault on their inhabitants of their territory, on the civilian inhabitants—males, girls, infants, and so forth,” he mentioned. “What would any nation, together with the US and England, do? Let’s think about there could be a sort of invasion from Mexico to Texas; what would the US do? The reply is evident.”
Rubinstein mentioned that whereas Israel does make errors – “the entire occasion [October 7] and why it occurred is a horrible mistake” – he’s assured that the orders and directions from the authorized advisers to the IDF commanders conform with worldwide legislation.
AS TO WHAT the entire farce on the ICJ says concerning the world and Israel’s place in it, Rubinstein mentioned that is “an excellent query, a really unhappy query. It appears – this time stronger than ever, perhaps – that the existence of a Jewish state for sure nations, positively for sure Arab nations, is type of a query mark.
“In 1987, I used to be the cupboard secretary beneath Yitzhak Shamir, and for over a decade I used to be following materials on antisemitism popping up. I wrote a memo to Shamir by which I mentioned that whoever thought that antisemitism could be within the gutter and that anybody could be ashamed to utter antisemitic language and so forth was mistaken. I instructed that we should always comply with what was happening as a result of there was no organized follow-up – the Mossad was performing some, Nativ was performing some – and he agreed. We established an inter-agency group beneath my chairmanship, and for six years we reported to the federal government yearly what was happening. It was continued by my successors.
“I bear in mind after I began, I spoke to [Shimon] Peres, who was the overseas minister – I used to be pleasant with him; he was at our marriage ceremony many, a few years in the past – and I mentioned, ‘Give me a [Foreign Ministry] consultant [for the inter-agency group],’ and he mentioned, ‘Ely, governments must take care of the current and the longer term. Antisemitism is the previous; why ought to we take care of it?’ He was at all times optimistic. He later modified his thoughts, however that’s not the purpose.”
Rubinstein confused that nothing ought to or could be in comparison with the Holocaust. Nonetheless, “I do hear [Nazi propagandist Joseph] Goebbels within the arguments made towards us. In the event you repeat a lie time and time once more, it sticks and turns into reality.”
Rubinstein mentioned he doesn’t consider it is going to be doable to uproot antisemitism, which works again to the Ebook of Exodus, which is at the moment being learn in synagogues worldwide on Shabbat, and the Ebook of Esther, which might be learn in two months on Purim.
“I don’t say we should always despair of preventing it. I don’t assume we are able to uproot it completely,” he mentioned. “It goes again to Pharaoh and Haman. I can’t consider it is going to be uprooted. However we should always not shrink back from preventing it – diplomatically, by means of public diplomacy, and legally.”
Which is exactly what Israel did final week at The Hague.
Discover more from PressNewsAgency
Subscribe to get the latest posts sent to your email.