Israel not compromising democracy in terror fight: top jurist

The Supreme Court of Israel WIKI COMMONS PHOTO
The Supreme Court of Israel WIKI COMMONS PHOTO

Combating terrorism in a democracy means fighting with one arm tied behind your back, and Israel is succeeding in doing that while maintaining a Jewish state, the new deputy president of the Supreme Court of Israel told Montreal lawyers.

Elyakim Rubinstein, who has sat on Israel’s highest court since 2004, insisted that Israel’s democracy, including freedoms accorded all citizens, is as healthy as Canada’s despite the ongoing threat to the state’s very existence.

“We have managed to hold up both the flag of freedom and rights, and the flag of security,” said Rubinstein, who was attorney general from 1997 to 2003.

The highest court’s workload is staggering, he noted. Its 15 justices hear 9,000 cases a year (down from 12,000 in 2004), compared to the approximately 80 that come before the Supreme Court of Canada.

Unlike the Canadian judicial system, Israel’s Supreme Court is not for final appeals only, but can be petitioned directly – no need to make one’s way through lower courts, he said. Moreover, a petitioner does not have to be personally involved in the matter, he said.

The court is equally open to Palestinians in the territories, and Rubinstein said they file grievances “daily, not weekly.”

Rubinstein was the guest speaker at the Lord Reading Law Society’s annual Henry Steinberg Memorial Lecture on Nov. 24.

Earlier Rubinstein met in Ottawa with Chief Justice Beverley McLachlin and some other justices of the Supreme Court.

“The Israeli Supreme Court has had a close and ongoing relationship with the Canadian Supreme Court for decades,” he said. “Canada is one of the best friends of the State of Israel and I hope it remains so.”

The Israeli Supreme Court is continually criticized within the country, by some for being too liberal, by others for being too harsh, he said, but its members remain committed to the rule of law and moderation.

“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.”

Rubinstein said the court is often at odds with the military. He offered the example of the time the IDF wanted to bomb a building where they knew the leadership of Hamas was housed, but the Supreme Court vetoed it because there were innocent civilians living in the 15-storey apartment.

He also recalled that the Supreme Court ruled in favour of Palestinian farmers who protested that the security fence was running through their land. The Court ordered that they must have minimal hindrance in accessing their fields, either by having the fence rerouted or by having a guarded gate.

Rubinstein, who earlier in his career was involved in peace negotiations with Egypt and Jordan, stressed that the enemy is not Muslims.

He rather blames “extremist Islam… a nightmare for the civilized world.”

Retired Supreme Court of Canada justice Morris Fish, right, greets Israel’s Supreme Court Deputy President Elyakim Rubinstein JANICE ARNOLD PHOTO
Retired Supreme Court of Canada justice Morris Fish, right, greets Israel’s Supreme Court Deputy President Elyakim Rubinstein JANICE ARNOLD PHOTO

Rubinstein, who describes himself as a religious Zionist, said he is “an avid reader of the Qur’an,” has worked well with Arabs over many years and has Arab friends. (There is one Arab on the Supreme Court.)

He counselled against despair in the face of terrorism, and remains optimistic that a peace breakthrough could happen unexpectedly and suddenly, as it did when Egyptian president Anwar Sadat, in a historic move, came to Israel in 1977.

Rubinstein is confident Israel will remain a “Jewish and democratic state.”

“Israel is a full-fledged democracy, not less than the Canadian democracy, while we are fighting for our existence. We are the only living democracy threatened for its existence by its neighbours,” he said. “And that is black and white, there is no mincing of words – their charter calls for the annihilation of the State of Israel.”

Rubinstein’s lecture was the culmination of a daylong seminar attended by about 60 lawyers on challenges in international law, from the Israeli and Canadian perspectives, organized with Israel’s foreign affairs ministry and the Centre for Israel and Jewish Affairs. Topics covered included “lawfare,” counter-terrorism and boycott, divestment and sanctions.

Among the speakers was Daniel Taub, who recently completed his term as Israel’s ambassador to the United Kingdom, as well as ministry officials from Israel, and a representative of Belgium’s defence ministry.