Seventy-five-year-old retired Supreme Court judge Elyakim Rubinstein’s blood pressure rose last Thursday, not from any pre-existing medical condition but from following proceedings against Israel at the International Court of Justice (ICJ) at The Hague.
“I spent more time watching it on Friday,” he said of the court case accusing Israel of genocide. “Thursday, it wasn’t good for my health to watch.”
Thursday was when South Africa, which has now earned the dubious moniker of Hamas’s legal proxy, made its case against Israel. Friday was when Israel responded.
Is Israel's case strong against South Africa's genocide charges?
“Friday was fine; our team was good,” Rubinstein said. “One thing I can say is that our team did a very good and professional job.”
He also said that were this case to be decided solely on its merits, based purely on legal and professional considerations, “there is no question that our case is far better than the South African/Hamas case. No question about it. But we don’t know whether the judges are independent or whether they are influenced by the policies of their respective states. This we don’t know.”
WALK INTO Rubinstein’s office on the third floor of the Supreme Court building in Jerusalem, where retired judges have offices, and you are immediately struck by two things: the mess and the pictures on the wall.
Well, let’s clarify that. It’s not a mess in the sense of candy wrappers on the floor, or popcorn kernels or coffee stains on the carpet. There is none of that; this is a respected judge’s office, not a college dorm room.
Rather, it’s a mess in the sense that the desk is completely covered with books and scattered papers. Boxes on the floor make it difficult for visitors to put their legs under the desk. Stuffed bookshelves line the walls, volumes of legal tomes competing for space. The room is dimly lit. Wearing a buttoned sweater, Rubinstein sits in a padded chair that leans back. The room feels like a professor’s office on campus – a room crying out for a pipe and a tweed jacket with leather patches on the elbows.
And then there are the pictures on the wall. Over there is a picture of Rubinstein with Moshe Dayan and Aharon Barak. Over here, he is with King Hussein and Shimon Peres. Here with Bill Clinton, there with Anwar Sadat.
And then there is the photo that he seems especially proud of, which is evident because he points it out: Rubinstein making havdalah for then-prime minister Menachem Begin at Camp David during peace negotiations with the Egyptians. Near his desk, as well, is a framed copy of a May 7, 1999, article in The Jerusalem Post by Dan Izenberg titled “A man of style and substance.”
Two portraits are on one wall: one of Begin, with whom Rubinstein worked closely at Camp David, and the other of the 19th- and 20th-century sage Rabbi Yisrael Meir Kagan, popularly known as the Chofetz Chaim after his book of that name that deals with the laws of pure speech and guarding one’s tongue.
Rubinstein has obviously studied that book and internalized its teachings, for he guards his tongue well. In an hour-long interview, he is very careful not to criticize the government, or its ministers, or governmental policy, saying at one point that he doesn’t want to get into what the situation will be politically after the war and who will be in the government because “I still maintain my judicial and civil servant identity.”
But there is one slight exception to that rule, though it has to do not with personalities but rather with policy: He does say that he thought the judicial reform proposal was a “grave mistake.”
“I am not political; I never spoke politically,” he says in his quiet, high-pitched voice. “I was one of those 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 was a public servant for about 50 years, and to go demonstrate against our own government…”
He left that last sentence uncompleted, but the intent was clear and easy for the listener to finish: That was a very difficult thing for him to do.
RUBINSTEIN’S 50 years of public service include an astounding range of positions that put him at the center of Israeli policy at its most crucial junctures.
He was a consul for Moshe Dayan during the Agranat Commission of Inquiry looking into the Yom Kippur War, during which Dayan was the defense minister. Rubinstein served as a negotiator in the peace negotiations with Egypt in 1979 and with Jordan in 1994.
He variously served as the Foreign Ministry’s legal adviser; No. 2 at the embassy in Washington; cabinet secretary under Yitzhak Shamir and Yitzhak Rabin; District Court judge; attorney general during the premierships of Benjamin Netanyahu, Ehud Barak, and Ariel Sharon; and a justice of the Supreme Court for 13 years, serving as its deputy president for the last three of those years.
In short, Rubinstein, who is an adjunct associate professor of political studies and public policy at the Hebrew University of Jerusalem, has pretty much seen it all in his 50 years of public service. So when discussing issues on the current agenda, his mind draws associations that go back decades, and he brings Shimon Peres, Dayan, and Shamir into the conversation, quoting verbatim comments they made to him as if they just spoke to him yesterday.
For instance, when asked whether he thinks that the government’s judicial reform proposal is dead as a result of the war in Gaza and the High Court of Justice’s recent decisions giving it authority to review Israel’s quasi-constitutional Basic Laws and strike down amendments to them, Rubinstein quoted Dayan, who quoted David Ben-Gurion.
“Moshe Dayan, whose assistant I was, said that Ben-Gurion used to distinguish between ‘dead’ and ‘dead and buried.’ He would imitate him,” Rubinstein said. “‘Dead’ can still be revived. ‘Dead and buried’ are gone and doomed.’ I think it is dead, but not dead and buried.”
He is then asked: Does that mean that, with time, the judicial reform could come back in a different manner?
“Yes, but this time, because it failed so far, they will try to do something by agreement.”
Rubinstein said the most essential thing, in his opinion, would be to legislate Basic Law: Legislation. This Basic Law would regulate the legislative process and set the rules regarding what is needed to pass a Basic Law and how that differs from passing regular legislation.
“It is really vital because what has happened so far – and that is the basic reason why the court interfered a few days ago – there was an abuse, a mockery made of the Basic Law concept.”
Basic Laws, he explained, are constitutional chapters. He pointed out that a proposed constitutional amendment in the US must pass by a two-thirds majority in both houses of Congress, and then be ratified by three-fourths of the state legislatures. “Here,” he rued, “it is like the bylaws in a municipality.” That is a situation that needs to be changed, he made clear.
Rubinstein carries copies of some of the Basic Laws in his wallet, as well as a copy of the Israeli Declaration of Independence. Those represent the democratic side of Israel as a Jewish-democratic state. In his shirt pocket, he carries that which represents the Jewish part of the equation: a pocket-sized edition of the Kehati commentary to the Mishna.
Rubinstein explained that he carries the Kehati because “I learn [study] when I am in a meeting that is boring.” As to why he has the Basic Laws and the Declaration of Independence in his wallet, he said rather prosaically, “I teach and lecture, so here it is [for reference].”
“I am not saying the court is perfect or you can’t criticize it. Of course, you can criticize it,” Rubinstein stressed. “But the court is a strategic asset for the State of Israel in many respects.”
THAT THE COURT is a strategic asset for Israel is an argument echoed frequently by those opposed to judicial reform. According to this viewpoint, Israel’s strong, well-respected, and independent judiciary serves as a deterrent against international legal intervention, as it is believed that Israel is fully capable of conducting just and impartial hearings internally.
But yet, Israel has now been dragged to the ICJ. So doesn’t that challenge that argument?
Not at all, Rubinstein said, distinguishing between the ICJ and the International Criminal Court (ICC), which also sits in The Hague.
The ICJ deals with states and is the court in which Israel had to defend itself last week. The ICC, on the other hand, deals with accusations against individuals. It is at the ICC that Israel’s independent judiciary is an important asset because this court generally deals with cases in authoritarian and totalitarian countries where there is no respected, independent judiciary. In any event, Israel is not a signatory to the Rome Convention that set up this court.
When asked how anti-judicial reform advocates can argue that Israel’s judiciary is a strategic asset when Israel is dragged before the ICJ, Rubinstein replied, “Who are those who take us to The Hague? South Africa is a proxy for Hamas.”
Drawing on his excellent memory and long record of public service, Rubinstein recalled that in his capacity as the Foreign Ministry’s legal adviser, he was among those who recommended in the 1980s that Israel remove itself from the ICJ’s “compulsory jurisdiction.”
The compulsory jurisdiction, which Israel abided by for many years, “means that if there is a dispute between you and another member state, you commit to their [the court’s] jurisdiction. We got out of it. I was also very strongly against joining the ICC, the other court; we finally didn’t [join]; it wasn’t easy. I was the head of the delegation in 1988 at the Rome Conference that established the court, and I warned there against politicization.
“Both courts’ members – the judges – are politically appointed or elected, which means they come with a question mark,” he said. “I don’t want to be unfair to say they are not professional people, but the atmosphere is that of a UN institution, and for Israel to expect justice in the UN atmosphere is very doubtful.”
But if Israel removed itself from the ICJ’s “compulsory jurisdiction,” how does it now find itself accused of committing genocide in front of the court?
Because, he responded, Israel is a signatory to the Genocide Convention, and the ICJ is the body with the authority to adjudicate cases related to genocide.
Rubinstein said that he never recommended that Israel pull out of the Genocide Convention, first and foremost because the Jewish people are the preeminent victims of genocide. He noted that a Jewish Holocaust refugee from Poland, Raphael Lemkin, was behind establishing this convention and a key figure in creating the legal framework for making genocide a crime.
Rubinstein said he never imagined that this convention would ever be used against Israel. “We do not commit genocide; that’s the point,” he said. “To be included in the framework of genocide, you have to have intent to eliminate a nation, people, national entity. We are not there.”
Despite what he said were “stupid” and “deplorable” statements made by some after the October 7 massacre, “the State of Israel is not committing genocide. I am speaking as a lawyer, not just as an Israeli. A really objective person – lawyer or judge – can’t find us getting into this framework of genocide. So our legal case is absolutely strong.”
Always cautious about second-guessing the government, Rubinstein would not get into the question of whether it was wise for Israel to agree to take part in the ICJ proceedings in the first place, saying that he was not consulted on the matter. “I assume that they felt we have a strong case and should not shy away from presenting it when accused of genocide,” he said.
He did say, however, that he was pleased that the government sent former Supreme Court president Aharon Barak to be a member of the panel of judges, along with a South African jurist who was also sent, raising the number of judges hearing the case from 15 to 17. Rubinstein has known and worked with Barak for decades.
“He is the most renowned Israeli jurist,” he said. “He is an internationally known scholar with a lot of experience in law and security and is a Holocaust survivor.”
Asked, however, whether even Barak can be expected to influence judges from Lebanon, Somalia, Morocco, Russia, or China, Rubinstein replied, “Maybe not Lebanon and Somalia or those countries, but maybe others. He has a very nice personality.”
Rubinstein, who lost an 88-year-old relative on Kibbutz Be’eri killed by Hamas on October 7, said that Israel’s case is solid. “Let me ask each of the countries that criticize us what they would do had there been an attack on their population in their territory, on the civilian population—men, women, babies, and so on,” he said. “What would any country, including the US and England, do? Let’s imagine there would be a type of invasion from Mexico to Texas; what would the US do? The answer is clear.”
Rubinstein said that while Israel does make mistakes – “the whole event [October 7] and why it happened is a terrible mistake” – he is confident that the orders and instructions from the legal advisers to the IDF commanders conform with international law.
AS TO WHAT the whole farce at the ICJ says about the world and Israel’s place in it, Rubinstein said this is “a very good question, a very sad question. It seems – this time stronger than ever, maybe – that the existence of a Jewish state for certain countries, definitely for certain Arab countries, is kind of a question mark.
“In 1987, I was the cabinet secretary under Yitzhak Shamir, and for over a decade I was following material on antisemitism popping up. I wrote a memo to Shamir in which I said that whoever thought that antisemitism would be in the gutter and that anyone would be ashamed to utter antisemitic language and so on was mistaken. I suggested that we should follow what was going on because there was no organized follow-up – the Mossad was doing some, Nativ was doing some – and he agreed. We established an inter-agency group under my chairmanship, and for six years we reported to the government every year what was going on. It was continued by my successors.
“I remember when I started, I spoke to [Shimon] Peres, who was the foreign minister – I was friendly with him; he was at our wedding many, many years ago – and I said, ‘Give me a [Foreign Ministry] representative [for the inter-agency group],’ and he said, ‘Ely, governments have to deal with the present and the future. Antisemitism is the past; why should we deal with it?’ He was always optimistic. He later changed his mind, but that is not the point.”
Rubinstein stressed that nothing should or can be compared to the Holocaust. Nevertheless, “I do hear [Nazi propagandist Joseph] Goebbels in the arguments made against us. If you repeat a lie time and time again, it sticks and becomes fact.”
Rubinstein said he doesn’t believe it will be possible to uproot antisemitism, which goes back to the Book of Exodus, which is currently being read in synagogues worldwide on Shabbat, and the Book of Esther, which will be read in two months on Purim.
“I don’t say we should despair of fighting it. I don’t think we can uproot it totally,” he said. “It goes back to Pharaoh and Haman. I can’t believe it will be uprooted. But we should not shy away from fighting it – diplomatically, through public diplomacy, and legally.”
Which is precisely what Israel did last week at The Hague.