In the past half-year Amnon Rubinstein has been a candidate for three different posts: president of Israel, minister of justice and chairman of what eventually became the Winograd Committee, which is investigating the Lebanon war of last summer. However, Rubinstein himself does not feel that others are making manipulative use of his name as a non-candidate for sensitive positions. On the contrary: The short-lived candidacies amuse and also flatter him a bit.
In his pleasant office in the Interdisciplinary Center in Herzliya and in his businesslike study in the family villa in Tel Aviv's Tel Baruch neighborhood, it seems as though Rubinstein is more smiling and conciliatory than ever. Even though his criticism of the judicial system is biting and his strategic situation appraisal is gloomy, he gives the impression of someone who has just now come to terms with himself. And before he replies to the interviewer's questions on judicial and other national affairs, it's important for him to mention the two novels he has published in the past two years, as well as the third one, which he has almost completed. There's no doubt about it: Belles letters have become the passion of this man, who has already been a professor, a journalist, a member of Knesset and a cabinet minister.
His first novel, "Hasmicha" ("The Blanket"), describes a complex, multicultural contemporary Israel, but is also laced with a sense of the apocalyptic and eroticism. "Kvish mispar 5" ("Highway No. 5") is a journey from the center to the fringes of the Israeli society. And the book Rubinstein is now working on, which he is convinced will be quite controversial, has a totally apocalyptic point of departure: Tel Aviv under the sea. The streets of Tel Aviv and the towers of Tel Aviv and the Tel Aviv boardwalk are observed through the glass floor of a tourist ship that is cruising the ocean, which has covered what was once the Hebrew metropolis.
He is very much a Tel Aviv type, Rubinstein. Secular, open, energetic, multidisciplinary. Beneath the familiar exterior - solid and a bit dull, belonging to a member of the high bourgeoisie, who in the past 30 years was one of the pillars of academia, of politics and of public discourse in Israel - great energy pulses. At the same time, though, Rubinstein does in fact possess a liberal temperament which is uncommon in the sweaty land of the coastal plain. In an almost English way he seeks equilibrium, stability and complexity. He lashes out against harsh criticisms in language that is quite sharp, and aggressively calls for restraint.
In 1992 Rubinstein played a central role in leading the constitutional revolution of Aharon Barak, the former president of the Supreme Court. For many years he was identified with the Supreme Court and with its conceptual approach. However, Rubinstein gradually distanced himself from the court, in a process which has intensified in recent years. One of the peaks of that process was recorded three months ago, when he added his name to a petition of senior academics against the approach adopted by State Comptroller Micha Lindenstrauss. Today, as the war rages between his good friend Mishael Cheshin, former deputy president of the Supreme Court, and Prof. Daniel Friedmann, the newly appointed minister of justice, Rubinstein's position in the battleground is as clear as can be.
Changes in the court
Prof. Amnon Rubinstein, you support the appointment of Daniel Friedmann as justice minister even though many view it as a gross attack on the rule of law in Israel.
Rubinstein: "Not only did I support the appointment, I also recommended it. The prime minister offered me the post. I did not turn him down, but told him that I recommend two others who are better than me: Prof. Uriel Reichman and Prof. Daniel Friedmann. The one didn't want it, the other did, and that's how the appointment came into being."
You were Ehud Olmert's first choice, but turned the job down?
That's pretty bizarre behavior in this country.
Do you really believe that Friedmann is better than you? Do you really think he will be a worthy justice minister?
"I have known Danny for half a century. He is an exceptional person. A jurist with an international reputation. He exercises balanced judgment, is loyal to the values of the rule of law, is honest in the extreme and modest in the extreme. He has common sense. There is nothing two-faced about him. He is very much suited to the post. He is far more suited to be justice minister than I am."
Aren't you bothered by the allegation that he is a nationalist?
"Friedmann established Shinui [a liberal party] together with me; he can't be a nationalist. With me he signed statements against the settlements. Danny Friedmann is not a nationalist. The suspicion in this regard is tainted with insanity."
Justice Cheshin is very worried that he will raise a hand against the judicial system.
"Danny acts in good faith. He will do nothing extreme. His remarks were directed against a certain frame of mind in the court. There is also a difference between writing an article for a newspaper and one's actions as minister of justice. His appointment will strengthen the system, not weaken it."
Do you, like him, support the establishment of a court for constitutional matters?
"I am against that. But to avert it, certain changes need to be made in the Supreme Court. There have to be lawyers on the Supreme Court. It is a considerable shortcoming that for the past 30 years there have been no lawyers on the highest court. There should be fewer people brought in from the realm of the attorney general's office and from the state prosecution. There has to be a cooling-off period between working for the prosecution and serving in the court. There is place to appoint an Arab Muslim or Druze justice. Another Mizrahi [referring to Jews of Middle Eastern descent] justice is also desirable. The court should become more diversified. It does not have to represent the public, but it should reflect it."
Do you, like Prof. Friedmann, think that the method of choosing judges in Israel needs to be changed?
"Basically our method is excellent. It ensures a nonpolitical court, and that is a tremendous asset of Israeli democracy. But a gap has opened up between the method of appointments, which suits a professional court, and the court's new role as a court for constitutional affairs that rules in issues relating to values. Therefore I propose that candidates for the Supreme Court undergo a hearing in which they will describe their moral worldview.
"I am also against having the three justices who serve on the appointments committee come with a united position that has been coordinated in advance. One of them should be a District Court judge and not a Supreme Court justice. From my experience as a member of the committee, I know that it is not sufficiently transparent. Accordingly, minutes of its meetings should be taken, even if they are then stored in a vault for years.
"The insularity of the system and its insensitivity to the public's mood heighten the suspiciousness toward it and create the impression that it works like an old-boys' network. That impression is unjustified. It does not work like that. But the suspicions can only be abated if there is greater transparency."
Is the Supreme Court that Aharon Barak left behind a bland court?
"The appointments to the Supreme Court could have been better. Not all the appointees are from the front rank. Some were good, others middling. The result is that the court is neither one thing nor the other: It does not reflect public moods and also does not reflect judicial genius."
Do you think there is too much paperwork with respect to court judgments?
"There is a problem of excessive writing. Students who have read judgments from the previous generation often come to me in amazement. Justice [Yoel] Zussman said everything in a judgment of two or three pages. There is no need to add anything. In contrast, today there are judgments of hundreds of pages. Even after you read them carefully and find yourself utterly exhausted, the point of law is not always clear. This is an expression both of a lack of judicial genius and of a lack of sufficient concern for the stability of the law."
You are actually quite critical of the court that President Barak left behind.
"Barak is one of the finest jurists in the world, but in a great many things he was dragged into extreme activism. A court hearing about sonic booms [generated by the Israel Air Force] over Gaza is unreasonable, in my opinion. If sonic booms over Gaza are to be considered, why not also deal with sonic booms over Damascus? The court should not intervene in matters of security. Barak imparted to the court analytical tools to do everything, but he left behind a court that finds it very difficult to fulfill its mission. Barak's appointments were not compatible with the court he shaped. So I think that now we have to strive for calm and restraint. The Supreme Court should intervene less and not clash with the Knesset other than in cases of flagrant illegality."
Would you recommend that the Supreme Court under its president, Justice Dorit Beinisch, restrain itself?
"Yes, definitely. Aharon Barak had tremendous personal weight - Israeli and international - that helped him push things through. His successors don't have that asset. It's not easy to step into his shoes. The court's prestige has also declined. So it's best to tread carefully. My concern is that if the Supreme Court takes the path of judicial activism, it will not be up to the task. I would suggest to President Beinisch that she follow a modest road and not confront the Knesset directly."
'Things have gone awry'
Is the much talked-about appointment of Beinisch's great adversary, Boaz Okon, as director general of the Justice Ministry reasonable? Don't you see it as a provocation?
"Boaz is a friend of mine and of my wife. He is one of the most talented and knowledgeable people I know. The allegation that he is some kind of demonic Rasputin is simply not correct. He was an extraordinary judge: He decided fast and he decided right. He did great things in regard to the computerization of the system. He has an immense administrative and organizational appetite. Accordingly, I think that he is very suited for the post of director general of the Justice Ministry. He is also worthy to be a Supreme Court justice. That is also the opinion of Aharon Barak. He is not merely worthy, he is one of the best, and when the time comes he can be the president of the Supreme Court."
Nevertheless, Friedmann, Okon and the former justice minister, Haim Ramon, are considered threats to the rule of law by those who purport to guard the system.
"The rule of law is a complex concept. It does not mean, as some primitive people here think, that everyone has to stand trial, and fast. The rule of law refers to the separation of powers, human rights, equality and protection of minorities, but also a Knesset that represents the people and the duty of the government to govern. These things have gone awry here in recent years. There was a process here of the demeaning of politics and a dictatorship of the judicial system emerged. The court, officialdom and the media created an exaggerated judicial bureaucracy in Israel, which consists not of checks and balances, but only of checks. And when there are only checks, nothing moves. No decisions are made and there is no governance. This situation is ruinous for democracy. In my opinion, the judicial world and the media world have created a situation that is abnormal."
What is your criticism of the judicial world?
"First of all, it is not efficient. Justice that is delayed is justice that is denied. But beyond that, it is dominated by a prosecutorial spirit. When I hear that all the judges in the Ramon trial were prosecutors in the past, I say that something has gone awry here. We have forgotten what the basis of the rule of law is. The rule of law is also the rights of the accused."
Does the Ramon case disturb you?
"It disturbs me very much. What he did was unconscionable. But the police would not have behaved as they did with Ramon if a man named Buzaglo had been involved. They would not have sent investigators to Costa Rica [to question the woman who accused Ramon of sexual misconduct]. Miri Golan [former chief investigator of the police] would not have sat with the complainant, who originally did not want to file a complaint, for hours. I was also not persuaded by the judgment; it is written in a very one-sided manner and did not persuade me."
Would the prosecution have behaved different with Yosef Lapid or some other minister who is friendly to the system?
"I am not saying that. But I do hear that from everyone. I myself was cautioned not to take the justice portfolio without a lawyer constantly at my side. A most serious person told me that justice minister is the most dangerous cabinet portfolio. I don't think there was a conspiracy in the Ramon case, but the behavior we saw is evidence that there is no overall, balanced concept of the rule of law. There is no understanding that placing a person on trial is already half a conviction. Consequently, my conclusion is that we need judicial control over the process of putting people on trial. Such control exists in the United States, France and Britain. It's only here that the decision is made by bureaucrats - and experience shows that bureaucrats do very peculiar things."
"Bibi [Benjamin] Netanyahu went through two extremely serious criminal investigations without it being clear what offense was attributed to him. [MK and former Knesset Speaker Reuven] Rubi Rivlin was under investigation for four years and was told that if he even just talked about it, he would be charged with obstruction of justice. [Former justice minister] Yaakov Neeman and [former chief of staff] Rafael Eitan were placed on trial even though in both cases the basis for doing so was not clear. All this is disturbing, extraordinarily disturbing. Something is not right here."
'The camp moved'
Could it be that you are the one who has changed? It's not only your attitude toward the Supreme Court that surprised people - in the past few years you have expressed centrist and even nationalist opinions. You used to be an enlightened liberal, but now you often support the "forces of darkness."
"I do not support the forces of darkness. I support the State of Israel as a Jewish and democratic state. I am a Zionist. I am a national and liberal Jew. Basically, I have not changed my stance. In contrast, part of the left wing has changed its stance. So don't ask me what happened to me; ask the people on the left what happened to them. My feeling is that when I went to sleep I was part of the camp, but when I woke up in the morning I discovered that I was outside the camp. I remained in the same place, but the camp moved."
When did you sense this? When did you realize that you and the left are in two different places?
"When I read the Geneva [Initiative] understandings. I left Meretz because of those understandings. There were a great many things in them that I found unacceptable. I could not accept the compromise on the right of return. But there is one statement there that is totally inconceivable: the obligation to compensate the Arab states for having hosted the Palestinian refugees for 60 years. This, without so much as a word about what they did to the Jews, and even though it is clear that they held the refugees as hostages and educated them to hate Israel and to advocate its destruction. When I saw that clause I didn't know whether to laugh or cry. At first I thought that maybe I had gone mad, wasn't seeing right, couldn't understand what I was reading, but then I understood that my good friends in Meretz had gone off the rails. And they went off the rails because of their need to placate the Palestinians; in every case and in every situation, always to placate the Palestinians."
What is the basic cause of your argument with the left in the past few years? On what are you divided?
"I will tell you on what we are not divided. We are not divided on the need to establish two states for two peoples. We are not divided on the disaster of the settlements and the need to evacuate them. We are not divided on the need to try to end the Israeli-Palestinian conflict at the earliest possible time. But the point of departure of the Zionist left is a strong Israel. My friends constantly tell me: What are you worried about? Israel is the strongest power in the Middle East. Whereas my underlying assumption is the reverse of that. I see Israel as a weak state in the Middle East. I think Israel is weak, vulnerable, hanging by a thread. Yes, absolutely hanging by a thread.
"Yes, Israel is a very small country on the Middle East map. It is surrounded by forces that do not accept its existence, it is torn from within, and public opinion in the West Bank is becoming increasingly stronger - not against the occupation, but against Israel's very existence. Therefore I say that Israel possesses military might, but is weak in every other sense. Weak demographically, weak politically, weak geopolitically. And in the military sphere as well, the deterrence provided by the Israel Defense Forces, which was our advantage for a long time, is weakening. It has not disappeared, but it has been severely curtailed.
"There are two causes for this: the nuclear process and Iran's entry into the arena as a conventional power. These are two different threats. In the realm of nuclear war there is no symmetry. We are extraordinarily vulnerable. Israel can be wiped out with one nuclear strike. And Iran demonstrated during its war with Iraq that it is not frightened of others' responses. And when the issue concerns the religious precept of restoring the lost imam, what are a million casualties? But even without nuclear weapons Israel is vulnerable vis-a-vis Iran.
"Iran is a very strong regional power. We saw this in the Lebanon war. We are talking about completely different quality here, a different quality of manpower combined with extreme Muslim fanaticism and combined with major organizational capability. Consequently, my assessment today is that we are facing a threat of the same order we faced in 1948, without having the leadership we had in 1948. For the first time since 1948 we also face a concrete existential military threat."
How disturbed are you by this threat?
"I am disturbed at the level of sleeplessness. I don't sleep at night."
Do you envisage a nuclear event?
"Yes, absolutely. The new novel I am working on starts in a future in which Tel Aviv lies under the sea. The sea rises and covers Tel Aviv. True, it's not nuclear, but it is a reflection of existential anxiety - a very deep existential anxiety."
When you walk in the streets of Tel Aviv, do you have the feeling that the city might not exist?
"Yes, definitely. I feel existential anxiety for everything we have built here. I am a fearful Israeli, a very fearful Israeli. And I am afraid not because of primeval fears. I am fearful because I think that Israel is strong in a very limited way and is very weak in other ways. I saw our weakness in the Yom Kippur War. I saw the planes of our great air force being downed over the Suez Canal in some sort of Israeli mini-defeat. And now I saw the Israeli weakness when a million Israeli refugees fled from their homes in the North and we were unable to stop the firing of Katyusha rockets for 33 days. So since the war in Lebanon my sleeplessness has become worse. I am fearful for the home. I am afraid that the home will fall. I am fearful for the future of the 'third home' [of the Jewish people]."
You see destruction as a possibility?
"Yes, destruction is a possibility. I believe in the Israeli society - but in the face of threats of this magnitude? And with the world standing aside? It returns me in my thoughts to 1938-39. There is a certain connection here, at least associatively. The West sees danger and does nothing. And Jews are not taken into consideration. And there is anti-Semitism. After years in which I thought anti-Semitism had vanished, it has returned. And you see that it is such a profound force. So demonic. Like the phoenix arising from its ashes."
'Clash of cultures'
You are describing a worldview that is generally identified with the right wing. Do you also see the conflict in terms of a clash of civilizations?
"I see a clash of cultures. In one dimension there is a national confrontation here. There is an Israeli-Palestinian conflict that we have to try to end. But one must also see the broad picture, which the extreme left does not see. There is a clash between a narrative of enlightenment versus a dark narrative. I do not believe in relativity. I see the universal values of the French Revolution as absolute truth. And what I see here is an assault on those values. Islam is not an open society. In the terms of Karl Popper, it is the most closed society conceivable. It is an intolerant society.
"A well-known professor said not long ago that we have to adopt the values of the Middle East in which we live. I would like to ask him which values he is talking about. About the humiliation of women? About corporal punishment? About the hanging of a homosexual a month ago in a city square in Iran? About the flogging to death of a young homosexual in Saudi Arabia? About the Nazi propaganda in Egypt? I really want to know. What values are we talking about? After all, there is not one Arab state that upholds the values of freedom of expression, human rights and minority rights. And across the Middle East the Arab Christian minorities are disappearing at an appalling rate. I am not talking about Jews or about Copts or Baha'is. I am talking about Arab Christians. No one talks about that. There is a conspiracy of silence on that subject. Neither the European left nor the Israel left is addressing these phenomena.
"And when I address them, I am asked what happened to me. What happened to me? Not a thing. I am simply being faithful to my values. I say that one can come out against fascism even if it comes from the Muslim side. That statement itself is considered a betrayal of the liberal principle, but I believe it is the exact opposite. In my view, those who oppose self-determination for the Jewish people are the enemy. And those who oppose human rights are the enemy. They are the enemy because they force women to marry at the age of 14. They are the enemy because they perpetrate coerced circumcision on women. They are the enemy because they persecute homosexuals.
"I am not willing to accept a multicultural approach that says that their culture is like my culture. I do not understand how one can talk about cultural relativism in a generation that saw Nazism and Stalinism. I find it perverse that Jews should advocate such relativism. Is it really possible to say that all the narratives are equal? That the Nazi narrative is equal to the Anglo-Saxon narrative? That the Stalinist narrative is equal to the narrative of the French Revolution?"
Do you consider radical Islam a totalitarian movement? Do you really liken it to national socialism?
"No. I see political Islam as a movement that poses a danger to civil rights, but I do not liken it to Nazism. Nazism was a liquidationist movement. It wanted to annihilate the 'other.' Islam does not want to annihilate its enemies, only to rule the world."
Your remarks will not go down well in Israeli universities.
"What happened in our universities is that a small minority seized control of some of the humanities and social sciences departments, and of public discourse. Go to symposia in those departments. Who is represented there? In those discussions the right wing is Meretz. The discourse is from Meretz leftward. But is support for the Palestinians really left wing? Does being left wing mean to support Palestinian nationalism? In my view, that anti-Zionist group is not the left. It is a group that supports the Palestinian narrative and does not always allow the large Zionist minority in the universities to have its say.
"The president of a very important university told me that there are circles in which people who espouse a Zionist worldview will not be accepted. And when Yuli Tamir [the present education minister] signed the Kinneret Covenant [which sought to find common ground among different segments of Israeli society] a fatwa was issued against her and there were calls to boycott her. It's an unbelievable phenomenon. It damages academic freedom and it is also against the law.
"So I say that something bad is happening in academia here. Something very bad. When some professors sign a petition calling for a boycott of Israeli universities, we have reached the stage of farce. What we have here is an imitation of Europe and America without the balances of Europe and America. There you have a radical pole, but there is also a mainstream and there are conservatives. We don't have that. Even though there is a Zionist majority, the trauma of the settlements and the occupation silenced the Zionist discourse in academia. Even those who are Zionists are unwilling to defend Zionism."
Do you never get heretical thoughts - don't you ever wonder whether Zionism was a mistake?
"I do have heretical thoughts. I ask myself whether the tremendous opposition of the Arab and Muslim world is not sabotaging the prospect of realizing the Zionist idea. But immediately I have counter-thoughts. I prefer the dangers that face us in Israel to the humiliation of being a Jewish minority even in the enlightened West. Therefore I feel strong in my Zionist belief. But I see the international move toward delegitimizing the Jewish state. I see that Zionism is under heavy attack. And I am worried. I am very worried."
Coping with demons
You possess an apocalyptic dimension. It is blatant in your literature and it is being expressed in this conversation as well.
"Of course. My existential anxiety runs very deep. I don't think that there is an Israeli without such anxiety. Even though I was born here, I also live the Holocaust intensively. I think that the world since Auschwitz is not the same world. And I see anti-Semitism returning today. I see the objective threats we face, but in all my books, the end is good. I think we are facing hard times, but I want to believe that we shall overcome. I want to believe that despite my nightmares, my grandchildren will live here after all, in Tel Aviv."
Has your literary writing changed you? Are you talking the way you are because you no longer feel like Rubinstein the public figure, but like Rubinstein the writer?
"Two years ago, when I published my first novel, 'Blanket,' I was afraid that I would be mocked. I was afraid that people would mock an aging politician, who started to write a bold novel containing erotic motifs. The erotic aspect was very sensitive for me. Particularly the story of the homosexual love between Ben-Gurion's aide and an Arab young man. I was afraid that I would be laughed at and subjected to brutal criticism. But I also didn't want to back down. I didn't want to leave behind only law, academia and politics. The public persona was no longer enough for me. To write is also to go down to the basement. To cope with demons. After all, no person is only what he seems to be. Vulnerability is also a part of it. Vulnerability is the theme of that novel. Both at the personal level and at the Israeli level. As well as the apocalyptic and the Jewish feeling.
"So I did a striptease. I stripped naked in public. And I am still stunned by the fact that I stripped. But I am equally stunned by the fact that people don't care. That even though I exposed myself, I am still popular. And I live in harmony with myself. I feel that writing has enriched my life."