Coming Full Circle

For the first time since leaving his post, former Supreme Court president Aharon Barak freely discusses a host of subjects - including house demolitions, administrative detention, civil marriage, former justice minister Daniel Friedmann and even death. He is happy to be back in academia and declares he 'lives in the best of all possible worlds.'

Ze'ev Segal
Ariel Bendor
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Ze'ev Segal
Ariel Bendor

In early 2006, a few months before Aharon Barak's mandatory retirement as president of the Supreme Court, where he served for 28 years, we talked about the idea of conducting a series of conversations which would eventually be published in book form.

We visited him in his Jerusalem home one day at dusk and put the idea to him. Barak's reply was short and unequivocal: He did not want his remarks to be published so soon after his retirement. In contrast to other Supreme Court justices, he decided not to give an interview before he stepped down. He wanted a cooling-off period and some distance from the daily tumult in order to have time to reflect on what he had done during his life. And most important, he added, taking such a break would obviate the impression that he was still speaking with the authority of the president of the Supreme Court.

Thus, two years later, we returned to Barak - this time to his office at the Interdisciplinary Center in Herzliya. The office is crammed with books: on the shelves, on the tables, on the armchairs and on the floor. We raised subjects about which the former justice has never spoken publicly. He described the process by which he arrived at his groundbreaking decisions as a young and then-unknown attorney general, and spoke about the path that led him to hand down groundbreaking judgments of principle, which made him Israel's greatest jurist, but also its most controversial one.

We spoke with Barak when he was no longer, as he put it, "the kapelyush-makher" (hat maker) of Israeli law, but the public was still eager to hear his opinions. It came as no surprise to discover that he was ranked fourth in a study about the number of times legal figures were cited in the local press last year. Only the attorney general, the justice minister and the current president of the Supreme Court were ahead of him.

Barak told us that he is happy to be back in the tranquil life of academia and that he is not upset by the prospect that his doctrine may be forgotten. Despite this, he was plainly agitated when expressing his opposition to the reforms that are being proposed in the judicial system, which in his opinion are liable to have an adverse effect on the status of the Supreme Court in general and on his personal legacy in particular.

During the time that elapsed between the encounters with Barak and the publication this week of our book, entitled "Oseh Hakovaim, Din V'dvarim Im Aharon Barak" ("The Hat Maker: Discussions with Justice Aharon Barak"; Kinneret Zmora-Bitan Dvir; in Hebrew), the storm fomented by former justice minister Daniel Friedmann has abated somewhat. Friedman tried (and partially succeeded) to push through a series of reforms that would recast the image of the judicial system. It is still too soon to assess whether his successor, Prof. Yaakov Neeman, will pursue the same path. However, with or without Friedmann, Barak, who navigated the turbulent judicial system for many years, is today a worried citizen.

"The ship is not sinking - that's just talk," he says. "Daniel Friedmann as justice minister failed with the great majority of his proposals. But I do not think he is a passing episode: The seeds he sowed will turn into a poor harvest. He himself will continue to write. And there will be politicians who will continue on his path and rely on his opinions. Israeli society is fragmented and there will always be criticism of the court, which will draw on Friedmann's actions. He made it legitimate to savage the Supreme Court from within the country's centers of power. I am afraid that will continue."

From the point of view of Friedmann and his supporters, the need to curtail the activity of the Supreme Court stems from the expansive approach regarding the powers of the High Court of Justice that was adopted by Barak and his successor, Dorit Beinisch. This is basically a matter of clashing worldviews, which became personal because of what Barak calls Friedmann's "Tel Avivian" temperament.

Barak's workday is long. He has plans to write legal books and, in fact, has just completed one on the concept of proportionality in law. He feels that he has much to accomplish and is disturbed by the passage of time. Death is a substantial presence in his world. After our final conversation, he accompanied us to the door, glanced at his modest office, and said: "The only way they take me out of here is on a stretcher."

Second thoughts

Aharon Barak is now ready to talk on the record for the first time about the judicial worldview that shaped the approach of the High Court of Justice on controversial issues, including Israel's activity in the territories. "The situation of ruling another nation obliges the Supreme Court to protect the rights of the members of that nation," he explains.

Some people expected that principle to lead to more sweeping involvement of the High Court in preventing wrongdoing and in protecting human rights in the territories. One such individual was Jimmy Carter. The former U.S. president knew Barak from the period of the negotiations on the Camp David agreement between Egypt and Israel, when Barak was attorney general in the government of Menachem Begin. Years later, when Barak was a Supreme Court justice, Carter asked to meet with him in Jerusalem after returning from an unsettling visit to Bethlehem.

"He met there with the mayor, who complained that the military governor had refused to issue a permit for publication of a newspaper and for holding demonstrations," Barak relates. "The mayor also complained about Israel's refusal to allow a university to operate in the city. Carter told me, 'At Camp David, you explained all the time how well you Israelis behave in the territories - but that is not the case. In Israel you have universities, newspapers and demonstrations, but in the territories you prohibit them.'

"I replied: 'Mr. President, do you really want us to do the same in the territories as we do in Israel?' He said, 'Yes.' I said, 'If so, there is no difficulty. We can solve all the problems.' He was excited and asked what had to be done. I said: 'Annexation of Bethlehem. As soon as we annex Bethlehem, we will apply Israeli law there and open a university, subject to the authorization of our Council for Higher Education. The inhabitants will be able to put out a paper, subject to the press ordinance, and will be able to demonstrate, subject to the orders of the police.' 'No,' he said. 'This is occupied territory and you cannot annex it.' I said, 'Well, Mr. President, you yourself have provided the answer. It is occupied territory and in occupied territory it is impossible to apply laws that exist in a democracy.'"

In other words, in a territory that is under "belligerent occupation," the principles of democracy do not apply?

Barak: "Correct. It is not democratic, in the same way that Palestine was once part of the Mandate, but not part of England per se. The British did things here that they did not do in England. Democracy does not exist in an occupied territory. Did the Americans apply U.S. law in Iraq or Afghanistan?"

In retrospect, Barak is now ready to admit that he handed down rulings contrary to his personal opinion, in hearings about the demolition of houses in the territories. "I thought for many years, and still think, that house demolition is unworthy and not good. This is not the way to behave. It brings no benefit. But as a judge, I felt I had no discretion on this subject. Maybe I was wrong, but I felt I did not have the discretion to say that the executive branch can never demolish a house.

"My thinking on the subject has developed since then. I now think that a house demolition is viable solely in situations in which the house was used to commit an offense, in which case it is like a weapon that was used. The house is the weapon. You sleep there and it is your place of departure for perpetrating the terrorist act. In that situation, an attack on the house is like confiscation of a car that you drove to commit an offense. I see no problem with that - provided, of course, that it is your house and not someone else's. That it is the house you set out from, not a house you haven't visited for the past 10 years. Those are the only situations in which I do not see a problem with demolitions. But use has been made of demolitions not only in clear-cut situations like those. No one understands why the house of a terrorist's father is demolished. If the house belongs to the terrorist's father, it must not be demolished.

"That is not how we approached this issue in the court's rulings down through the years. I felt that I was obligated to the approach we took. Maybe I was mistaken. Maybe this is a situation in which discretion can be applied. I did a cold, clear legal analysis of the issue against the background of the history of the subject and its place in the Defense (Emergency) Regulations. I told myself, even though I am very much against house demolitions, that the article of the law allows demolition and all I can do is apply the principle of proportionality. I could have said, in my analysis as a justice, that while it is true that the military authority can exercise the discretion to demolish a house, that power can be used only in the most extreme cases. For example, if someone threw a stone that struck glass but no one was hurt, his house must not be demolished."

Barak has also changed his mind about the use of administrative detention without trial as a bargaining chip in negotiations for the release of prisoners, if no security danger is attributable to them. Initially, he says he thought, in an appeal before the Supreme Court, that this was possible, but he subsequently changed his opinion.

"After the first judgment was handed down, even before an additional hearing was requested, I thought a great deal about the subject," Barak relates. "It was a special case. In most cases, after delivering the judgment, you move on to a new case, but there are situations when a verdict that you handed down bothers you. The more I thought about it, the more I reached the conclusion that I was simply mistaken. The consideration of using someone as a bargaining chip when he himself does not pose a danger to security, is not one that can be entertained within the framework of exercising one's judgment."

Rabin's dollar account

"Who is Aharon Barak?" was a popular question in 1975, when the government appointed as attorney general the youngest dean in the history of the faculty of law of the Hebrew University of Jerusalem. Barak was then known mainly as being the recipient of the Israel Prize at the very young age of 38. When Haim Zadok, the justice minister at the time, asked the cabinet to appoint Barak to the post, he knew Barak was considered a prodigy in legal circles.

Zadok could not have imagined that Prof. Barak would easily enter the big shoes of his predecessor, Meir Shamgar, who before being appointed attorney general himself, served for eight years in a series of legal posts in the government, including a stint as military advocate general. But Barak enforced the law with an iron hand in the government authorities. He also coined the phrase "Buzaglo test," aimed at demonstrating that the same sort of justice must be dispensed to the country's leaders as to an ordinary citizen (the "Buzaglo" in question). Barak's decision to try Leah Rabin, the wife of prime minister Yitzhak Rabin (during his first term of office in 1974-77), for holding an illegal foreign currency account abroad (a dollar account in Washington, from the period in which Rabin was ambassador) prompted Rabin to resign as head of the Labor Party list in the Knesset elections and to take a leave of absence until after the elections. In our conversation, Barak revealed that he would not have hesitated to try Rabin himself as well, if he had not stepped down.

The decision made the then-attorney general the country's "strongman" - usually an appellation accorded the prime minister. Barak speaks here for the first time about this episode, which cast a long shadow over his relations with Rabin.

"I read the report in Haaretz by Dan Margalit, in which he revealed the existence of the account, and I asked the police to look into it," Barak recalls. "They told me the account did in fact exist. The question was whether the regulations made it possible to convert an indictment into a cash indemnity. If that route had been possible, I would not have prevented the finance minister at the time, Yehoshua Rabinovitz, from taking it. At the time there were rules, formulated back in the Shamgar period, which made it impossible to ask for an indemnity because of the size of the account. The initial reports said that there were only $2,000 in the account, and I was pleased. But then it turned out to be $20,000. I went to the justice minister, Zadok, and told him we had a problem."

Barak relates that Rabinovitz wanted Rabin to pay an indemnity and so prevent the collapse of the ruling party, to which Barak replied that he would go to court against the finance minister.

"In that period, the High Court of Justice barely recognized the status of 'public applicant,' referring to a person who is not particularly hurt, and also not in any direct way, by a governmental decision [but who nevertheless petitions the High Court, as the guardian of the law]. I told [Rabinovitz] he was right, 'but that the attorney general himself has standing, and I am informing you that if you decide on this, I will go to court against you.'"

And would you have done that?

"Absolutely. I explained to him that he would have to defend the decision himself. I also told him he could not accept legal advice that was contrary to my opinion. I explained to him that he could hire a private lawyer out of his own pocket. Rabinovitz was a pleasant and very modest person. He thought it over and said, 'I have forgotten about the matter.'"

What happened next?

"I went to the prime minister, Yitzhak Rabin, and told him: 'Listen, this is how it is.'

He said that if I intended to indict him, he would have to resign. That was the end of the conversation. Contrary to press reports, I did not make any agreement with him, to the effect that if he resigned, he would not be tried, or anything like that."

Do you think Rabin would have been obliged to resign if he had been indicted because of the account?

"I think he should have resigned. That follows from the equality of all before the law. A prime minister who knowingly holds $20,000 in a foreign bank account, which he made use of illegally, is an offender. He has to be brought to trial. He cannot be prime minister. This is not a petty offense."

In practice, the prime minister resigned in the wake of the decision to try his wife, Leah. Did his resignation persuade you not to indict him?

"Yes. She was indicted because she was the chief offender in the case. She was the most deeply implicated. I had to try her according to the regulations formulated on this subject beforehand. The Finance Ministry officials explained them to me. The Rabin case was not one of the exceptions."

If so, why did Yitzhak Rabin's resignation justify his not being brought to trial?

"I considered his resignation an act of taking responsibility, with all the conclusions that follow from this."

Did you have a personal conversation with Rabin about the whole matter?

"There was a conversation in his home in Ramat Aviv. A very tough one. It was the first time I had been to his home. I was not among the regular guests; I did not know him and I was in no way close to him. I had met him only on rare occasions. I told him there was nothing that could be done. There was a basketball game on between Maccabi Tel Aviv and the Italian team Mobilgirgi Varese. Rabin was angry at me. I could understand him. It was a short conversation. Rabin announced his resignation immediately after the game ended."

Did Rabin forgive you in later years?

"He did not forgive me, but he treated me correctly. I have no complaints against him. The person who really did not forgive [me] was his wife, Leah. She was upset by the decision not to try the former foreign minister, Abba Eban, on a similar matter. Eban had a larger bank account abroad than Rabin. Eban claimed he had a permit. We went through the treasury files, but did not find such a permit. We went through the files in the Foreign Ministry and found a letter from Eban requesting a permit. Eban's secretary, who typed the letter, recalled that a permit had been granted. On the basis of that evidence, we decided not to try him."

But Leah Rabin felt she had been discriminated against?

"Yes. She had a powerful feeling of discrimination. When Rabin's casket lay at the Knesset, after his assassination in November 1995, I passed by it as the president of the Supreme Court. I extended my hand to her but she refused to shake it. A few years later, before she died, when she was on her deathbed, she phoned me. I don't remember her exact words, but to my ears, she sounded reconciled."

The right to marry

Barak sees a connection between his life story and his judicial viewpoints. In one of his most important judgments - regarding the petition against the ban on Yitzhak Laor's play "Ephraim Goes to the Army," which drew a comparison between Israeli soldiers and Nazi soldiers, he wrote: "I was a boy in the Holocaust and I crossed fences and borders guarded by the German army, while carrying on my person items that were not allowed to be transferred. The parallel between a German soldier who stops a child, and an Israeli soldier who stops an Arab youngster, strikes me deep down in my heart."

Nevertheless, Barak overturned the ban because, in his words, "We live in a democratic state in which striking people's hearts deeply is the very heart of democracy.

"The Holocaust, which I experienced as a boy, influenced my thinking," he says. "We entered the Kovno ghetto, my parents and I, in July 1941. I was then five years old. I was in the ghetto until 1944. Then my mother and I were smuggled out. I was smuggled out in a sack. We stayed with a farmer for about another half a year. My father remained in the ghetto and survived. I have to assume that the horrific reality of the Holocaust had consequences for the little boy back then and also for the adult; my personal rationalization was that these were related to recognition of the importance of Israel's establishment. Even if a Jewish state had been established on a very small area, it would have been possible to bring to it all of European Jewry that would have survived. I think that if we had had a state then, it could have influenced Allied policy in World War II. Israel's existence is of tremendous importance in terms of the existence of the Jews in the Diaspora. Hence also the great importance that accrues to the security of Israel and to Zionism. These are all elements that are central to my thinking."

Some people have claimed that you are a post-Zionist.

"That hurt me very much. I see myself as a Zionist in every fiber of my being."

In addition to your recognition of the importance of the existence of a strong Jewish state, do you find other influences the Holocaust has had on your judicial approach?

"The Holocaust also strengthened the importance of human rights for me. What did the Germans try to do? They tried to deprive us of our human image. We were like fleas to them. This also accounts for the lesson they themselves learned after the Holocaust. The first article in the German constitution from 1949, which is defined as a Basic Law, refers to human dignity. The importance of human dignity, the preservation of human dignity, the dignity of every person. Along with this, it is also necessary to find a balance and a compromise between the basic rights."

What kind of compromise?

"[One which concerns] the whole doctrine of a balance between rights. It came into being in order to find a proportional solution to a clash between the different values of the common good, which are the most important in the state's existence - its Zionist character, its Jewish character - and the existence of the individual, every individual, and of course the minority. We were a minority in the world. The search for a balance has been at the forefront of my approach down through the years, in the form of shunning extreme solutions."

Barak is perturbed by the denial of the right of certain individuals to marry and to start a family, as expressed in Israeli law. "The situation that exists today in Israel is that the state is violating flagrantly and very powerfully one of the basic rights that accrues to a person in a freedom-loving democracy, namely the right to marry. In the State of Israel a Jew cannot marry a non-Jew, a Christian cannot marry a non-Christian and a Muslim cannot marry a non-Muslim. In addition, a Jew cannot marry another Jew other than in a religious ceremony, which I am all in favor of, but as an option, not as an obligation. This is an unsatisfactory situation."

If it were not for the legal clause stating that the Basic Law on Human Dignity and Freedom cannot affect legislation passed before 1992, would you think that the existing arrangement is not constitutional?

"Yes, 100 percent so. The preservation of laws plays a very negative part here. But the problem has a solution. If we look at the problem from the Jewish point of view - even though it also affects members of other religions - it is claimed that marriage between Jews and non-Jews will cause a rift in the Jewish people. That argument might be valid outside Israel. But here, in Israel, I think it is insignificant. If civil marriage were recognized in Israel, it would not lead to an increase in civil marriage in the diaspora."

What are your "red lines" in regard to a constitution? Could there be circumstances in which you would prefer not to accept a full constitution and make do with the existing Basic Laws, despite their shortcomings?

"I am in favor of a good constitution. It would be preferable to the existing situation. But the present situation, of a crippled and fragmented constitution, is preferable to a bad constitution. A bad constitution will enshrine unworthy arrangements. For example, the existing situation is preferable to the passage of a constitution that would include establishment of a special constitutional court. It is of course very important to anchor all human rights at the constitutional level, but not at the price of establishing a constitutional court."

The problem with the proposals to create a constitutional court is that such a court will not be professional, but will be based on the politicization of constitutional judgment.

"I agree, but that is not the whole problem. Removing the powers of constitutional judgment from the Supreme Court will lead to its destruction. It will also have implications for rulings in matters of administrative law, large parts of which will also be transferred to the constitutional court, so that the Supreme Court will be voided of its major powers. Accordingly, the establishment of a special constitutional court is a 'red line' for me. If it is crossed, human rights will be emptied of all content. It is preferable that those rights will be given a narrower formulation in a constitution than to have a situation in which they will be interpreted by a constitutional court."

Would you also be ready to compromise over the right to equality?

"Yes, but on condition that the constitution would not say there is no right to equality, but that the right will remain at the level of an important right, and the court still cannot abolish a law which expressly infringes on that right."

'Death lives with me'

Aharon Barak, a veteran Jerusalemite, decided to forgo the office in the Supreme Court building which is his by right, shook off the bodyguards and the chauffeur, and moved to Tel Aviv with his wife Elisheva Barak, a retired National Labor Court judge. He now seems to grasp the mistakes he made as a judge.

Are there phrases you used in the judgments you wrote which you now regret? For example, "the enlightened public," referring to the values that should guide the court's rulings?

"If I had known how that would be interpreted, I never would have written it."

What about the comments about the boiling blood of the average Israeli male whose wife cheats on him before his eyes, and the recognition that in such a situation, a civilized person would be provoked?

"If I had known that these remarks, which seemed to me harmless, would cause such a ruckus, I would have forgone them."

If the retirement age for judges had been extended, would you have stayed on or left in any case?

"I said that I would resign at the age of 70. But in general, I think that nowadays 70 is still a young age. The retirement age could be raised to 75."

If 70 is still young, why was it enough for you to be a judge until that age?

"For me it was enough. I came from academia and I was very happy to return to it. The framework that was found for me here, at the Interdisciplinary Center, is delightful. I have a part-time position and teach only two hours a week. I am a member of the school of law, but I do not attend the faculty meetings. I am here all the time and am a member of the supreme academic committee of the institution. I teach the students mainly to think legally - that's what I do."

Is that something that can be taught?

"Yes, it seems possible. The question is how far things sink in. I treat my students with great respect. It is a pleasure to be with young people. I always loved teaching. I think I was also a good teacher. I have returned to my old love - teaching, in academia. The only they will take me out of here is on a stretcher."

What else would you like to accomplish?

"I have no time. It's not that I am sick or anything. But I want to exploit the time to sit and write. I get up early every day and come home in the evening, trying to squeeze out whatever is possible. I live in the best of all possible worlds, that's for sure."

That's not a very good way of putting it.

"It may not be a good way of putting it, but I am happy with my lot. I am happy that the responsibility that I was charged with as a justice and as president of the Supreme Court no longer exists. I do not miss that time. I can get along fine without the power I had. I never liked it for a minute. The etiquette of government was alien to me ..."

Does the idea of death bother you?

"Death lives with me all the time. It lives with me more than it lives with others. I live death intensively. I am not afraid of it. Because my life with death has gone on for so many years, and because we are closely acquainted, I am not afraid of dying at all. I do not believe in life after death. I think that with death everything ends. I accept that as a given."

Prof. Ze'ev Segal is Haaretz's legal commentator and an expert in constitutional and administrative law who teaches at Tel Aviv University. Former dean of faculty at the University of Haifa law school, Prof. Ariel Bendor, an expert in the same fields, teaches at Bar-Ilan University.



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