Israeli Supreme Court Justice Ends Illustrious Career With Two Human Rights Rulings

Former attorney general Elyakim Rubinstein wraps up 13 years on the bench with rulings that side with prisoners

Israel Supreme Court Justice Elyakim Rubinstein, in 2016.

Justice Elyakim Rubinstein retired from the bench Tuesday after serving 13 years on Israel’s Supreme Court, marking his departure with rulings in two human rights cases.

One involved overcrowding in prisons; the other concerned the ban on migrants and asylum-seekers bringing personal items into the Holot detention center in the Negev. Rubinstein, who previously served as attorney general and cabinet secretary, sided with the prisoners and detainees in his final rulings, delivered at a farewell ceremony.

Later in the day, two new justices – David Mintz and George Karra, who are replacing Rubinstein and Zvi Zylbertal – were due to be sworn in. Zylbertal retired in April.

In other remarks at the farewell ceremony, Rubinstein took exception to a proposal by Justice Minister Ayelet Shaked, who was present in the courtroom, limiting who would be entitled to petition the High Court of Justice. "In my opinion, the ability to apply directly to this court with petitions against the government is a beautiful and useful Israeli institution that is worth preserving even if there are sometimes baseless petitions," Rubinstein said.

The rulings Rubinstein handed down on his last day relate to petitions filed by the Association for Civil Rights in Israel. The College of Law and Business in Ramat Gan was a co-petitioner in the first case, demanding that prisoners be provided a minimum space of 4 square meters (43 square feet) in their cells, not including the toilet and shower. Due to overcrowding, most inmates in Israeli jails live in a total area of less than 3 square meters.

Joined by Justices Hanan Melcer and Uri Shoham, Rubinstein ruled that the current space allotted to prisoners is a violation of the law requiring that inmates be held in fitting conditions and a violation of the state's obligation to ensure the dignified existence of prisoners. The ruling will be implemented gradually over the next year and a half.

In the second case, in which ACRI was joined in its petition by the Hotline for Refugees and Migrants and by detainees at Holot themselves, the court struck down an Israel Prison Service ban against detainees bringing in from the outside such personal items as toiletries and electric appliances.

Joined by Justices Uzi Vogelman and Daphne Barak-Erez, Rubinstein ruled that a sweeping ban against bringing in such personal effects was unreasonable. In another case that was consolidated with the petition, the court ruled that a maximum of six asylum-seekers per room could be accommodated at Holot instead of the current maximum of ten.

Rubinstein, 70, joined the Supreme Court in 2004 after a tumultuous term as attorney general (1997-2004), during which he closed a 1999 investigation of Benjamin Netanyahu and his wife, Sara. They had been suspected of billing the government for work done at their private residence by contractor Avner Amedi and other service providers, before and during the prime ministerial tenure of Benjamin Netanyahu. The suspicions included giving and accepting bribes, fraud and obstruction of justice.

As attorney general, Rubinstein also brought about the dismissal of the head of the Israel Police investigations division, Moshe Mizrahi, due to wiretapping activities, and recommended that prosecutor Liora Glatt Berkowitz be indicted for leaking suspicions that Prime Minister Ariel Sharon had received millions of dollars of bribes from Cyril Kern, a South African businessman.

Rubinstein began his career with a clerkship at the State Prosecutor’s Office, followed by positions in a number of government ministries, including a stint as the legal adviser to then-Foreign Minister Moshe Dayan and later as cabinet secretary for eight years under Prime Ministers Yitzhak Shamir and Yitzhak Rabin.

As Supreme Court justice, Rubinstein dissented when eight others on the bench ruled in 2015 that Knesset member Haneen Zoabi could not be disqualified from serving for the parliament. He also objected to a government plan to regulate the country’s offshore natural gas reserves, and to Netanyahu’s decision to serve as health minister in addition to prime minister.