4 No. 70 JUSTICE am pleased to be able to return to activity in the International Association of Jewish Lawyers and Jurists (now the “IJL”), an organization in which I had the privilege of working many years ago. I wish the organization and its President, Adv. Meir Linzen, success in the important tasks called for in this era. We are in a difficult and distressing time for both Israel and Jews in other countries. The challenges of the times are known to all, and the many lives lost since October 7, among both civilians and soldiers, are an inexhaustible source of sadness. This immeasurable grief is not solely borne by the many bereaved families which, of course, bear the principal burden of grief, but for each of us, Israeli, Jew, and indeed every decent person. Israel is caught in a war that I have no doubt any country would resort to after the massacre of some 1,200 citizens, along with kidnapping, rape and looting. The agony of our kidnapped persons is so deeply on our minds. I will briefly discuss three points: the war on Hamas, the struggle against antisemitism, and the fight for peace and relations with the Arabs of Israel. The War with Hamas: Legal Challenges As scrupulous jurists, we often say that there are two sides to every coin. But there is no ambivalence about this war. It is a war justified like no other, both in terms of self-defense and in every other legal aspect. To the best of my knowledge, despite the difficult conditions, the IDF is making an effort, with the aid of the Military Judge Advocate General’s office, to operate in accordance with the laws of war. Dealing with this issue in the international arena is complex, and extends over a variety of matters, and falls within the expertise of Col. (Res.) Pnina Sharvit Baruch, Vice President of the IJL. Here, I will focus only on the secondary challenge created by the war, whose main goals are familiar: defeat of Hamas, release of those kidnapped, and bringing general security to Israelis in the border areas. This challenge concerns the handling of the many terrorists who were captured by the IDF and security forces over the course of the war. They are presently detained as illegal combatants, in accordance with a law regulating this category, as they are not entitled to be considered prisoners of war. What is the offense for which they could be prosecuted, is it the crime of genocide? In which legal forum would this matter be addressed ‒ the civilian courts or a military court re-established under the Defense (Emergency) Regulations (1945)? What evidence has been collected that may be used in the trials, if a decision is made to go to trial? These and other questions are on the desk of the Attorney General of Israel and the Judge Advocate General (which are both, for the first time, posts held by women). It is safe to assume that the IJL will also have to consider these matters in due course. By the way, during my time as Attorney General, I insisted – in the face of opposing views – on bringing the terrorist leader, Marwan Barghouti, to trial in the civil District Court, rather than a military court, after his arrest in 2002. I have great respect for the military courts (I myself served as a judge in the military reserve), but I thought that terrorist leaders should be tried in civil courts, for public visibility reasons. Barghouti was sentenced to five life sentences and another 40 years for his role in multiple murders and acts of terrorism. At this point in time, I will not address the difficult dilemma once again before us regarding the exchange of prisoners convicted for acts of terrorism for our kidnapped civilians and soldiers – to whom we have a duty to bring home. On Antisemitism Antisemitism may be traced back in history to the biblical days of Pharaoh and Haman. There is no rational explanation for its existence, given the tiny size of the Jewish people, and it seems that it cannot be completely eradicated. Back in the 1930s, Rabbi In the Shadow and Aftermath of October 7* I Justice Elyakim Rubinstein * This is a slightly edited version of an address at the IJL Board of Governors meeting, December 12, 2023. Some of the comments were published in Hebrew: “We Are No One’s Punching Bag,” YEDIOTH AHARONOT (Sept. 13, 2023).
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