The legacy of Israel’s first Arab Supreme Court judge
In a country where Israeli Arabs rarely even try to reach the higher echelons of government, Salim Joubran, who retired from the bench on Thursday, was the country’s first Arab Supreme Court justice, a post he had held since 2003.
He also headed the Central Elections Committee during 2013 municipal and 2015 national elections. For the last two months, he served as deputy president of the Supreme Court. His daughter was the first Israeli Arab to complete the Foreign Ministry’s cadet course.
And yet Joubran managed to emphasize his Arab identity in some distinct and sometimes controversial ways – all without losing the confidence of the country’s Jewish establishment.
Joubran was the sole dissenting vote in an 8-1 court vote in which the majority upheld a 2015 law forcing Israeli-Arab parties to consolidate. He was the only justice who viewed the law as discriminating against Israeli-Arab parties.
He was in the minority on two huge 5-4 decisions – a September 2014 approval of a law that could indirectly discriminate against Israeli Arabs in hundreds of small towns or yishuvim, and an April 2015 decision approving the “Anti-boycott Law,” which created potential penalties for organizations that called for a boycott of Israel. Joubran deemed both laws unconstitutional.
He voted in December 2015 to indict Torat Hamelech’s ultra-right rabbinic authors for incitement against Arabs, while seeking to partially acquit the Islamic Movement in Israel Northern Branch leader Raed Salah of charges of incitement to violence against Jews.
The majority did not indict Torat Hamelech’s authors, but convicted Salah of multiple incitement charges. In his dissenting opinion, Joubran argued that Salah’s use of the word “jihad” was taken out of context, saying that the word has nonviolent meanings for struggling against injustice.
Most famously, when then-Supreme Court president Asher Grunis was sworn into office in February 2012, Joubran stood for the ceremonial song of “Hatikva,” but notably did not sing along.
A group of right-wing politicians speedily attacked him and tried to pass a “Joubran law” requiring all to participate in singing the national anthem and to bar anyone from public service who did not serve in the Israeli army – which would effectively deny such jobs to Arab citizens such as Joubran.
But then-deputy Supreme Court president Elyakim Rubinstein and Justice Minister Ayelet Shaked came to Joubran’s defense, saying that refusing to sing the anthem was tolerable, as long as he stood in respect and supported Israel’s dual Jewish-democratic character.
Joubran has written decisions where he complimented immigrants for moving to Israel to join the army and has been
paraded by Israel around the world as an embodiment of Israel treating Israeli Arabs equally.
He has struck a nuanced middle ground on complaints of state discrimination against Arab citizens.
Joubran has accused Israeli society of doing too little to integrate the Arabs in their midst and to provide them equal opportunities. Though the state’s Declaration of Independence proclaims equality for all, “unfortunately this has not been actualized on the ground,” Joubran said at a legal conference in November 2014.
But he has also criticized Israeli-Arab leadership, accusing Arab politicians of doing too little to address their communities’ problems. At the same conference, he said Israeli-Arab leaders “also need to take responsibility for resolving problems” and to “meet with ministers in order to reduce the gaps.”
In his 14 years of service, Joubran’s careful balance of identity issues led him to play an important role as a bridge between the country’s Jewish and Arab citizens.
He also stood out as a justice in his own right, for Joubran has been one of the court’s most unabashed and philosophically compelling lions of liberalism, regardless of the issue.
He voted to acquit former prime minister Ehud Olmert in the Rishon Tours Affair in a razor-thin 3-2 vote. Had he gone the other way, Olmert would have faced another conviction and more jail time.
Joubran voted in a split decision to permit Arye Deri to stay on as interior minister, citing, in part, the public confidence Deri had won at the ballot box.
These decisions seemed to stem from Joubran’s belief in the “beyond any reasonable doubt” protection accorded by the law.
Some law-and-order types saw this as naiveté, but those concerned about not sending an innocent person to jail regarded Joubran as a hero.
On key ideological policy decisions involving the government’s policies on natural gas and African migrants, Joubran always came out on the liberal end.
The court struck down policies toward migrants a number of times, as unconstitutional. It overruled parts of natural gas policy as unconstitutional as well. In these decisions, Joubran was always in the majority. Both rulings had him fighting for the underdog.
Still, Joubran toed the line in a range of cases that have earned him the ire of some on the Left, who accused him of being Israel’s fig leaf.
In July 2014, he rejected an appeal for civil damages for the wrongful death of 22 Palestinian civilians killed in IDF raids during Operation Cast Lead.
He upheld a broad reading of the laws of war to undermine attempts by human rights groups to challenge the IDF’s war-making strategy as grossly negligent enough to be criminal.
In some ways, Joubran’s service and his setting down clear lines of liberal jurisprudence have fundamentally changed Israeli society. The Judicial Selections Committee, from Left to Right, agreed that he would be replaced by another Israeli Arab, with Judge George Kara chosen as his successor. In other ways, Joubran was as establishment as they come, and has provided a useful talking point for legitimizing Israel’s legal system globally.
So while sometimes an enigma, Joubran was still, at all times, a trailblazer. •