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Barak, Aharon

BARAK, AHARON

BARAK, AHARON (1936– ), Israeli jurist. Barak was born as Arik Brik in Kaunas (Kovno), Lithuania, where he was raised as a child and survived the horrors of World War ii. During the war the Brik family lived in the ghetto. In 1943 his parents arranged for the six-year-old boy to escape the ghetto and stay with a family of Lithuanian farmers until the end of the war, when his family was reunited again. Shortly after the war, the Brik family planned to immigrate to Mandatory Palestine. After a long journey through Poland, Romania, Hungary, and Austria, it settled eventually in Rome, Italy, where Aharon attended formal school for the first time in his life. In 1947 the family finally immigrated to Israel and settled in Jerusalem, where Barak completed his elementary and high school education. While attending the Bet ha-Kerem high school, Barak met his future wife, Elisheva (later deputy president of Israel's National Labor Court). Upon the completion of his high school studies, Barak was selected to do his compulsory military service at the Academic Reserve (a military unit combining university studies with active military duty) and went on to study law, economics, and international relations at the Hebrew University of Jerusalem. During his military service, Barak completed a combat officers' course and received the rank of lieutenant. Between the years 1958 and 1963, he completed his LL.B., LL.M. and Ph.D. at the hu, followed by appointments there as lecturer in civil law (1963). In 1968 Barak was appointed associate professor of law and in 1974 full professor. Barak was also awarded the Israel Prize for law in 1974.

In the early 1970s Barak served as legal adviser to the un Committee on International Trade Law. In 1974 he was appointed dean of the Hebrew University Law Faculty. A year later, however, Barak's career took a sharp turn when he was appointed attorney general and legal advisor to the government of Israel. Not only had Barak assumed public office but he also had to master public and criminal law. During Yitzhak *Rabin's first term as prime minister of Israel (1974–77), Barak was officially involved in several political affairs that turned out to be instrumental in bringing down Rabin's coalition and paving the way for the first transfer of power in Israel's history, in the elections of 1977. Barak had backed a series of investigations on charges of corruption involving the government's candidate for governor of the Bank of Israel, an acting minister, and finally the prime minister himself. When faced with the prospect of criminal charges for maintaining an illegal foreign bank account, Prime Minister Rabin resigned on the eve of the 1977 elections, thus providing the final blow to Labor's chances of retaining power. During that stormy period Barak had introduced into the legal culture the term "Buzaglo Test," a phrase pertaining to the principle of impartial equality before the law for ordinary people and influential officeholders alike.

Barak then served for another year as attorney general under newly elected Prime Minister Menacḥem Begin. During that time he was also a member of the Israeli delegation to the Camp David talks with Egypt in September 1978. Despite his resignation from the office of attorney general upon his return to Israel and his appointment as a justice of the Supreme Court of Israel, during the negotiations on the peace treaty with Egypt in October 1978, he was asked yet again by the government to join the negotiating team and special permission for this purpose was granted by the minister of justice and the president of the Supreme Court. In this role Barak proved to be a key figure in reaching and drafting the peace agreement with Egypt.

As a Supreme Court justice, Barak served on many public committees, the most notable one being the *Kahan Commission created in September 1982 to investigate Israel's involvement in the 1982 massacres at the Sabra and Shatilla refugee camps in Lebanon. The Kahan Commission found that no Israeli was "directly responsible" for the massacre, but determined that Defense Minister Ariel Sharon bore "personal responsibility." It ruled that he was negligent in ignoring the possibility of bloodshed in the camps following the assassination of Lebanese leader and president-elect Bashir Jumayyil on September 14, 1982.

As one of the youngest justices ever named to the Israel Supreme Court, Barak became the most influential figure in Israeli jurisprudence, creating new legal doctrines and becoming the object of praise and attack from different quarters in Israeli society. Barak's contention that every human dilemma can be answered by a legal doctrine led to the development of several such doctrines that gradually expanded the Court's powers of review. One judicial doctrine which played an important role in the expansion of the Court's review was the doctrine of reasonableness: In hc 389/80 Barak drew the lines of reasonableness as an independent standard, ruling that an administrative act may be invalidated if it is unreasonable. This legal doctrine was later used to strike down a government decision to appoint to a high post a senior ex-Secret Service officer who had been granted a pardon for his part in a cover-up related to the deliberate killing of two captured terrorists (hc 6163/92). By exercising this measure of reasonableness, the Court also forced the resignation of a cabinet minister who maintained the right to remain silent during a criminal investigation (hc 3094/93).

Barak was the driving force in lowering the standing requirement that served as a barrier preventing citizens from petitioning the High Court of Justice. In the landmark Ressler case (hc 910/86), the Court affirmed the existence of the "public petitioner," providing that whenever a petition raises an issue of constitutional merit, or when there is suspicion of serious executive violations of the principle of the rule of law, any person is entitled to bring the petition into court, regardless of one's personal standing or interest in the outcome of the litigation. In writing the Court's decision Barak also referred to the legal question of judicability, and outlined a legal theory that would haunt him in later years: "…Any [human] action is susceptible of determination by a legal norm, and there is no action to which there is no legal norm determining it."

Barak proved to be the mastermind in a series of decisions in the mid-1980s and early 1990s that redefined the power relations between the branches of government and established the Supreme Court as a key institute of Israeli politics. The initial success, however, brought with it political resentment against the court. Barak became the target of ad hominem attacks uniting all forces that resisted limits on political autonomy and the increased involvement of the Supreme Court in public affairs. These attacks intensified after the passage of two Barak-supported basic laws in 1992 that pertained to human rights (Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Freedom). In his academic writings Barak defined this new legislation as a "constitutional revolution," thereby alarming the conservative and religious parties that traditionally resisted the adoption of a formal constitution. Those attacks have intensified following Barak's involvement in two court decisions viewed by many as interference with religious authority: In the Bavli case (hc 1000/92) Barak ruled that the Higher Rabbinical Court acted outside its jurisdiction by not applying a state law giving equal property rights to women and men in a case of divorce. Later, in the Danilowitz case (hc 721/94), Barak sat on the panel that granted the same-sex partner of an El Al male flight attendant the same privileges the company accorded the spouses of its other employees. Knowing that according to seniority, Barak was about to assume the office of president of the Supreme Court, personal attacks against him and against the alleged judicial activism of the Supreme Court became a common feature of Israeli public life, thereby eroding the Court's image as an institution standing over and above everyday political "squabbles." Barak received the appointment as president of the Supreme Court of Israel in 1995. During his term as president, the court turned out to be less active than before, showing more restraint and caution in political matters. Yet Barak was involved in several major decisions, among them the Ka'adan case (hc 6698/95), which accorded Israeli Arabs the same rights accorded to Jews to live on a communal settlement located on state land; the decision to outlaw torture during security-related investigations (hc 5100/94); a decision to release Lebanese detainees imprisoned in Israel as "bargaining chips" for securing the safe return of an Israeli air force navigator (Ron *Arad) captured on a combat mission (fh 7048/97); and redrawing the lines of the security fence in the West Bank (hc 2056/04) by taking the approach that the army's discretion related to lands under "belligerent occupancy" is not unlimited and that the fence's route must balance security considerations against the needs of local residents.

While serving as the president of the Supreme Court and head of the Judiciary, Barak continued to be active in academic writing, publishing numerous books and articles including several volumes in a series of books on "Interpretation in Law." "The Judge in a Democracy" (Heb.) was published in 2004.

Aharon Barak was a member of the Israeli Academy of Sciences and the American Academy of Sciences.

[Menachem Hofnung (2nd ed.)]

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