Only a Judicial Commission of Inquiry

Only an official commission, and the publication of the majority of its report, could win Israeli and foreign trust.

Ze'ev Segal
Ze'ev Segal
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Ze'ev Segal
Ze'ev Segal

Despite all the grave questions arising from the Gaza flotilla clash, the government will presumably, as it has in the past, not want to set up a judicial commission of inquiry, appointed by the president of the Supreme Court and headed by a senior judge. The contortions over the inquiry into the Second Lebanon War - a far more complex probe than that called for now - exemplify the lengths a government will go to in order to evade a trustworthy and objective investigation.

A Knesset panel discussing the Winograd committee’s findings in 2008. Such an investigation is needed to show Israel’s seriousness.Credit: Archive: Ouria Tadmor / Jini

But only such an investigation will show Israel is prepared to examine itself seriously. Along with transparency and readiness to acknowledge responsibility, this kind of probe is necessary in terms of the cost-utility tradeoff - no other form of probe will be deemed credible, neither in Israel nor abroad.

The ostensible inquiry into the Lebanon war began when then-defense minister Amir Peretz hastily set up an internal panel lacking investigatory powers. It was headed by his close associate, former chief of staff Amnon Lipkin-Shahak, with whom he had consulted during the fighting. Due to public pressure, this attempt at a home-made investigation failed, paving the way for the cabinet to appoint a government committee of inquiry, as is permitted under the 2001 Cabinet Law. The committee was headed by retired senior judge Eliahu Winograd, which gave it investigatory powers, in keeping with a decision by the justice minister and the cabinet's approval.

For many, it was clear that the Winograd committee, whose members were appointed by prime minister Ehud Olmert and Peretz, was not appropriate for investigating a matter as broad as a war. When the Knesset passed the 2001 Cabinet Law, MK Ofir Pines-Paz said in the plenum that such government committees of inquiry were meant for "small to medium" matters. However, the Supreme Court rejected a petition against the Winograd committee, mainly because its hearings were already well along.

Olmert, by blocking the establishment of a judicial commission of inquiry, whose members are appointed by the Supreme Court president, was taking a well-trodden path. In 1982, the Begin government also tried to avoid appointing a judicial commission of inquiry to probe the massacres at the Sabra and Chatila refugee camps, and asked then-Supreme Court president Yitzhak Kahan to head an inquiry committee, whose activities and publications would be controlled by the government. Kahan's refusal and the 400,000-person protest in Tel Aviv forced the government to appoint a judicial commission of inquiry, which Kahan himself headed.

Subsequent governments continued to avoid judicial commissions, in the cases of both the Jonathan Pollard affair and the Mossad's botched attempt to assassinate Hamas leader Khaled Meshal. There were probes, which did not win much public confidence. The Supreme Court did declare it could intervene in a decision not to establish a judicial commission of inquiry "in exceptional and rare cases," but all petitions demanding the court do so have been rejected because of the political nature of such a decision.

While the government has wide discretionary powers, it should be aware that only a judicial commission could prevent legal proceedings in hostile international forums. The head of the international probe into Operation Cast lead, Judge Richard Goldstone, said such a commission could have been a substitute for the Security Council probe, which may lead to sanctions against Israel. In the case of the flotilla, there is a vital public interest - for Israel, internally and externally - in the government asking the Supreme Court president to set up a judicial commission of inquiry to answer questions the affair has raised.

Only such a commission, and the publication of the majority of its report, could win Israeli and foreign trust, and prevent hasty conclusions condemning Israel before all relevant information is examined.



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