Unnatural Behavior

The High Court of Justice had its say about the way the conduct of the government and of the army should be investigated with regard to second Lebanon war.

While Brigadier General Gal Hirsch is conducting the fight of his life and the last battle for his good name in the chief of staff's bureau; while the General Staff's senior officers are barricading themselves in their rooms behind mountains of documents to defend their positions; while the chief of staff is preparing among his circle of friends to land a sudden blow to save his honor and demonstrate leadership, the High Court of Justice had its say about the way the conduct of the government and of the army should be investigated with regard to second Lebanon war.

If Ehud Olmert had listened to the High Court ruling three days ago, he would have saved the embarrassing and destructive running around in the Israel Defense Forces and opened the door to an organized and authoritative investigation of the events of the war, in which the public would have had faith and that might even have calmed the storm in the General Staff.

On Thursday night the High Court released its ruling regarding the petitions against the establishment of a government committee to examine the conduct of the IDF and the government during the war. Ostensibly, the court approved the continuation of the work of the Winograd Committee but woe to the government and woe to the committee that receives such a stamp of approval. Not only did three of the seven justices state clearly the cabinet's decision on the Winograd Committee should be revoked, but the reasoning of the majority opinion was a severe reprimand of the nature of the considerations guiding Olmert in his decision to appoint an inquiry committee.

The court's deputy president, Justice Eliezer Rivlin, who wrote most of the majority opinion, does not hide his opinion as to the correct alternative to an examination of the events of the war. A state committee of inquiry, he writes is "the best, most comprehensive and reliable way, and which naturally would have the faith of the public." He also wrote that "the lack of a judicial reason to intervene in the cabinet decision does not necessarily express satisfaction with the decision," and "the rejection of the petition does not necessarily put a stamp of approval on it on the public level." He said "the impression must be avoided that the court's refraining from involving itself in this case does not say there is no defect or flaw in the actions of the government."

Rivlin and justices Asher Grunis, Salim Joubran and Esther Hayut rejected the petition because the cabinet did not exceed reasonability in its decision to establish the Winograd Committee. In other words, it was not the normative nature of the cabinet's decision that received the approval of the majority of the justices, but rather a technical-judicial consideration. But the whole idea of the establishment of systems of scrutinizing government actions touches on the realm of proper conduct, not necessarily in the judicial realm specifically. Justice Ayala Procaccia, one of the three in the minority opinion (together with justices Miriam Naor and Elyakim Rubinstein), noted this. In her opinion, Procaccia emphasized the wide public character of the issue of the examination and the faith of the public as the main value to be protected.

In consideration of this, the conclusion to be drawn from the opinion of both the majority and the minority is that the Winograd Committee should stop its work of its own volition. Procaccia and her colleagues who share her opinion also dealt with the legal level, with the decision of the majority that there is no reason for the High Court to intervene, and found the cabinet's decision tainted with unreasonability and a conflict of interest and thus should be abrogated. However beyond formalistic legal reasoning, the members of the Winograd Committee should listen to the moral-public reasoning of all seven justices.

Neither is Olmert exempt from heeding the voices that emanated from the High Court in Jerusalem. The justices were telling him that he behaved unnaturally when he chose a government committee of inquiry, even if most of them thought that did not mean the decision should be struck down. The reality in the IDF and the wider public (as shown in public opinion surveys) attests to a lack of faith and an extreme weakening of the leadership's authority, which, among other things, result from the way the war is being investigated. In this situation, how can the Winograd Committee continue its work and how can Olmert function as prime minister?