The Winograd Commission, the commission that is currently investigating the Second Lebanon War that took place in the summer of 2006, will soon publish its interim report. The interim report, scheduled to be released on April 30th, 2007, will examine the situation along Israel’s northern border since Israel’s withdrawal from southern Lebanon in May 2000 and investigate Israel's actions in the years leading up to the recent war. The commission will continue its work following the release of the interim report and is scheduled to release a full report in the summer.
On April 30th, the commission will convene in the Prime Minister’s office and present the report to Prime Minister Olmert one hour before releasing it to the public at a press conference, which will be preceded by a speech from the committee chairperson, former Supreme Court Justice Eliyahu Winograd.
The Winograd Commission was established over eight months ago following the government's decision to "examine findings, determine conclusions, and submit recommendations as it sees fit on the matter of the political echelon and the defense system in all aspects concerning the battle in the north" (government resolution 525). The Winograd Commission is a governmental investigative committee (or commission, also known as a governmental review panel), and as such, it aroused much public debate. The public demanded a state commission of inquiry, a more prestigious type of commission which the public trusts. A governmental investigative committee as opposed to a state commission of inquiry is seen as not objective since it is not sufficiently independent.
To this day, 15 state commissions of inquiry have been established, two of which were established following wars: The Agranat Commission of Inquiry, after the Yom Kippur War (1973) and the Kahan Commission of Inquiry which investigated the Sabra and Shatilla Massacre during the war with Lebanon (1982). For the most part, the government doesn't readily establish a state commission of inquiry, and many such commissions were established due to public pressure, despite the government's attempts to make do with a governmental investigative committee. For example, the Landau Commission which examined the Shabak's methods of interrogation was established after various incidents relating to the Shabak's functioning (the Bus 300 affair and the Izzat Nafsu case) were investigated in commissions that were unable to uncover the facts. The Or Commission of Inquiry, which investigated the October events (2000), was also established due to public pressure, mostly from Arab citizens, after a governmental investigative committee had already been established.
The Knesset plenum or Knesset committees can call upon the government to establish a state commission of inquiry, but they cannot oblige the government to do so. The State Control Committee, in special cases whereby it has two-thirds agreement and the approval of the State Comptroller, is entitled to order the establishment of a state commission of inquiry. The courts have refrained from interfering in the establishment of state commissions of inquiry, or lack thereof. The government prefers to establish governmental committees, to nominate its own members to serve on a committee with relatively limited authority. However, the establishment of governmental investigative committees has been met in the past with public resistance and a call for establishing state commissions instead.
Attributes of governmental investigative committees and state commissions of inquiry
The legal basis for establishing commissions
Governmental investigative committees function in Israel according to section 8A of the Government Act, 2001; and their establishment derives from the government's authority. The committee's purpose is to examine a particular event. The minister who appoints the members of the committee must have jurisdiction over the affairs which the committee will examine. By contrast, state commissions of inquiry are established according to the Commissions of Inquiry Act, 1968, and are derived from a 1921 British Mandate law. State (or national) commissions of inquiry can be found mostly in Commonwealth states: Great Britain, Canada, Australia, and New Zealand and in countries that have been influenced by British law, including India and Israel.
State commissions of inquiry are unique in that their functioning is stipulated by law. The commission's authority is also rooted in law whereas a governmental investigative committee stems from prerogative; its authority is rooted in the authority of the entity that established it.
The basis on which committees are established
The first section of the Commissions of Inquiry Act states that a state commission of inquiry may be established on "matters of the hour of crucial public importance in need of clarification." From this phrase we can interpolate that historical committees of inquiry shall not be established since they are not "of the hour," that such committees hold "public importance," and that the commission's report is therefore not considered a legal document. Despite the legal terminology, state commissions of inquiry have been established on topics that were not current at the time of the commission's establishment, such as the Bechor Commission (1981) that investigated the murder of Arlozorov, or were established to examine topics that did not require investigation of facts but a decision on policy such as the Netanyahu Commission (1988) that examined the functioning and efficiency of the health care system.
The government defines the topic which the commission will examine and the extent of the investigation in a letter of appointment. For example, the Kahan Commission of Inquiry was established in order to examine "all of the facts and factors relevant to the atrocities that were perpetrated by a unit of Lebanese forces against the civil population in the Sabra and Shatilla camps" (quoted from the commission's letter of appointment). The commission was not given assent to investigate the broader topic of the war in Lebanon nor the decision-making process during the war.
The appointment of commissions: the appointer and the appointee
Members of a governmental investigative committee are appointed by the Prime Minister or by the minister that initiated forming the commission. In other words, when a governmental committee (as opposed to a state commission) is established, the government has direct influence on the identity of the members. The law does not stipulate the arrangement of the committee, and does not require a judge as its chairperson. Nevertheless, the law emphasizes that if someone's membership in the committee would pose a conflict of interest with their post, said persons are disqualified from serving on that committee.
State commissions of inquiry are also established following a government decision (section 1 of the Commission of Inquiry Act, 1968) The only other way for a state commission to be established is by the Knesset's State Control Committee, in special cases whereby they have two-thirds agreement and the approval of the state comptroller (section 14b of the Comptroller Law, 1958). This occurred only once; the Beisky Commission that investigated the bank stock crisis (1985) was established despite the government's opposition.
Even though a state commission of inquiry is established by the government, the committee's members are chosen by the President of the High Court of Justice. This innovation is unique to Israel. A state commission of inquiry usually includes 3 members and is chaired by a, retired or practicing, Supreme Court or District Judge.
Ramifications of appointing members
The subject of appointments is crucial since it raises the issue of conflicts of interest. One wonders how appropriate it is that those under investigation appoint those who will investigate them. This issue is of particular concern regarding the Winograd Commission. A non-profit anti-corruption organization by the name of Ometz petitioned the High Court of Justice to terminate the governmental investigative committee and establish a state commission of inquiry in its stead. Ometz claimed that the merging of those investigating with those under investigation is problematic and could potentially limit the depth of the investigation. Although a few judges agreed with Ometz' claim, most of the judges ruled that it is customary that the executive authority appoints members in a state commission of inquiry not only in Israel, but in other countries as well. The similarities between the two types of commissions are vast enough that in this particular case, the judges found no reason to exchange one type pf commission for the other. And, indeed, in Great Britain, Canada, Australia, and New Zealand, the government decides to establish a state commission of inquiry and appoints its members. Israel is different in this respect, and even though the government decides of establishing a state commission, it is the President of the High Court of Justice that appoints the commission’s members. State commissions of inquiry in other countries are therefore more similar to the governmental investigative committees in Israel which are appointed by the government.
The Commission's authority
A state commission of inquiry is unique in the broad authority it is given by law. It can subpoena witnesses, and can uncover documents and other exhibits (according to sections 9, 11, and 20 of the Commission of Inquiry Act, 1968). The commission is given the authority of a court of law including sanctions on false testimony, and it has a separate entity for collecting evidence at its disposal.
A governmental investigative committee does not have these privileges, although if it is headed by a retired judge (as is the case in the Winograd Commission) it can acquire these privileges by requesting them from the Minister of Justice, contingent upon the government’s approval. If such approval is granted, the committee will have the right to subpoena witnesses, apply sanctions on those who refuse to testify, and uncover documents.
Conclusions and recommendations
Public disclosure
The discussions of a state commission of inquiry in Israel are usually conducted publicly, but the commission may hold a discussion in chambers if it is for the purpose of preserving national security. The state commission of inquiry submits its report to the government, and the publication of the report – the decision whether to publish it in full, to publish sections of it, or not to publish it at all – is not made by the government, but rather determined by the commission. In Israel, it is customary that state commissions of inquiry do not only clarify facts, but also propose recommendations. The government, however, is not required to accept either the conclusions on the facts or the normative recommendations of the commission of inquiry.
Regarding a governmental investigative commission, the law does not stipulate the manner in which the commission should conduct its discussions, and this is left to its discretion. A discussion on the public disclosure of the commission’s discussions took place in the context of the Winograd Commission, when MK Zahava Gal-On of the Meretz-Yahad faction petitioned the High Court of Justice and demanded that the discussions be disclosed. The petition was rejected, but the High Court of Justice ruled that the commission must publish the minutes (which do not include material that is classified for security reasons) of its discussions even before it submits the report. Governmental investigative commission reports are submitted to the appointing agency, and its conclusions do not have to be published, although public pressure is usually brought to bear demanding their publication. Since the conclusions of governmental investigative commissions do not have to be made public, the appointing agency is free to decide whether to accept or reject their recommendations. But here, too, public pressure is the critical factor in the acceptance of the recommendations.
Legal force
Reports submitted by commissions of inquiry cannot serve as evidence in a legal proceeding, and the commission’s recommendations do not have the legal force of a court ruling. However, in case of suspected criminal acts, the commission is required to inform the attorney general of its suspicions. Ultimately, it is the verdict of the public that tips the scales, not necessarily the recommendations of the commission. For example, the report of the Agranat Commission determined that Prime Minister Golda Meir and Defense Minister Moshe Dayan employed reasonable judgment, but despite this, public calls for their resignation were voiced, and they indeed resigned, albeit long after the publication of the commission’s interim report. An opposite example is the determination of the Kahan Commission that Defense Minister Ariel Sharon should be removed from his post. Then Prime Minister Menachem Begin indeed removed him from his post as Defense Minister and appointed him as Minister without Portfolio, but two decades later the public elected Ariel Sharon as Prime Minister. The criticism that the Kahan Commission directed at his performance did not serve as an obstacle when the public passed judgment on him years later, although he did not return to serve as Defense Minister.
Dilemmas regarding the report of a commission of inquiry
The commission’s report is the culmination of its work, which brings the issue of its publication into question. The first of four relevant questions pertains to the content of the report: should it only include a factual clarification, or should the commission also incorporate the normative conclusions regarding proper behavior, and draw conclusions for further steps that should be taken as a result of the factual clarification?
State commissions of inquiry established over the years have adopted different positions on the question of their role:
The first state commission of inquiry, which was established on the matter of the fire at the Al-Aqsa Mosque, limited itself to factual clarification (the Zussman Commission, 1969), as did the first Shamgar Commission (1994) investigating the massacre at the Tomb of the Patriarchs in Hebron. In contrast, other commissions (including the Agranat Commission for the investigation of the Yom Kippur War, 1973; the Kahan Commission for the investigation of the massacre at the refugee camps in Lebanon, 1982; the Beisky Commission for investigation of the bank stock crisis, 1984; and the Or Commission appointed to investigate the October 2000 events) adopted a broader perspective on the commission’s role and incorporated into the report personal recommendations on people holding key positions related to the investigated events.
Pros:
Over the years, it has become customary for commissions of inquiry to include conclusions and recommendations in their report. Those who support this position believe that part of the public mandate given to it is based on the expectation for the commission to assign blame for the failure, and recommend sanctions according to the degree of responsibility, so that those to blame for the failure will be held culpable. If the commission of inquiry settles for establishing the facts without submitting recommendations, the commission’s report may appear to the public as an attempt by the executive branch to whitewash the affair and will heighten the sense of mistrust that was the cause of the commission’s establishment in the first place.
In principle, those who view the recommendations of the commission as necessary, believe that the commission plays a public-moral role, delimits the boundaries of proper political and public behavior, and sets ethical standards in political culture. Commissions of inquiry – mainly the state commission, but also an investigative commission headed by a judge, which holds similar powers to those of a state commission of inquiry – have legal prestige, and there is importance to having a body that enjoys the confidence of the public and expresses the public interest by personal recommendations on the matter of elected and appointed representatives.
Cons:
Conversely, some believe that a commission of inquiry’s role is solely the factual clarification of the matter being investigated, for a number of reasons:
- The commission is a professional appointed body, whereas recommendations belong to the political realm. When the commission formulates recommendations it is in effect playing a political role, which exceeds its quasi-legal purpose of investigating the facts.
- The commission’s professional advantage lies in its ability to clarify the facts in full, whereas in the realm of determining recommendations it is not preferable to any other body.
- Involvement in political matters could damage the standing of the commission, since formulating recommendations places it in the eye of a political storm, and could damage its neutral and professional perspective.
- Judges who head commissions might find themselves involved in political processes, while by virtue of their position they should remain above political controversy. This state of affairs could damage the prestige of the judicial branch.
- A commission of inquiry is established in order to restore the public’s confidence in the political system and in order to alleviate controversy, but the recommendations of the commission could arouse controversy due to their political nature.
- Some believe that publishing recommendations by commissions of inquiry could deter the government from establishing commissions of inquiry in the future, a measure which, at present, the government rarely takes.
The second question concerning the commission’s report is whether the government is required to adopt the commission’s conclusions. The law does not require the government to adopt the conclusions of the commission, nor implement its recommendations, in a governmental investigative committee or a state commission of inquiry. However, it is generally agreed upon that the government must accept the factual findings of the commission or committee, otherwise it would be undermining the purpose of its work. It is also agreed upon that the government’s obligation to accept the commission’s recommendations should not be anchored in law, since such a determination would deter it from establishing commissions of inquiry in the future.
Despite the absence of a formal requirement, some believe that the very fact that the government has decided to establish a commission of inquiry requires it to accept that commission’s authority and also subjects it to possible judicial review. This means that in the event that the government does not adopt the commission’s recommendations, the court may scrutinize the considerations behind this decision. From a public standpoint, rejecting the recommendations of the commission of inquiry is liable to heighten the crisis of confidence between the public and the government.
Conversely, some believe that the decision of whether or not to accept recommendations should be at the government’s discretion since it decided to establish the commission. Obliging the government to accept and implement the recommendations of the commission would contradict the principles of the democratic regime which require accountability and responsibility of the government towards the Knesset; meaning, the government cannot be bound by the recommendations of a commission of inquiry, even though it appointed that commission. The government’s judgment should not be subject to judicial review, but rather to political and public directive, which could be manifested, for example, in a vote of no confidence by the Knesset against the government in the political sphere, or in demonstrations in the public sphere.
According to this view, the commission of inquiry should not occupy the role of other bodies in the political system. The recommendations of the commission are not a substitute for the government’s judgment and are not supposed to decide on a matter on which the executive branch is having difficulty deciding. They also do not fill the Knesset’s role of supervision and control and do not render the public’s positions superfluous.
To this day, the government has never rejected the recommendations of a commission of inquiry. However, the government has exhibited several typical reactions to the recommendations. In the case of personal recommendations, which until now have mostly referred to the appointed echelon, the government has accepted the commission’s recommendations and implemented them to the letter; it is important, however, to note that not many such cases have been cited. In the case of the Kahan Commission, which recommended that the Prime Minister remove the Defense Minister from his post, the recommendation was not couched in unequivocal terms making it possible for the Prime Minister to exercise judgment and remove Ariel Sharon from the post of Defense Minister but leave him in the government as a Minister without Portfolio.
The situation is quite different when it comes to general recommendations, which address the structure and functioning of the systems being investigated. In this context, many of the recommendations remain purely theoretical, and this usually does not arouse public criticism or judicial review. Such was the case in the Agranat Commission recommendations regarding the structure of the intelligence community and the relations between the intelligence agencies, which were implemented years later, and the recommendations of the Beisky Commission on the structure of the capital market, as well as the Etzioni Commission’s proposals on the structure of the Israel Football Association.
A semi-legal approach towards commissions of inquiry could have negative implications for democratic political culture in Israel. Instead of fostering concepts of responsibility and encouraging criticism by other bodies in the political system (the Knesset) and by the media and through public opinion, the commission of inquiry is perceived as a substitute for all these. The expectation that the commission will point at culprits relieves the government of the duty to employ independent judgment, and provides a reprieve from making tough decisions. In other words, semi-legal judgment replaces political judgment. Therefore, informed use of these commissions should be made, and care should be taken not to replace political institutions with them and not to erode their high status.
The third question that should be raised in the context of a commission of inquiry’s report addresses the issue of responsibility. Commissions of inquiry that prepare recommendations usually address the topic of responsibility, i.e., who bore the responsibility and who failed to meet it. Two state commissions of inquiry that contributed to instilling norms of responsibility by elected and appointed officials were the Agranat Commission and the Kahan Commission. Both of them chose to assign responsibility or refrain from doing so, particularly to the political echelon.
The political echelon bears ministerial responsibility. This responsibility is twofold:
- Personal ministerial responsibility, which refers a minister’s actions or lack thereof.
- Overall ministerial accountability, which refers to a minister’s responsibility for any action or inaction of his officials, even if these were done without his consent or knowledge.
The distinction between the two aspects of responsibility is equivalent to the distinction between the use of the terms “responsibility,” which is equivalent to personal responsibility, and “accountability,” which is equivalent to overall responsibility.
The distinction between the two is not absolute, and there are interim situations in which responsibility and accountability overlap. In a case where a minister acts according to an opinion that is based on unreliable information, personal responsibility extends to accountability. Accountability, on the other hand, can turn into personal responsibility when failure at lower levels is the result of a lack of proper supervision on the part of higher echelons. Therefore, the existence of a hierarchy of authority creates a chain of responsibility; and in case of a failure, the responsibility passes from lower echelons to higher ones.
In Israel, ministerial responsibility is not anchored in law. The Basic Law: The Government does not explicitly state that ministers bear ministerial responsibility towards the Knesset. The law rather states that there is joint responsibility of the government towards the Knesset and the ministers towards the Prime Minister in the roles with which they are charged (Section 4). State commissions of inquiry have contributed to shaping the norm of ministerial responsibility.
The Agranat Commission declared that it will only examine the personal responsibility of the ministers. With regard to the political echelon, the commission excused the Prime Minister and the Defense Minister of personal responsibility; meaning, it did not find fault in their judgment and decision making, taking into account the data and information that they held. Conversely, with regard to the appointed military echelon, the commission found that several senior position holders (including the Chief of Staff, head of the Military Intelligence Directorate and GOC Southern Command) bear direct personal responsibility for the failure, and the commission recommended that they be removed from their posts. However, the fate of the political echelon was decided upon in the political-public sphere, and shortly after the publication of the commission’s interim report, the Prime Minister and the Defense Minister resigned in the wake of massive public pressure.
The Kahan Commission also did not discuss overall ministerial accountability, but the main innovation in the commission’s report was defining two types of personal responsibility: direct and indirect. In the case being investigated, the massacre in the refugee camps in Lebanon, the commission unequivocally relieved all relevant Israeli parties of direct responsibility, and cast the direct responsibility on the Phalangist forces. However, the commission did not stop there, and went on to define indirect personal responsibility for the atrocities, i.e., indirect personal responsibility that refers to the failure to take action and the incorrect evaluation of the outcome of a third party’s actions. The commission determined that Chief of Staff Rafael Eitan and Defense Minister Ariel Sharon bear indirect personal responsibility.
Responsibility and authority
The differences between a governmental investigative committee and a state commission of inquiry, among other causes, stem from the changes that occurred in the legal framework in which the defense system operated.
The legal framework of the defense system
In 1948, the Law and Administration Ordinance was passed, giving the provisional government the authority to assemble armed forces (section 18). Out of this act came an act that regularized the Israel Defense Forces (IDF). The latter attempted to regulate the relationship between the three levels of command (the Prime Minister, the Minister of Defense, and the IDF Chief of Staff), and thus, for the first time, civil authority for the IDF was defined. The government, however, did not determine who is actually in charge of the defense system until 1968 when the Basic Law: The Government attached residual authority to the government over the defense system. After the Yom Kippur war, and in the wake of the Agranat Commission publicizing its conclusions, in 1976 the Basic Law: The Army was passed which defined the role of the IDF within the government system.
The amount of authority each of the three levels of command has reflects the amount of responsibility each carries. In its conclusions, the Agranat Commission of Inquiry did not hold the political echelon generally responsible since it did not have the authority to interfere with military actions. And, since the political echelon does not hold its own intelligence operation, it did not have the means to form an opinion different from that of the army. Additionally, personal responsibility was not assigned since the government, as a whole, was responsible for the IDF, and it was impossible to blame every government official for an institution under its dominion – which is why particular individuals could not be blamed either. The Agranat Commission recommended that that the political and military echelon’s authority be explicitly defined; and three years later the Basic Law: The Army was passed. The commission also recommended establishing an independent intelligence organization. This recommendation was implemented 9 years later, in March 1999, when the National Security Council was established.
The Kahan Commission of Inquiry placed indirect personal responsibility on the political echelon, specifically on then Defense Minister Ariel Sharon, because of the extensive authority he held over the army. The commission’s recommendations show that the amount of authority is directly proportional to the amount of responsibility.
The fourth question relating to the publicizing a commission’s report is if it is the commission’s job to discuss general ministerial responsibility and to form recommendations.
It seems as if it makes no difference whether a commission recommends removing a minister from his/her post because of personal responsibility or because of general ministerial responsibility. But, those who believe that a committee should not form recommendations and just point to the facts say that a committee should not form these recommendations because there is a difference between responsibility towards the public and legal responsibility. If a commission of inquiry does not hold someone responsible, it doesn’t mean that they are not legally guilty in the matter. It is important to note that in a democracy, there are other entities that serve an important role in determining general and personal ministerial responsibility.
Works cited
Books and articles:
Israel, The Agranat Commission Report. 1975. Commission of Inquiry – Yom Kippur War. [Hebrew] Tel Aviv: Am-Oved.
Israel, 1983. Commission of inquiry into the Events at the Refugee Camps in Beirut. Final Report (authorized translation), Presented by Yitzhak Kahan, Aharon Barak, and Yonah Efrat. Jerusalem.
Ben Ze’ev, Moshe. 1989. “The Political Echelon vs. State Commissions of Inquiry: Confrontation, Tension, Fear” In Menachem Alon ed. Yitzhak Cohen Book. [Hebrew] Tel Aviv: Papyrus. pp 234-244.
Hofnung, Menachem. 1991. Israel - Security Needs Vs. the Rule of Law -1948-1991. [Hebrew] Jerusalem: Nevo Publishing House. pp 259-276.
----------. 1996. “Civilian Supervision on Defense” In Moshe Lisak and Baruch Keni-Paz eds. Israel Towards the 21st Century. [Hebrew] Jerusalem: Magnes. p. 233-253.
Zamir, Yitzhak. 1983. “Commissions from a Legal Standpoint.” The Prosecutor. Vol. 35 (3).[Hebrew] pp 323-332.
Segel, Ze’ev. 1984. “Commissions of Inquiry by Commission of Inquiry Act, 1968, their Constitutional Standing and their Legitimate Area of Functioning.” Legal Research 3. [Hebrew] pp 199-246.
----------. 1988. Israeli Democracy. Tel Aviv: the Ministry of Defense. [Hebrew] pp 204-224.
Kalgesburg, Avigdor. 2001. State Commissions of Inquiry. [Hebrew] Srigim Leon: Nevo.
Rubenstein, Amnon. 2005. The Constitutional Law of the State of Israel. [Hebrew] Jerusalem: Shoken. pp 1030-1047.
Laws and court rulings [Hebrew]:
High Court of Justice 2728/06 Ometz vs. the Prime Minister of Israel
Haifa University’s law school:
http://law.haifa.ac.il/lawatch/lawatch_files/2007a_public_law672806.doc
Government law, 2001:
http://www.knesset.gov.il/laws/special/heb/goverment_law.htm
Command of government and law rulings, 1948
http://www.knesset.gov.il/laws/special/heb/law_and_order.htm
Basic Law: The Government, 2001:
http://www.knesset.gov.il/laws/special/heb/yesod14.htm
Basic Law: The Army 1976:
http://www.knesset.gov.il/laws/special/heb/yesod11.htm