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 o