Adalah Attorney's Article on the Or Commission's Report published in Ha'aretz

Today, 13 October 2003, Ha'aretz published an article by Adalah Attorney Marwan Dalal responding to Professor Amnon Rubenstein's article "The Discrimination of the Or Commission" published in Ha'aretz on 5 October 2003. Professor Rubenstein is an Israeli legal scholar and a regular columnist to Ha'aretz. Attorney Dalal's article in Hebrew is available on the Ha'aretz Website.

The Commission Indeed Discriminated
Operative recommendations against Barak and Sharon are those that are missing from the Or Commission report

By Marwan Dalal

In his article, "The Discrimination of the Or Commission," (Ha'aretz 5 October 2003), Amnon Rubenstein criticizes the Or Commission - pursuant to [former Prime Minister Ehud] Barak's critique of the Commission - for its failure to issue operative recommendations against the elected Arab leaders who received warnings from it.

The Or Commission was right in not issuing recommendations against these elected figures, and it was mistaken, from the beginning, when it issued warnings against them. An official commission of inquiry is an arm of the executive branch. Its purpose is to critically examine the government's conduct, actions or omissions that caused a loss of public trust. It is not supposed to examine political positions, or lawful political actions undertaken by political currents.

The discrimination committed by the Or Commission differs from that which Rubenstein characterized as between executive branch officials and elected Arab figures that were warned. Rather, the discrimination is between the latter and Jewish elected figures that were not summoned at all to testify before the Commission; at the top of this list is Ariel Sharon. Sharon's provocative visit to al-Aqsa mosque compound on 28 September 2000 received minimal attention in the Or Commission report because according to the Or Commission, this date did not fall within its mandate. On the other hand, the Commission examined political statements made by Arab public figures since 1998. The Or Commission's disregard for Sharon's conduct is also peculiar because police intelligence material in the Commission's possession warned of its danger.

The Or Commission's position in warning elected Arab public figures is problematic not only because of its discriminatory character but also because of its content. The Commission's basic assumption was too compatible with the basic assumptions of establishment assessment bodies that are hostile to the mere politicization of Arab society - for example, the Advisor on Arab Affairs to the Chief of Police at that time.

It is not clear, however, why the Commission failed to adopt any operative recommendation vis-a-vis Barak. The main explanation provided by the Commission was that the Prime Minister, according to his authority, was in charge of many issues at that time, and therefore, the reasonableness of his decisions is examined with flexibility. It is hard to be convinced from this explanation, which was not supported by any legal reference. This explanation also leads to the unreasonable conclusion that the same instruction given to the police by the Prime Minister and the Chief of Police is to be reviewed differently because the former has more authorities than the latter.

But even according to the Or Commission's approach, it should have issued operative recommendations vis-a-vis Barak. The Commission concluded that in October 2000, Barak "did not do enough to stop the use of lethal measures by the police or to limit it." The Commission added, regarding his briefing to the Security Cabinet, that "it sounds from this argument [Barak's], before us now, that not only can one not rely on the ministers to abide by the duty of confidentiality regarding the things that are mentioned in the meetings of the committee of ministers for security matters but also that because of this, the Prime Minister does not tell them the truth, rather gives them false information regarding his position ..."

As to the documentation of the decisive meeting held in Barak's home on the night of 1 October 2000, during which he instructed the police on how to operate the next day: Until this day, we do not know from a first-hand source, at least, if Barak did not instruct the police to use all means in order to open blocked roads. This meeting was not documented, and there are conflicting versions by Barak's military secretary and his deputy regarding the reason for the lack of documentation. "It is hard to reconcile between the conflicting versions regarding this matter and no convincing explanation was given for these conflicting versions," the Or Commission stated.

The principal question that we hoped would engage Professor Amnon Rubenstein, the author of the leading book on constitutional law in Israel, is why there was a need to establish an official commission of inquiry. Even a minimal culture of governance should have mandated the resignation of the government, based on the principle of collective responsibility of its members, for what happened in October 2000. It is a pity that this question is still not before him.

Advocate Dalal is an attorney with Adalah, which represented 'Abd al-Malek Dahamshe, Azmi Bishara, and Sheikh Ra'ed Salah before the Or Commission.

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