Adalah Challenges the Legality of the Mandate of the Newly-Appointed Commission of Inquiry

Yesterday, Adalah’s General Director, Hassan Jabareen, sent a letter to Prime Minister Ehud Barak and Supreme Court President Aharon Barak raising legal challenges to the mandate of the Commission of Inquiry.  Mr. Jabareen made the following points in his letter:

1. The government, in announcing its decision to establish a Commission of Inquiry on November 8, 2000, stated inter alia that the Commission will investigate how the events developed; determine the facts of, and draw conclusions about what happened; and investigate the factors that led to the events, including the behavior of inciters and organizers from all sectors of society and from the security forces.  The inclusion of an investigation into “the behavior of inciters” is illegal.  The appropriate mandate for the Commission of Inquiry is to investigate the killing of 13 Arab Palestinian citizens and the wounding of hundreds more during the demonstrations.

2. By including into its investigation the “behavior of inciters,” the government pre-determined that “incitement” is an established fact.  This presumption undermines the Commission’s authority to act as a professional body with discretion over its findings and with impartiality regarding the issues under investigation. 

3. Incitement is a felony according to the Penal Law (1977).  Thus, the Commission of Inquiry is mandated to play the role of a court, and to decide whether a person who is suspected of committing a felony is guilty or innocent.  Because the mandate includes investigating individuals for criminal charges, it violates the principle of the separation of powers.  It is not the role of a Commission of Inquiry to institute criminal charges, rather it is the responsibility of the Attorney General to investigate and initiate prosecutions, and the responsibility of the judiciary to rule on these matters.

4. It is not clear why the mandate of the Commission of Inquiry was expanded in this legally-suspect manner, while the appointing document for the Committee of Examination, dated October 22, limited the scope of the mandate of the Committee to an investigation into the events and the factors that led to these events. 

5. According to Israeli law, the aim of establishing a Commission of Inquiry is to investigate state authorities in cases in which their behavior created a loss of trust by the public.  This is different from investigating the conduct of citizens, who are subordinated to the state authorities. According to a leading legal scholar, Professor Segal: “The fact that there is an issue of vital public interest that justifies its investigation by a Commission of Inquiry proves the existence of widespread public unrest that is based on a trust crisis toward the government because of the government’s conduct or inaction.”  Professor Segal adds that the role of a Commission of Inquiry is solely to investigate issues regarding the actions of the government in front of the Knesset. 

6. Therefore, Adalah requests that the Prime Minister amend and correct the mandate of the Commission of Inquiry to focus on the conduct of the government and its representatives, who created a crisis of public distrust. Alternatively, Adalah asks the President of the Supreme Court to instruct the members of the Commission to seek this correction, so as not to undermine the principle of separation of powers and the authority of the Commission.

For additional information, please contact:

Hassan Jabareen, General Director – 04-950-1610