Adalah Files a Motion to the Commission to Rescind Warnings Against Arab Leaders

13/03/2002

Yesterday, Adalah submitted a motion to the official Commission of Inquiry into the October 2000 protest demonstrations (hereafter "the Commission") on behalf of Member of Knesset (MK) Dr. Azmi Bishara (National Democratic Assembly party), MK Abdel-Malik Dehamshe (United Arab List), and Sheikh Ra'ed Salah (leader of the Islamic movement in Israel) requesting that the Commission rescind the warnings issued against them. On 27 February 2002, the Commission issued 11 warning letters to former Prime Minister Ehud Barak, former Minister of Internal Security Shlomo Ben Ami and police officials, and the three Arab public representatives. The letters detail the Commission's tentative conclusions of its inquiry and warn each of the recipients that they are liable to be harmed for their actions and/or omissions during the October 2000 events.

Adalah argued that the issuance of warnings against MK Dr. Bishara, MK Dehamshe and Sheikh Ra'ed Salah constitute a breach of power by the Commission and is discriminatory. In Adalah's view, the warnings issued against the three Arab public representatives are illegal for the following reasons:

Mandate of the Commission: Breach of Power and Discrimination

The inclusion of the issue of "incitement" within the mandate of the Commission violates the Commissions of Inquiry Law (1968) and contradicts past commission precedent. Moreover, the Commission investigated issues of incitement only as to Arab public representatives. By singling out Arab leaders and choosing not to investigate Jewish rioters, the Commission carried out its mandate in a discriminatory manner.

Established by the Israeli government on 8 November 2000, the mandate of the Commission is to "investigate the clashes between the security forces and Arab and Jewish citizens, which culminated in the death and injury of Israeli citizens starting from 29 September 2000." It further calls for an investigation into "the behavior of the inciters, organizers and participants in the events from all sectors, and the security forces." According to Israeli law, the purpose 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 other state authorities. The vast majority of past commissions of inquiry have followed this rule. For example, the second Shamgar Commission (1996), which investigated the circumstances surrounding the assassination of Prime Minister Yitzak Rabin, primarily focused on the failure of the General Security Services (GSS) to adequately protect him. It did not investigate the incitement of the settlers against Rabin prior to his assassination.

Adalah challenged the legality of the mandate, based on the illegal inclusion of the issue of incitement, on three occasions, however the organization did not receive a reply to any of its letters. By failing to give any consideration to these arguments, the Commission's decision to warn the three Arab leaders is flawed.

In 12 November 2000, a few days after the establishment of the Commission, Adalah sent a letter to Prime Minister Ehud Barak and Supreme Court Chief Justice Aharon Barak asking that the mandate be amended and corrected to focus solely on the conduct of the government and police officials. At that time, Adalah also questioned why the mandate of the Commission was expanded in this legally-suspect manner, while the mandate of the Committee of Examination (which was dissolved with the establishment of the Commission) did not include to an investigation into incitement.
On 19 November 2000, Adalah sent a letter to the newly-appointed members of the Commission requesting that they use the powers granted to them by Article 2(b) of the Commissions of Inquiry Law (1968) to seek a change in the mandate, namely, to exclude the mention of incitement.
On 28 November 2001, soon after Arab public representatives began to give their testimonies before the Commission, Adalah sent another letter to the Commission. Adalah referred to its previous letters and arguments concerning the mandate and expressed its concern that only Arab leaders were being investigated for incitement.

Further evidence of discrimination is that the warnings issued against MK Dr. Bishara, MK Dehamshe and Sheikh Ra'ed Salah cover a period of two years. The Commission charged the Arab public representatives with allegedly supporting violence to achieve political objectives from 1998-2000. However, the Commission chose not to investigate or seek testimony from, let alone warn, Ariel Sharon, leader of the opposition Likud-party at that time, for his provocative visit to the Haram al-Sharif compound on 28 September 2000, a day before the mandate of the Commission begins. The Commission took this path, although testimonies revealed that the Jerusalem District Police Commander had warned that the visit would raise tensions. In addition, in a television interview on the day after the visit, Ben Ami blamed Sharon's visit for the deterioration of the situation.

In addition, the Commission chose not to investigate any of the inciters in the Jewish community. Adalah submitted ample evidence consisting of television clips and newspaper articles documenting the actions of Jewish rioters all over the country at that time. Jewish rioters blocked streets, burned tires, threw stones at police officers, assaulted Arab drivers, destroyed Arab property, and publicly shouted "Death to Arabs." The Commission failed to investigate and ignored the incitement of Jewish citizens against Arab citizens.

Political Questions: Breach of Powers and Discrimination

During the testimonies of MK Dr. Bishara, MK Dehamshe and Sheikh Ra'ed Salah, the Commission asked the three Arab public representatives many questions regarding their political positions and agendas. Again, the Commission posed these questions only to Arab representatives. As the Commission has no authority to inquire into these matters and by singling out Arab representatives, the Commission breached its powers and acted in a discriminatory manner. For example:

Commission Member Professor Shamir questioned MK Dehamshe regarding the renovation of mosques in villages destroyed by Israeli armed forces in 1948 and claimed that it was a political step.
Justice Or questioned Dr. Bishara about an interview that he gave to Ha'aretz two years ago, in which Dr. Bishara stated that in Israel, there is a contradiction between being a proud Israeli and a proud Arab. Justice Or asked Dr. Bishara: "Are you a proud Arab?"
Professor Shamir asked Dr. Bishara if his party is the most nationalist among the Arab political parties. He also told Dr. Bishara that his political party undermines the UN Partition Plan of November 1947.
Professor Shamir asked Sheikh Ra'ed Salah whether the movement he heads supports the Oslo Accords.

Information from the GSS and Police Intelligence

The selective information provided by the GSS and/or police intelligence to the Commission is illegitimate and the Commission should not admit or rely on it as a basis for the issuance of warnings against the Arab public representatives.

Based on the questions posed by the Commission to the Arab public representatives, Adalah argued that the Commission clearly received its information from the GSS and/or police intelligence. It was also apparent, Adalah argued, from the Commission's inquiries and path of investigation, that no such information from these sources was provided to the Commission concerning any Jewish figures. The GSS, which works within the powers of the Prime Minister's Office, and the police are governmental agencies, required to act fairly and equitably, without prejudice. However, the circumstances suggest that they released information to the Commission in a racist manner, based solely on national identity. As such, the Commission cannot rely on these materials in its proceedings.

For all of these reasons, Adalah requested that the Commission rescind its warnings against MK Dr. Bishara, MK Dehamshe and Sheikh Ra'ed Salah.