Al-Ahram Weekly – 7 March 2002
Israel’s former Prime Minister Ehud Barak and his security minister, Shlomo Ben-Ami, were warned last week by a panel of judges that they are suspected of having acted illegally during its investigations into events at the start of the Intifada.
The Or Commission sent both men letters of warning, advising them to obtain legal counsel and prepare for further investigation. Nine of the country’s top police officers and three Israeli-Arab politicians also received letters. The inquiry has the power to recommend criminal prosecutions against anyone it warns.
The high number of warnings — a total of 14 — surprised most legal experts.
Justice Theodor Or has spent the past year examining events that took place during the first days of October 2000, which led to 13 Palestinian citizens being shot dead and the injury of hundreds more by the country’s police force during protests in the northern Galilee region. The demonstrations were staged in a show of support for their ethnic kin in the occupied territories and to protest at five decades of discrimination inside Israel.
Evidence presented to the commission has shown that, despite the demonstrators being unarmed, the police used rubber bullets and live ammunition from the outset. An anti-terror squad of snipers was also deployed in two towns in Galilee, Nazareth and Umm Al-Fahm, where a total of six people died. Some testimonies, including those by police officers, hinted at a shoot- to-kill policy.
The conflicting versions of events presented by Barak, Ben-Ami and the police command have almost certainly persuaded the commission that some or all of them lied.
The Arab politicians receiving warnings included Azmi Bishara of the National Democratic Assembly, a Member of Knesset who is currently on trial for sedition — after he was stripped of his parliamentary immunity — over speeches he made in Israel and Syria.
The two others were from the Islamic Movement: MK Abdel-Malik Dehamshe and Sheikh Raed Salah, who leads the militant northern wing of the party. All three are being investigated by the commission on suspicion that they incited the demonstrations that led to the deaths.
The decision to pursue the Arab political leadership was expected. Barak’s government, which established the commission in November 2000, charged it with examining the chain of events that occurred in October including “the conduct of inciters and organisers.”
The Adalah Legal Centre, which represents the families of the victims, objected at the time that language used in the commission’s mandate implied — before the investigation had begun — that there had been incitement.
The centre observed that all previous commissions of inquiry had limited the scope of their conclusions to judgments about the executive arm of the state rather than of the public and its representatives.
The centre is objecting to the warnings that the commission gave to the three Arab politicians, arguing that they go beyond the powers of the commission.
“The nearest comparison is with the Shamgar commission, which looked into Yitzhak Rabin’s assassination,” said Marwan Dalal, a lawyer with Adalah.
“Shamgar investigated the Shin Bet security service for failing to prevent the killing and did not turn its attention to the leaders of the settlers who had created an atmosphere of incitement beforehand,” he said.
“The Arab politicians were asked about their political agendas at the first hearings. No other politicians faced these kind of questions. For example, Bishara was asked questions like ‘Aren’t you the most nationalist politician among the Israeli Arabs?’ What does this have to do with the deaths in October 2000?”
The Or Commission will now change tack. During its first phase of investigations, which finished last month, 350 witnesses were questioned by the three judges on the panel.
In the second phase, it is expected that the proceedings will look more like a series of criminal trials, with each warned individual facing cross-examination, possibly by hostile lawyers. Although many embarrassing revelations have already emerged, this phase is likely to dig deeper.
Barak, in particular, should face tougher questioning. At his hearing last November, Barak lavishly praised the police and directed his venom at a tiny “extremist” minority among Israel’s one million Palestinian citizens who, he said, were bent on “deliberately fomenting violence.”
On other points, Barak refused to go into details of “specific past events,” as he termed them. This exasperated the inquiry and led one judge, Shimon Shamir, to point out: “We are a commission of past inquiry.” Justice Or finally cut short Barak’s testimony after less than a full day.
Hanging over the inquiry is the legal shadow of the Kahan Commission, which investigated the 1982 massacre of Palestinian refugees in the Lebanese camps of Sabra and Shatilla. Kahan found that the defence minister at the time, current Israeli Prime Minister Ariel Sharon, was indirectly responsible for the killing spree because he allowed gangs of Christian Phalangists to enter the camps.
Or could similarly find Barak and Ben-Ami accountable for failing to prevent all or some of the 13 deaths.
Regarding Barak, the commission found five faults. The commission said, “In his capacity as prime minister, he was not sufficiently aware of the changes taking place in the Arab community in Israel during his time in office. These changes created a substantial possibility that riots would break out on a large scale.”
The letter highlighted the former prime minister’s repeated refusal to meet the Arab leadership after his election in 1999 and also during the first days of the clashes with the police.
Barak was also faulted for a decision that he took on 2 October 2000: “He ordered the police to use every means to keep the roads open, with special reference to the Wadi Ara road, thus ignoring the many casualties, including fatalities, that could have, and should have, been anticipated as a result of the order.”
Adalah lawyers are likely to concentrate on this last point. They have already brought to Justice Or’s attention a radio interview Barak gave on the morning before the majority of deaths occurred in the Galilee.
In it the former prime minister said that he had met the police commanders the night before and had given them the “green light” to take whatever action was necessary to preserve the rule of law. Precisely what was said at the meeting is still unclear.
Ben-Ami, who was the minister in charge of the police at the same time as being foreign minister, was also warned by the inquiry over five faults.
They included that “he did not do enough to make sure the police would be ready to handle widespread riots,” and that “he was not sufficiently aware of the dangers involved in the use of rubber-coated bullets in dispersing riots, and did not take the necessary measures to prevent or limit their use during the riots.”
When Ben-Ami was questioned by Or, he pointed the finger of blame at his two most senior police officers: the national police chief, Yehuda Wilk, and the commander of the northern force, Alik Ron.
Ben-Ami said that they had kept him in the dark about how they intended to handle protests and that Wilk had refused to obey when he ordered that the police be disarmed after it became clear live ammunition was being used against Israeli citizens.
Wilk and Ron, both now retired, are suspected of 11 failures each. Ron was harshly criticised both for deciding to bring in the snipers to Umm al-Fahm and for then directing their fire. The inquiry said: “Seven people were wounded and one killed as result.”
Justice Or added that Ron’s instructions to marksmen to fire at stone-throwers were “without justification and in violation of the rules governing the use of live fire by the police.”
The blunt language used in detailing Ron’s failures suggests that the inquiry is likely to take a harsh line on him in its final report.
The commission, however, does not have the power to prosecute or punish; it can only make recommendations to the government. All previous recommendations by commissions of inquiry concerning individuals have been implemented.
But the wider subject of Justice Or’s inquiry — ‘the relations between the Jewish majority and Arab minority in Israel’ — touches on an extremely raw nerve, particularly as it has been conducted during the military crackdown on the Palestinian uprising in the West Bank and Gaza.
In a sign of how polarised Israeli society has become, the current security minister, Uzi Landau, said the day after the warnings were issued that he did not believe the government was obliged to abide by Justice Or’s final recommendations. Landau has repeatedly supported the police during the inquiry.