As calls for an independent Israeli investigation of the events of Operation Cast Lead grow stronger, IDI's Dr. Dana Blander looks at the history of Israel's investigative committees.
On 15 September 2009, the United Nations published the conclusions of a special committee headed by Justice Richard Goldstone, which had been appointed to investigate events that took place during "Operation Cast Lead" (December 2008–January 2009). Following its release and subsequent discussion in the UN, voices emerged from within Israel calling for the establishment of an Israeli committee to investigate the injury and deaths of Palestinian civilians during the operation.
This article will assess the likelihood of the formation of a government investigation commission, or of a committee headed by a retired judge (heretofore, I will use the term "investigation committee" to describe both types) in light of the history of investigation committees in Israel. The article will not address the normative question of whether it is desirable to set up an investigation committee to probe this issue, but instead will evaluate political factors that are likely to influence the government's decision on the matter.
I maintain that public opinion and the opposition parties constitute the most important factor in the government's decision to form an investigation committee, while international pressure will exert a certain degree of pressure, but will not be decisive. This article will demonstrate that in the past, committees to investigate military issues were set up in response to the wars that the Israeli people considered failures, and in order to blame those responsible. Therefore, I believe that for political reasons, the formation of an investigation committee is unlikely; "Operation Cast Lead" has been etched in Israeli consciousness as a success, and most of the pressure being applied is international. Nevertheless, there is a legal incentive that could affect the decision in this particular case—the possibility that army officers and decision makers will be prosecuted at the International Criminal Court in The Hague as a result of the report's findings.
Circumstances Surrounding Past Investigation Committees
According to the Investigation Committees Law 5729–1968, the government is vested with the authority to set up government investigation commissions. In addition, according to the State Comptroller Law of 5718–1958 (Paragraph 14b), the Knesset State Control Committee is authorized to order the establishment of a government commission to investigate an issue addressed in the State Comptroller's report. To date, 18 government investigation commissions have been formed: 14 by the government and four at the initiative of the State Control Committee. Based on the Government Law of 5761–2001 (Paragraph 8a), several government committees of inquiry headed by a retired judge have been set up and granted authority similar to that of government investigation commissions. One example was the Winograd Committee (2006), which investigated the Second Lebanon War.
According to Paragraph 1 of the Investigation Committees Law of 5729 (1968), the government is authorized to set up a committee to investigate "a matter of vital importance to the public at a given time, which requires clarification." This indicates that a committee is generally set up to address current issues (or historical issues of current importance) that are subject to controversy with the aim of clarifying facts and easing public dispute. In practice, the circumstances in which the government is authorized to set up an investigation committee are broadly interpreted, and government investigation commissions have been set up to probe a range of events and issues: wars, policy setting, bureaucratic failures, historical events, and events that caused widespread turmoil (see Table 1). However, in the case of the operation in Gaza, in defining the area of investigation (which could be designated, for instance, "the Committee to Investigate Claims Raised in the Goldstone Report regarding Harm to Palestinian Citizens during 'Operation Cast Lead'"), theoretically the government could decide to set up a government investigation commission.
Table 1: Government Investigation Commissions—Areas of Investigation*
|Area of Investigation||Name of Committee and Year of Formation|
|Wars and military incidents (military-civilian relations)||The Agranat Committee examined events that preceded the Yom Kippur War: the information available at the time, the preparations and the decisions by military and civilian officials, and the IDF’s readiness for war (1973).
The Cohen Committee investigated all the facts and factors related to the atrocities perpetrated by a Lebanese military unit against the civilian population at the Sabra and Shatila Camps (1982).
|Events related to the Arab-Jewish conflict||
The Zussman Committee conducted an inquiry of the circumstances of the fire at the Al-Aqsa Mosque (1969).
The Shamgar Committee investigated the massacre at the Tomb of the Patriarchs in Hevron on Purim 5754 (Feb. 25, 1994).The Or Committee carried out an investigation of the clashes between security forces and Israeli civilians in October 2000 (2000).
The Kanat Committee inspected prison conditions (1979).
The Netanyahu Committee evaluated the operation and efficiency of the healthcare system (1988).
|Bureaucratic failures and activities by government-run organizations||
The Vitkon Committee inspected the management of oilfields in the Sinai Peninsula (1971).
The Baisky Committee investigated bank shares regulation (1985)**.
The Landau Committee probed GSS interrogation methods to combat enemy sabotage activity (1987).
The Shamgar Committee conducted an investigation of the assassination of PM Yitzchak Rabin z”l on Nov. 4, 1995.The Matza Commission investigated the vested authorities’ handling of Gush Katif and North Samaria evacuees (2008)**.
|Historical events||The Bechor Committee conducted an inquiry into the allegations that Avraham Stavsky and Zvi Rosenblatt, or one of the two, were involved in the assassination of Haim Arlozoroff (1983).
The Kadmi Committee investigated the disappearance of the children of Yemen.
|Events that caused turmoil||
The Etzioni Committee investigated rumors of monetary payments to fix games in the National Basketball League (1971).
* Some of the committees listed may belong to more than one category. (For instance, the Rabin assassination caused public turmoil, but the investigation committee focused on the actions of the GSS Security Unit for Senior Public Officials.)
** Set up by the State Control Committee.
Court intervention is rare
The range of events that led to calls for the formation of investigation committees (in some cases, the government refrained from setting up such committees) indicates that the formation of investigation committees is, first and foremost, a political act, i.e., a move decided by a political entity (the government), and like other political acts, it is influenced by factors such as public opinion in Israel, opposition parties in the Knesset, world wide public opinion, and demands by international organizations. By law, the government is authorized, but not required, to set up an investigation committee; it has been granted such broad leeway that even the courts avoid interfering in this decision. According to judicial rulings, questions such as whether to establish an investigation committee, which type of committee to form, and which matters to investigate are all left to the government's discretion. The courts intervene only in exceptional cases that rarely come before the bench.
Committees to Investigate Wars and Military Incidents
As seen in Table 1, two government investigation commissions dealt with wars and war-related incidents: the Agranat Committee inquired into the events leading up to the Yom Kippur War (1973), and the Cohen Committee investigated the massacre at Sabra and Shatila (1982). The Winograd Committee (2006), the government committee of inquiry set up "to clarify the preparation and conduct of the political ranks and the security apparatus regarding the various aspects of the battle in the North that began on July 12, 2006," also belongs in this category.
All three of these committees addressed the failures of the military apparatuses that were etched in the Israeli consciousness. Before the respective committees were formed and in the aftermath of their conclusions, strident public protests demanded the identification of those responsible. The Cohen Committee, for instance, did not receive a broad mandate to investigate the First Lebanon War, but only the Sabra and Shatila massacre. Nevertheless, the protest that led to its formation, which reached its peak with "a demonstration of 400,000" at Malchei Yisrael Square in September 1982, was directed against the War in Lebanon in general; the massacre at Sabra and Shatila was merely the catalyst. The demand for an investigation committee following the massacre even drew the support of the opposition in the Knesset and of then President Yitzchak Navon, as world opinion demanded a clarification of the extent of Israel's responsibility for the massacre. The government's decision to set up the Winograd Committee was also influenced by the pressure of public opinion and the media, despite government efforts to avoid this and its satisfaction with the army's internal investigation.
Past experience suggests that in Israel, committees to investigate military affairs are formed when public opinion maintains that the military failed and demands accountability from those responsible for the failure. The opposition parties and international pressure can have an impact as well, but the main consideration of the government, which is not eager to establish an investigation committee, is internal politics—appeasing the Israeli public and rebuilding its faith in the political system. However, the question now is whether in the current political climate, it stands to reason that an investigation committee will be formed to assess the IDF's conduct during "Operation Cast Lead" and civilian casualties. The answer hinges on the government's evaluation of two factors: the level of internal pressure (public opinion and the opposition parties), and the level of external pressure (world opinion and demands by international organizations) (see Table 2).
Table 2: Evaluation of internal pressure (public opinion and the opposition parties in the Knesset) and external pressure (world public opinion and international organizations) to set up an investigation committee following military actions and wars
|Committee and War||Internal Pressure||External Pressure|
|Agranat (1973) – Yom Kippur War||+++|
|Cohen (1982) – Sabra and Shatila Massacre||+++||++|
|Winograd (2006) – Lebanon War||+++|
|? (2009) – Gaza War (following Goldstone Report)||+||+++|
(+) Moderate pressure (++) Ordinary pressure (+++) Heavy pressure
Will a committee be set up to investigate "Operation Cast Lead" and the claims lodged in the Goldstone Report?
The factors most likely to influence the government's decision of whether to set up a government investigation commission are internal pressure from Israeli public opinion and the opposition parties in the Knesset, and external pressure from worldwide public opinion and international institutions.
- Israeli Public Opinion: From a standpoint of public opinion, the government has not faced substantial pressure to form an investigation committee. Most of the Jewish population in Israel supported the operation and considers it a success. Even following the publication of the Goldstone Report, which includes harsh allegations against Israel, there has been no large-scale public protest demanding an investigation of the claims. Political and media discourse is primarily occupied with the question of how to cope with the report's international ramifications, not the claims themselves.
- Opposition Parties in the Knesset: Likewise, the opposition parties are not exerting much pressure since the largest opposition party is Kadima, which was the leading government partner behind the operation. In the right-wing camp as well, the largest Knesset bloc, there is no demand for an inquiry into the events of the war.
In principle, the Knesset, through the State Control Committee, can call for the establishment of a government investigation commission, but unlike cases in which the Knesset formed such a committee in spite of the government's resolute opposition (e.g., the Baisky Committee), there does not appear to be any difference of opinion between the Knesset and the government. Furthermore, the State Control Committee requires a report by the State Comptroller to initiate the formation of a committee. The State Comptroller has not yet dealt with these issues, and will probably choose not to get involved in an issue as sensitive as the IDF's conduct in time of war.
International Pressure and Demands by International Organizations: External pressure to form an investigation committee stems from international censure of Israel and the legal option of prosecuting officers and political figures for their involvement in "Operation Cast Lead." In the past, international condemnation and demands for fact-checking have influenced the decision to set up investigation committees (for example, this type of pressure led to the establishment of the Zussman Committee to investigate the fire at the Al-Aqsa Mosque ,which was the first committee set up according to the Investigation Committees Law; this type of pressure also influenced the decision to set up the Cohen Committee, following the Sabra and Shatila Massacre ), but it has never been the decisive factor. However, in the past, there was never any genuine threat to try IDF officers and decision makers, whereas today this is a possibility that the Israeli government must take into account. The government might opt to form an investigation committee for the sole purpose of rebuffing international censure. Another consideration in favor of an internal Israeli investigation is to prevent the issue from being addressed in foreign and international courts. Nevertheless, it remains unclear how international organizations would relate to the conclusions of such a committee and what its legal status would be.
Past experience demonstrates that the main factor in the government's decision to set up an investigation committee is Israeli public opinion. If so, political expediencies will not lead to the establishment of a government investigation commission or a committee of inquiry. Nonetheless, the international legal threat, the attempt to placate world opinion and to prevent the implementation of legal measures against Israel may eventually lead to the formation of an independent investigation committee by the government.
Both the initiation and the termination of an investigation committee are based on political actions and considerations: the government decides whether to set up an investigation committee and public opinion influences the government's willingness to make such a move, while the conclusions of the committee and its recommendations could have political ramifications. Past experience teaches us that the government is reluctant to form an investigation committee, unless it is unavoidable due, in general, to domestic public opinion. In the case of the Goldstone Report, public pressure from within is almost nonexistent, but the international factor and the legal threat have become powerful variables in the equation. The government's decision whether or not to investigate conduct during "Operation Cast Lead" will determine whether investigative committees can be formed to look into government and military conduct even in absence of internal pressure and following events that the public considers largely 'successful'.
Dr. Dana Blander is an IDI researcher focusing on democracy in the 21st century. She is also a member of the IDI website staff.