Adalah's Official Position Regarding the Or Commission of Inquiry Report: Despite Many Reservations, the Report is an Important Document and its Recommendations Should be Implemented Immediately
Following a thorough review and study of the 831-page report of the Commission of Inquiry, headed by Justice Theodor Or, Adalah has many reservations regarding numerous issues raised. In particular, Adalah is deeply concerned about the Commission's lack of conclusive recommendations regarding the killings, one of the principal issues under investigation by the Commission. Despite this, it is Adalah's opinion that the Or Commission report is an important official document, and its recommendations should be implemented immediately. Furthermore, in Adalah's view, the Commission's working procedures that included the gathering of information, the questioning witnesses, the hearing of testimonies, and the publication of the report, functioned, as such, to raise public awareness regarding the rights of the Arab minority in Israel.
As the legal representative of Arab elected officials who received warnings from the Commission, and the Committee of the Victims' Families, Adalah presented the Commission with a vast number of testimonies from Arab public figures and academic experts, as well as professional opinions, articles, and additional physical and documentary evidence. This large quantity of information related to the circumstances of the killings, discrimination against Arab citizens of Israel, the police treatment of the Arab minority, racism, and land problems, particularly those of planning and building, among other issues.
Adalah positively notes the following issues raised in the report:
The Commission of Inquiry adopted the position of the Arab public figures and other professionals concerning the negative treatment by the police of the Arab minority in Israel. Regarding this issue, the report states that the police must thoroughly alter the way they treat Arab citizens, who they often view with hostility. The Commission noted "the need for a reform of police systems with regard to the Arab sector. The police is not conceived as a service provider by the Arab population, but as a hostile element, serving a hostile government ... [It is] important to inculcate moderate and balanced norms of behavior among all ranks of police personnel with regard to the Arab sector. It is important to work to uproot prejudice, which exists even among officers who are experienced and admired. The police must learn to realize that the Arab sector in Israel is not the enemy and must not be treated as such."
The Commission of Inquiry determined that the use of rubber-coated bullets, live ammunition, and snipers to disperse demonstrators is illegal and violates open fire regulations.
The Commission of Inquiry did not adopt the police position that the shootings, which resulted in the killings and/or parts thereof, were justified.
The Commission of Inquiry determined that the police must renounce the culture of lying that is embedded within its ranks. The Commission of Inquiry's report is the first official legal document issued since 1948 that addresses the historical discrimination against Arab citizens of Israel.
Referring to the issue of discrimination, the Commission determined that: "the issue has been neglected for many years, and demanded that immediate, medium-term, and long-term action be taken ... focused on giving true equality to the country's Arab citizens ... In this context, the state must initiate, develop, and operate programs emphasizing budgets that will close the gaps in education, housing, industrial development, employment, and services. Special attention should be paid to the living conditions and hardships of Bedouin."
In addition, the Commission adopted Adalah's arguments regarding the issues of land use and planning, and determined that the principle of just land allocation be adopted as well as suitable planning initiated to prevent illegal building caused by a lack of existing town planning that makes it difficult to obtain permits. The report notes that: "in relating to the Arab sector, the land issue holds great significance. Echoing over 100 years of accumulated struggle, it is difficult to ignore the emotional dimension that accompanies it. Thus, the nationalist context does not reduce the duty of the state to relate to its Arab citizens in accordance with just and suitable [land] division. The Arab sector has legitimate needs that stem, among other things, from a natural increase [in population]. The state must allocate land [to the Arab citizens of Israel] in accordance with fair principles, similar to other sectors."
The Commission of Inquiry did not take a stand on the issue of granting collective rights to the Arab minority in Israel, yet it did determine that "the role of the state in this issue does not include material issues alone; the authorities must find ways to enable Arab citizens to express their culture and identity in a dignified fashion within the public sphere." Despite this positive attitude, Adalah is of the opinion that the Commission should have added that these expressions of cultural identity must be afforded equal respect.
Adalah's critique of the report relates to the following issues:
The Commission of Inquiry rejected Adalah's argument that the relevant date for the investigation of the truth should have begun on 28 September 2000, the day of Ariel Sharon's visit to al-Haram al-Sharif. Instead, the Commission determined that the relevant date is 1 October 2000. This determination, however, is inconsistent with the Commission's position regarding the relevant dates of inquiry as related to the Arab public representatives, who received warnings: The Commission related to their political statements allegedly made between 1998-2000.
The report provides instructions as to the opening of criminal investigations into the killings, however, it was the Commission's duty to come to direct conclusions regarding the circumstances of the deaths of the 13 young Arab men. During its three years of work, the Commission did not make enough of an effort in this regard. In most of the locations of the killings, the Commission succeeded in narrowing the number of police officers involved to three-five individuals and listing their names, yet, it failed to afford sufficient attention to positively determining the direct circumstances of the killings. Due to this, the Commission failed to provide an especially essential answer to the victims' families.
While the Commission did not make any recommendations regarding the Arab public representatives who were warned, its conclusions raise factual and legal questions. The Commission determined that it did not arrive at any recommendations since these individuals do not hold any official public positions. This determination strengthens Adalah's legal argument, raised repeatedly throughout the proceedings that the role of commissions of inquiry is to specifically investigate the executive branch - individuals who hold official positions, those who are decision-makers and those who implement official decisions. Thus, from the beginning, the Commission should not have issued warning letters to the Arab public representatives. In addition, the Commission's investigation of the Arab representatives centered on their political positions; this is not the role of an official commission of inquiry. It should be noted that the Commission did not investigate "Jewish inciters" who hold official positions, while it did investigate the Arab representatives who do not hold official positions. It is Adalah's opinion that blaming elected Arab leaders, as well as the High Follow-up Committee for the Arab Citizens in Israel, could increase racism against the Arab national minority in Israel.
The Commission describes the actions of the police as "an inappropriate reaction to unprecedented riots." Describing these actions solely as a "reaction," ignores the evidence. This evidence proves that the violent police conduct and the use of lethal means that led to the killings on 1 and 2 October 2000, are the causes of the resulting escalation.
The Commission did not make any recommendations concerning Ehud Barak, despite its determination that as Prime Minister, he "was not aware of or sufficiently attentive to the processes occurring in Israel's Arab society, which created during his tenure a real fear of the outbreak of widespread rioting ... It was further proven that in the first two days of the events, Mr. Barak took insufficient action to prevent the use of deadly force by the police or to limit it." It is Adalah's position that these conclusions should have led to operative recommendations by the Commission regarding Mr. Barak. Further, the Commission was provided with convincing evidence regarding the nighttime meeting at Mr. Barak's home on 1 October 2000, during which he backed the police and ordered the opening all roads by any means necessary. In an interview on Reshet Bet radio on the morning of 2 October 2000, Mr. Barak affirmed this order and praised the police. On the same day, most of the killings occurred. Despite this clear evidence, the Commission determined that it was not proven that Mr. Barak gave the instruction, prior to 2 October 2000, to open traffic arteries using any means necessary.
There is a large gap between the Commission's conclusions and recommendations regarding the individuals who received warnings. For example, despite the Commission's harsh criticism of former Minister of Internal Security Shlomo Ben Ami, as to the use of lethal force by the police, it only recommended that "Mr. Ben Ami not be appointed in the future to a ministerial position in this ministry." Thus, according to this recommendation, Mr. Ben Ami may be appointed to any other top official position. As to Alik Ron, the Commission found that he was responsible for "live fire by sharpshooters [snipers] ... that this firing was unjustified, and resulted in injuries to at least seven people and the death of one of them." The Commission recommended that: "in the future he not fulfill any command or administrative position in the area of public security." Thus, Alik Ron, as well, may be appointed as a minister or to another high-ranking post in any area other than public security. The Commission determined that Benzi Sau, who served as the commander of the Northern District of the Border Police and commander of the Wadi 'Ara region in which three young men were killed, was directly responsible "for the unjustified opening of fire by sharpshooters [snipers] on stone throwers at the Umm al-Fahem junction" on 2 October 2000. The Commission recommended that Benzi Sau not be promoted in rank or position for four years. Thus, he may retain his position within the police ranks; in any case, Benzi Sau was promoted last year and there is in no need for any additional promotion within the near future. (In 2001, Adalah submitted a petition to the Supreme Court against his promotion. The Supreme Court rejected the petition on the grounds that the Commission of Inquiry had not yet completed its work.)
The Commission did not criticize the extreme neglect of Mahash (the Ministry of Justice Police Investigation Unit) regarding its failure to immediately investigate the killings of the 13 young men and the injuring of hundreds of others.
Adalah will publish a thorough analysis of the Commission's report with specific references to all the issues it raises.
