Phalange Justice

 In September of 1982, an unspeakable horror took place in the Palestinian refugee camps of Sabra and Shatila in Beirut.

About eight hundred people – men, women and children – were slaughtered by Christian Phalange units – in revenge for the assassination of Lebanon's president-elect, Bashir Jemayel.

The massacre provoked great outcries and harsh protests in Israel and abroad.

Blaming fingers were pointed at the IDF, which sat in Beirut and controlled the area at the time.

Following heavy public pressure, the Government of Israel resolved to establish a commission of inquiry in accordance with the Commissions of Inquiry Law.

The Cabinet charged the commission as follows:

"The matter which will be subjected to inquiry is: all the facts and factors connected with the atrocity carried out by a unit of the Lebanese Forces against the civilian population in the Shatilla and Sabra camps"

In the wake of this resolution, the President of the Supreme Court, by virtue of the authority vested in him under the aforementioned law, appointed a commission of inquiry comprised as follows:

– Yitzhak Kahan, President of the Supreme Court – chairman;
– Aharon Barak , Justice of the Supreme Court;
– Yona Efrat , Major General (Res.).

The commission determined that the horrors were perpetrated by the Christian Phalangists.

The commission ruled out the possibility that Israel or persons acting on Israel’s behalf – civilian or military – bore any direct responsibility for the massacre.

However, the commission did find some senior IDF officers – as well as several Israeli Ministers – bear indirect personal responsibility (responsibility by way of omission), which led to the decommissioning and dismissal of several of these men – including Ariel Sharon, who served as Minister of Defense during these events.

The Book “Phalange Justice” overviews and analyzes the work of the Kahan Commission.

The bottom Line:

Justice Aharon Barak's participation in the Kahan Commission involved a conflict of interest and grave partiality.
As a result of the bias shown by Justice Barak, the commission's work was totally disrupted and the individuals who were harmed by it suffered a miscarriage of justice and serious wrong.
As a consequence of Justice Barak's conflict of interest and partiality, and of course in the wake of the obstruction, perversion of justice and wrongdoing, the commission's report, conclusions and recommendations are totally and completely invalid.

Indeed, Barak was only a member of the commission, but its chairman, Yitzhak Kahan, was not young and not well, while the third member, Yona Efrat, was a military man with no legal education. Barak, therefore, was the dominant figure in the panel.

And here it is note worthy, that among the staff investigators who were appointed to collect data necessary for the investigation, were two of Barak’s colleagues and acquaintances from his days as the Attorney General himself:

Ms. Dorit Beinish, Deputy State Attorney, and Ms. Edna Arbel , Senior Assistant to the District Attorney (who were seconded to the commission by the Attorney General Yitzhak Zamir).

The book proves – literally in a mathematical manner – that the person who carries increased and conclusive responsibility for the terrible omission on the Israeli side, is the Attorney General of Israel at the time – Prof. Yitzhak Zamir (later to become a Supreme Court Justice).

It was no other than Prof. Zamir himself who defined the duties of the Attorney General – as “the Government’s internal brake”, as well as “watch dog”, whose job is not only to bark, but also – if it is required – to bite.

Yet, at the crucial and fateful moment – during the Cabinet meeting in which the very same Prof. Zamir’s legal and professional opinion was required – he neither barked nor bit. He was fish-like in his silence.

Had Prof. Zamir did the little he was expected and required to do as a legal advisor during that fateful meeting – matters would not have unfolded as they have.

Ironiclly enough, Prof. Zamir is a Professor of Law, specializing in Administrative Law.

If only Yizthak Zamir had pointed out the legal ramifications of letting the Phalangists enter the refugee camps – if he had only done that bit – the terrible events that followed would never have taken place.

But the Cabinet was not fortunate enough to be enlightened by Prof. Zamir. 
During that fateful hour, Yitzhak Zamir bent over to fiddle with his shoelaces.

The Attorney General, Prof. Yitzhak Zamir, failed at his job fearfully and shamefully – according to the responsibility criteria he himself set.

Indeed, even during the course of the commission’s deliberations, blaming fingers were pointed at Prof. Zamir and the overall responsibility inherent in his position as the Attorney General.

Moshe Ben Ze’ev, himself a former Attorney General, said at the time:

“The warning lights that failed to go on during the government meeting regarding the Phalangists’ entry into the refugee camps have been and will be discussed at length. Now, without straying from the confines imposed by the rules of sub-judice which still apply in this matter, we can ask why, in fact, does Minister Zippori seek shelter under the wing of the Attorney General. Does he not mean to say: “with us sat a man of law and public morals, and even his warning lights did not go on. Why then should you complain of simple ministers, whose sole considerations were the military and political ramifications of the decisions taken?”
…We have come to the point where the Attorney General for the Government sits in a meeting, hears warning from the IDF’s Chief of Staff regarding Phalangists whose eyes are filled with bloodlust and thirst for vengeance, listens to the concerns expressed by Minister David Levi, and does not point out to the Ministers that ignoring all these things may have a smidgen of the same carelessness or lack of concern, the same omissions that Israeli Law frowns upon. If at any time in the future he will have to make decisions or recommendations within his jurisdiction, will he not be disturbed by the fact that he himself was present during such an occasion, and like so many others was indifferent when action was called for?…”

Is a clearer and more explicit accusation really necessary ?

And again we must remember: this piercing accusation comes not from some legal ignoramus, but from someone who himself was an Attorney General.

When the Attorney General heard the remarks of the Chief of Staff that the IDF can give the Phalangists orders, his “judicial ear” should have been the first to absorb the meaning of what he heard.

As they say in these parts: “That is why they pay him”

When the Attorney General heard that the IDF can give the Phalangists orders, he should have – because of that fact alone – apprised the commanders of the IDF and the ministers that the legal responsibility for the acts of the Phalangists “reverts” to them – to the ministers and the commanders.

If the IDF commanders and the Cabinet ministers had been cautioned by the Attorney General on this point of principle, we may assume that they would have taken fright at the decision – just so – and been diligent in maintaining more effective command and control over the Phalangists, or would have canceled the decision to let them into the camps.

But the Attorney General – during that crucial moment – was silent.

And the Attorney General – who was silent and did not apprise anyone regarding the above mentioned principle of legal responsibility – remained silent when he heard a speech about knives being sharpened and a warning about the danger of a massacre.

And he remained silent even when he heard, during that crucial meeting, a remark from the Chief of Staff – that the Phalangists would go in the camps "with their own methods".  

Yet, the commission chose not to deal with the Attorney General's share of responsibility for what happened.

Even the very fact of Prof. Zamir’s existence and his presence in that Cabinet meeting – even this important fact has been concealed from the public:

The commission in its report made a point of noting the various office-holders who took part in that critical meeting – but the Attorney General is missing from that list.

Regarding the warning from Minister David Levy – the commission was diligent to point out in its report that: “No reaction was forthcoming from those present at the meeting to this part of Deputy Prime Minister D. Levy's remarks”.

The commission made efforts to find out who was present in the meeting room while Mr. Levy sound his warning, and then mentioned their names in its report, but concealed the very fact that the Attorney General, Prof. Yitzhak Zamir, was one of them.   

The commission was well aware that if it were to “touch” the Attorney General in any way, it would have been compelled not only to impose responsibility on him, along with the others, but also to provide an excuse for not imposing on him – as the book explains in great detail – the entire responsibility.

The commission had to lay full responsibility on the Attorney General according to the functional criteria which the commission itself set.

But the commission neatly snipped the Attorney General out from the picture and extricated him from any responsibility.

And with the Attorney General out of the picture – his responsibility need not be discussed. How very simple !

And who among the members of the commission had a personal interest in “smuggling” out the Attorney General and rescuing him from this entanglement ?

There is no doubt: the clearest interest lies with the dominant member of the commission, and the person who guided its every step – Juctice Aharon Barak.

The decades-long, close personal relationship between Aharon Barak and Yitzhak Zamir is a “common knowledge”. Just so.

This relationship goes back to their days in the Hebrew University Law School.

“We have gone a long way together since our youth in the Law Faculty of the Jerusalem Hebrew University, where we both began our academic careers” – testified President Barak on the occasion of Juctice Zamir’s retirement from the Supreme Court.

Interestingly enough, during the early days in the Law School Barak had a lower academic status then Zamir:

Years later, when Barak entered the Supreme Court, Zamir remarked emotionally how 15 years earlier, when he – Aharon Barak – was informed that his advancement in the Law School was blocked, Barak replied: “I do not wish for the title of Professor. I am willing to be a teaching aide, providing I am allowed to do research and teach” (experts in the mysteries of the mind will no doubt discern that by placing that obstacle in his path, Barak was imbued with that great "engine" that pushed him all the way through to his current place and status).

Another well-known fact is that Barak acted with all diligence to appoint Zamir as a Supreme Court Justice (although the President of the Supreme Court at the time – Justice Shamgar – was not enthused with the appointment).

The strong ties between Barak and Zamir also encompass a close relationship between the two families – including a joint period spent abroad for study.

In view of this close relationship – can one even conceive of the possibility that Justice Barak would sit in judgment on Prof. Zamir and decide his fate ?!

In the light of the relations described above, is it possible that Justice Barak would see Prof. Zamir as being in a state of danger and not throw him a “life jacket” ?!

We have already seen how this problem was solved: someone made sure to throw the attorney general a rope and pull him out of danger, safe and sound.

Doubtlessly: if you’re Aharon Barak’s friend – you’re set.

The details which are greatly expounded upon in the book reveal a clear and unequivocal picture: The commission refrained – purposefully and out of partiality – from referring in any manner to Prof. Zamir, while ignoring what was legally and actually required.

The arguments brought forth in the book clearly show that due to his status and position, the Attorney General is under increased responsibility – perhaps even sole one – for the legitimacy of the decisions made by the Government.

Prof. Zamir’s silence regarding the decision to let the Phalangists into the refugee camps – his silence at that critical point – failed the government, and prevented it from giving the IDF immediate and appropriate instructions.

The commission’s abstention from dealing with the Attorney General in any form, cries havoc and indicates in and of itself, that the commission was well aware that any reference to the Attorney General will compel it to lay severe liability at his doorstep.

“Snipping” the Attorney General out from the picture created a “black hole” in the factual and legal reality, and totally disrupted the investigative process and the commission’s conclusions.

But Prof. Zamir’s sad role in this story is not yet over:

As mentioned above, the massacre was followed by a great outcry in Israel and abroad, and demonstrations were held, demanding that a State Commission will be formed.

The Israeli government convened for a special session in order to decide how to deal with this matter – with echoes from a nearby demonstration reverberating in the background.

The perplexed government was hard-pressed to decide how to form an investigative commission. The riotous demonstration that took place nearby only made the confusion worse.

The enormity of the confusion is apparent from the fact that the government’s appeal to the President of the Supreme Court regarding the formation of an “examination committee” – which is not a State Commission – was rejected by the president, in the claim that he has appeals on his desk – to order formation of a State Commission in accordance with the Commissions of Inquiry Law.

Therefore, there is no doubt that a government session regarding the formation of a commission of inquiry is inundated with various legal quandaries regarding the matter.

In such a state – is there any doubt that the perplexed government was yearning for a guiding hand to show it the way and enlighten it as to the legal aspects of the issue ?

Well, why was the government’s legal advisor not heard from? Were was he? Asleep again?

No, Yithak Zamir was not asleep.

This time – he simply did not show up for the session.

And why did he not show up for the session? Force Majeur? Some illness, perhaps?

Not really.

The reason is achingly simple:

Yithak Zamir, so it was published, did not show up for the session since at that very same time – hold on to your hats – he was in an Arab language lesson!!!

A lost and perplexed government is in session, unable to decide in a crucial legal matter, and the man who is supposed to advise and guide the government – is amusing himself with Shu Hada and Min Hada.

Is this the action of a reasonable and decent legal advisor ?

A reasonable and decent legal advisor does not abandon the government – in any way and for any reason – during such a crisis.

In such a state – Yithak Zamir did not fail in his duty. He abused it !

But as we have said before: if you are Aharon Barak’s friend – you can rest easy. You are immune.

Barak’s conflict of interest with regard to Zamir was not the only conflict of interest in this miserable affair:
As the book explains, Aharon Barak was practically “swamped” by a multitude of such conflicts – including with regard to the Prime Minister of the time – Menahem Begin.

But Barak’s blatant conflict of interest with regard to Zamir disrupted the proceedings to the very foundations, and turned the entire process into what the Supreme Court itself terms in such cases: A rigged game.

And when the game is rigged, it is self-evident that the Kahan Report – including its conclusions and recommendations – is null, void, and inherently invalid.

As a point of interest:
Journalist Tom Segev (“Ha’aretz”), who is a historian as well, presented the book – with all its accusations – to Barak and Zamir for response.

Barak and Zamir both refused to respond, justifying their refusal with the following argument:

“at the present juncture – any reaction will be given a political interpretation”

How many years must go by before the “present juncture” is past and the long-anticipated response is received?

Is it actually possible that Barak and Zamir’s refusal to respond to such harsh accusations stems from the fact that they have no response? Let the reader be the judge!

Yet, over the last few years, the Sabra and Shatila massacre has returned to the headlines:
Various seekers of justice, Belgian and others, claim that justice has not yet been dealt to some of those that the Kahan Commission pronounced responsible – including Ariel Sharon, Refael Eitan, and others.

Can these seekers of justice be persuaded that the person bearing the primary and overall responsibility for the horrible omission is a man by the name of Yitzhak Zamir?

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