On 23 May 1960, Ben-Gurion announced to the Knesset that Adolf Eichmann had been captured and brought to Israel and would soon be put on trial for his part in implementing the “Final Solution”.[5]
This was the most notorious person to be tried in the courts of the State of Israel. To the great credit of the judicial system in Israel, the case was conducted within the highest standards of justice. Not only did Eichmann have full legal representation, it was even paid for by the State of Israel.[6] His lawyer, Dr. Robert Servatius, was given full access to all the documents and was able to cross-examine all the prosecution witnesses who appeared in the Jerusalem court room.
During the course of one of the sessions, the prosecution wanted to submit in evidence affidavits from two members of the SS and a person from the German Foreign Ministry, who were not in Israel. Dr. Servatius objected and said he was entitled to cross-examine these people. In answer the Presiding Judge ruled, “The right of examining a living witness whose declaration the opposing side wishes to submit, is a fundamental right.”[7]
After Eichmann had been found guilty of the most heinous and obnoxious crimes resulting in the murder of 6,000,000 Jews, he was enabled to appeal his conviction in the Israel Supreme Court where five judges reviewed the ruling of the lower court.
This is the way justice must be done, even with the most heinous of war criminals.
In a case heard in London, Lord Widgery, the then Lord Chief Justice said, “Nothing is clearer today than that a breach of the rules of natural justice is said to occur if a party to proceedings and more especially the defendant in a criminal case, is not given a reasonable chance to present his case. It is so elementary and so basic it hardly needs to be said.”[8]
In the United States, the emphasis is on the question “Is it constitutional?” The Constitution and its Amendments are the pillars of American life and society. Two of the constitutional amendments deal with the right to a fair trial. According to the sixth amendment, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him.” According to the fourteenth amendment, “... nor shall any State deprive any person of life, liberty or property, without due process of law ....”[9]
An individual can also on occasion be harmed as the result of a Government Commission of Inquiry. The lawmakers realised this and thus incorporated into the Israel law on Commissions of Inquiry passed in 1968 the following paragraph 15:
a) Where it appears to a commission of inquiry that a particular person is likely to be harmed by the inquiry or by its results, the chairman of the commission shall notify that person in what respect he is likely to be harmed and shall place at his disposal, in such matter as he may think fit, such evidence relevant to that potential harm as is in the possession of the commission....
b) A person notified under subsection (a) may attend before the commission either himself or through an advocate, make statements and examine witnesses (even if they have already testified before the committee), and the commission may permit him to present evidence, all in relation to the said potential harm.[10]
[One of the Ordinances passed in 1921, during the period of the British Mandate for Palestine, dealt with Commissions of Inquiry and paragraph 6 of this Ordinance[11] is similar to the above paragraph of the 1968 Israeli law.]
This paragraph 15 of the 1968 Israel law was put fully into practice during the proceedings of the Kahan Commission who were investigating the massacres at Sabra and Shatilla. In June 1982 the “Peace for Galilee War” began when Israel entered Lebanon. A few months later the Lebanese Phalangists massacred inhabitants at the refugee camps at Sabra and Shatilla. A week after this, the Israeli Left organised a demonstration against the Government, in which they claimed that 400,000 people participated.[12] The Israeli Government then set up a Commission of Inquiry under the President of the Israel Supreme Court, Judge Yitzchak Kahan, to investigate the massacre.
During the course of the proceedings, nine people including the Prime Minister - Menachem Begin, the Minister of Defense - Ariel Sharon, and the Chief of Staff were given warnings that they were likely to be harmed by the Commission’s investigation or its findings.[13] Details of how they might be harmed were published by the Government Press Office.[14] All these nine people appeared to give evidence in their own defence.[15] In the case of six of these people, their lawyers also submitted summaries to the Commission.[16]
Regarding the scope of a defence in a commission of inquiry, the Israeli High Court of Justice has held that a person whose conduct is under investigation by such a commission is entitled to the same degree of defence as an accused has in a court of law.[17] In another case the Court stated that the use of cross-examination is the most effective tool in enabling litigants to arrive at the truth.[18]
In the 1960s Britain with its very long Parliamentary and judicial history established a “Royal Commission” to study the working of “Tribunals of Inquiry”.[Just a note on this word “Royal”. Britain is a monarchy with a long and impressive royal tradition. Many things in Britain are thus prefixed with the word “Royal”.]
This Royal Commission laid down cardinal principles, which are similar to Israeli practice, for the protection of the individual. These were stated in a lecture given at the Hebrew University of Jerusalem in December 1966 by the Chairman of the Commission, Lord Justice of Appeal, Sir Cyril Salmon. Included, is the right of any person called as a witness to be informed of any allegations which are made against him and the substance of the evidence in support of these allegations, having the opportunity to cross-examine witnesses, and the right to call any material witness to support his case.[19]
According to the paragraph in both the Mandatory Ordinance and the Israeli law, only a person who was still alive could utilise this paragraph of the act to clear his name. The relatives of a person who had meanwhile died had no recourse. [This is similar to the ruling in English law - and also the laws of other countries - which says that a dead person cannot in general be libeled or slandered.[20] ] However the Knesset obviously came to realise the injustice of this. So in 1979, they passed an amendment to this paragraph of the law, which would also confer this right of defense on the relatives of a person who had since died.
When this amendment came up before the Knesset for its First Reading the Minister of Justice, Shmuel Tamir said, “It is proposed to permit a proper defence for the name and honour of a person who has died. Accordingly, where the commission of inquiry sees that this is in the interests of justice, they will notify a relative of the deceased, and that relative will be able to study the material which is in the possession of the commission, to appear before the commission, to be heard and to cross-examine witnesses.”[21] Similar sentiments were expressed in the preamble to this proposed law.[22]
This amendment was passed on 26 March 1979 and reads:
The following shall be added at the end of subsection (a) [of the 1968 law quoted above]: If that first-mentioned person has died or the notification cannot be delivered to him for any other reason, the commission of inquiry may, if it deems it necessary in the interests of justice, decide that the notification shall be delivered to any such relative of his as it may prescribe, and the chairman of the commission shall place the evidence at the disposal of such relative.[23]
There are many other situations in life when a person can be harmed and justice always demands the right to present a defence. An example arose in early 1990, when the then Prime Minister Yitzchak Shamir wanted to dismiss Ezer Weizman from his position as a government minister for an alleged offense. At the time Chaim Herzog was President of the State of Israel, and he writes of the proposed dismissal in his autobiography, “But Shamir had given Weizman no chance to defend himself. It seemed to me that the fairest thing to do would be to place the accusations and proof in the hands of an independent legal personality or body before whom Weizman could appear to deny any allegations or defend himself against them. ... as he was accusing him of a very serious offence, I said, it should have been done in a proper legal manner.”[24]
By custom both the outgoing and the incoming Presidents address the Knesset. In his farewell speech in the Knesset after completing his second term as President, Chaim Herzog again spoke of a person’s “right to be judged in a court of law and not in the media.”[25]
Another fundamental principle of justice is that a person judging a court case (and the Israel High Court has ruled that a similar thing can be said regarding a member of a Commission of Inquiry[26] ) must not decide on the guilt of the accused until he has heard all the evidence. Any deviation from this principle could lead to a retrial under a different judge.
The Israel Supreme Court has, on a number occasions, accepted an appeal by an accused to have a fresh trial under a different judge. One of the reasons for a successful appeal was that the judge had come to an opinion before hearing all the evidence. There is the case of Fuad Masallem, where the judge had given her decision before the defence had presented his summation speech.[27]
Another reason for disqualification was that the judge had expressed a negative opinion of the defendant. This occurred in the case of Eliyahu Ronen, where in an entirely different case the judge had expressed such a negative opinion.[28]
In addition the Israel Supreme Court has on occasions recommended transferring the trial to a different judge. The reason being that the first judge had done something which might be interpreted as being against the interests of the accused. An example is the case of Ze’ev Sharabi, where the prosecutor had used the telephone in the judge’s chambers and the judge had travelled in the prosecutor’s car immediately after the end of the hearing.[29]
An English case, which in 1999 came before the Judicial Committee of the House of Lords, the highest court in England, was that of the Chilean dictator Pinochet.[30] After the Law Lords had decided by a 3 to 2 majority that he could be extradited, it was pointed out that one of the judges who had voted with the majority had ties with Amnesty International, even though he was in no way involved with Amnesty’s campaign for Pinochet’s extradition. The House of Lords immediately set aside their decision and a new trial was held with different judges.[31]
[The reasoning behind allowing Pinochet’s extradition was that since he was no longer a head of state, he could not claim sovereign immunity. In discussing this decision “Time” magazine concluded that, at least theoretically, Iraq could demand the extradition of former President George Bush on charges of bombing and killing hundreds of civilians in the Gulf War, and that Argentina could indict former British Prime Minister Margaret Thatcher for sinking a warship in the Faukland Islands War. The magazine concludes: “For any tyrant, the best protection from ... justice being visited upon ... [him] is to continue to tyrannize.”[32] ]
The United States Appeals Court has also, on many occasions, ordered a retrial when something concerning the original trial went against the interests of the accused. An example is the case of Eddie Antar. (Incidentally, there is an “Israeli connection” to the case! Whilst waiting to be brought to trial Eddie Antar fled to Israel.[33] He ultimately returned to the U.S.A. to stand trial.) During the trial, the judge made one stray remark which showed that he had decided on Antar’s guilt before hearing all the evidence. On the basis of this remark, the appeal court ordered a new trial.[34]
Why have I included all the above laws and cases concerning the fundamental rights of justice in this work?
The reason is that the family of Dr. Baruch Goldstein have to this day never been given these fundamental rights of justice!
Although the findings of the Commission were very harmful to the good name Dr. Baruch Goldstein had during his lifetime and also harmful to his family, no opportunity whatsoever was given to his family, his lawyer, or anyone else to present a defense to the Shamgar Commission. They were not given access to documents, nor were they able to cross-examine witnesses.
This was despite the amendment to paragraph 15 of the “Commissions of Inquiry” law (quoted above), which gives these rights to the relatives of a deceased person who could be harmed by its findings.
In addition to the above, if we study the minutes of the proceedings of the Shamgar Commission, we can see that three of its five members - Judge Abed el-Rahman Zouabi,[35] Lieutenant General (res.) Moshe Levy,[36] and Professor Menachem Ya'ari[37] - were describing Baruch Goldstein as a “murderer” even before they had heard all the evidence!
This is especially so in the case of Judge Zouabi, who used this term for Baruch Goldstein from the very first day of the hearings, and during the course of the hearings used it at least seventeen times in just the open sessions. This is also especially serious in view of the fact that Judge Zouabi is a professional judge of the State of Israel.
It is a cardinal principle of law that a person is innocent until proved guilty. If a majority of the Commission had already decided that Baruch Goldstein was a murderer before hearing all of the evidence, then the objectivity of the section of the Report dealing with Baruch Goldstein is surely put in doubt!
None of the cases quoted above on the disqualification of a judge, even remotely approaches that of the proceedings of the Shamgar Commission. It was not just a stray remark by one of the members of the Shamgar Commission. Baruch Goldstein was called a “murderer” no fewer than 17 times by Judge Zouabi, 6 times by Moshe Levi and twice by Menachem Ya’ari before they had heard all the evidence!
These serious deficiencies in the operation of the Shamgar Commission did not pass without reaction.
The repeated use of the term “murderer” for Baruch Goldstein before all the evidence had been heard, resulted in Yoel Lerner petitioning the High Court on 30 March 1994. He also claimed that using this term when questioning witnesses could influence their testimony.[38] The petition was heard on 5 May. Although the Court dismissed the petition, they said that Lerner could make representations to the Shamgar Commission.[39]
Lerner accordingly wrote a letter to Judge Shamgar, the chairman of this Commission, in which he proposed that the ideal way to correct the pre-judging by members of the Commission would be to disqualify the Commission and appoint a new one with different people who would act with neutrality. Failing that, the members of the present Commission should make a solemn declaration that despite the outward appearance of having pre-conceived opinions about Baruch Goldstein, they did not in fact have such ideas.[40] Judge Shamgar summarily dismissed these proposals![41]
A few days before the publication of the Shamgar Report, the High Court heard a petition submitted by Yoel Lerner and Miryam Goldstein, the widow of Baruch, demanding that the Commission’s work be disqualified. Among the reasons they put forward was that under paragraph 15 of the Commissions of Inquiry Law letters of warning must be sent out by the Commission to anyone likely to be harmed by its findings and the reputation of Baruch Goldstein could be so harmed.[42]
This petition was heard on Friday 24 June. There are no minutes kept by the court of such petitions to the High Court and so any reports must be gleaned from the newspapers. The report which appeared in the “Jerusalem Post” included: “Since Goldstein’s good name will almost certainly be hurt by the report, the petition said, his widow should have been allowed to try and present a defense. At least one justice seemed sympathetic to this argument. ‘We’re talking about a very serious stigma,’ said Justice Zvi Tal. Even at this late date, he asked the state’s representative, Nili Arad, wouldn’t it be appropriate to delay the report for a few days to enable Miryam Goldstein to try to defend her husband?”[43] Gidi Frishtik who was the lawyer in this petition has personally confirmed to me the accuracy of the “Jerusalem Post” report. He also informed me that after hearing the evidence the judges retired for two hours before giving their ruling.[44]
In their ruling, the High Court accepted the State Prosecutor Nili Arad’s argument that the petition was premature, since until the Shamgar Commission published its Report, no one could know whether Baruch Goldstein’s reputation would be damaged.[45]
The learned judges are completely correct. Even judges of the High Court are not privy to a Report of a Government Commission which has yet to be published. Thus they could not know whether Baruch Goldstein would be harmed by the Report.
The fault lies with the members of the Shamgar Commission. With the greatest respect to them, in my humble opinion they erred in this matter. According to paragraph 15 of the Commissions of Inquiry Law and the subsequent amendment, before publication of their Report, they were obliged to inform any person who was likely to be harmed by their findings, if these findings were to be included in the Report. This includes informing the relative of such a person who had since died. All this the Shamgar Commission failed to do!
Another answer given by the High Court in their ruling was that Lerner and Miryam Goldstein waited to the last moment to submit their petition.[46] It is however difficult to understand this ruling of the Court. The above law quite clearly and unambiguously states that the Chairman of a Commission of Inquiry must inform a person (or the relative of a deceased person) that they are likely to be harmed. There is nothing in this law saying that a person who could potentially be harmed by a Report must request a hearing. All this is in fact very logical. In general, only the members of a Commission of Inquiry hear all the witnesses and see all the associated documents, especially when much of the evidence is heard behind closed doors. Thus they and only they can come to an assessment as who could be harmed by their Report. Hence they are the people to send out the warnings.
The bottom line in all this, is that time has shown that Dr. Baruch Goldstein’s reputation was very grossly harmed, and thus Miryam Goldstein should have been given the opportunity to defend her husband.
During the period of the hearings of the Shamgar Commission, Judge Zouabi was involved in another court case.[47] It arose after he gave an interview to the newspaper “Ma’ariv” which appeared in this newspaper in the edition of 8 April, under the heading “Zouabi does his laundry by himself” and was accompanied by numerous photographs of him in different poses.[48] During this interview he is reported by this paper to have said: “When I came to the [Shamgar] Commission, I knew that the cruel side in the territories was the settlers.”[49]
As a result of this statement, Dina Ben-Har, a school-teacher from Kiryat Arba, wrote to Judge Shamgar expressing her profound shock that a judge whose duty was to be impartial was judging the Jewish settlers before hearing all the evidence. She considered that after making such a statement, he should have resigned from the Commission or should have been made to resign.[50]
Judge Shamgar gave a one-line reply to Dina Ben-Har’s letter.[51] It was limited to acknowledging the receipt of her letter. Nothing else!
However, two Tel Aviv lawyers took stronger and more decisive action against Judge Zouabi’s comments. They petitioned the High Court to have him removed from the Shamgar Commission on the grounds that he had formed an opinion before hearing the evidence.
The case was heard by three High Court Judges. In their judgment they said that “the accepted judicial ethic says a judge should refrain from giving interviews to the press in general.”[52]
Judge Zouabi said that he could not remember making such a statement[53] and the petitioners could not prove it, since the reporter, in accordance with professional ethics, would not provide an affidavit.[54] One of the judges commented that if indeed Judge Zouabi had made such a comment, one would have to regret that it had been made and dissociate oneself from it, especially as it had been made by a judge of the State of Israel![55]
The judges did not want to decide whether in general the degree of objectiveness of a person sitting on a Commission of Inquiry should be higher or lower than that of a judge in a Court. However in this particular case, they ruled that since a judge was involved, his objectivity should be like that of a judge in a Court of Law.[56]
The Court ruled that even if Judge Zouabi had made this statement it would not be enough to disqualify him from sitting on this Commission, since “in general, a chance remark is not enough” to show that a judge had already formed an opinion before hearing all the evidence.[57]
Be that as it may, calling a person a “murderer” no fewer than 17 times, before hearing all the evidence, cannot be classed as “a chance remark”!