Yes, heads must roll
Haaretz, October 10, 2006
By Moshe Negbi
It is not only the reserve soldiers who have difficulty considering the Winograd committee to be a reliable substitute for a state commission of inquiry. The judges sitting on the High Court of Justice have also showed their displeasure with the situation in which a person who is to be investigated appoints his own investigators. Justice Ayala Procaccia expressed doubts about whether a committee of inquiry could examine "so large a failure of the mechanism, such a colossal event," when the central object under investigation is the government that appointed the committee.
This criticism from the High Court is not surprising. Last month, Supreme Court justices bid farewell to Aharon Barak and swore allegiance to his heritage. A central element in this heritage was the determination to ensure that responsibility is taken by senior officials who have transgressed. This was reflected in the so-called Buzaglo test: as when Barak was attorney-general, and he insisted on bringing such senior people to trial even if this would lead to their being deposed; in his series of rulings as a justice, when he stated that such officials had to leave office if they were no longer able to show "honesty and integrity"; and when he stated, in the state commission of inquiry following the massacre at Sabra and Shatila, that public office-holders should be removed if they have failed in their judgment.
Barak didn't accept the claim that he lacked the right to make politicians' heads roll because that was the prerogative solely of the voters. "The judgment of the public," he declared, "is not a substitute for public law." But the political establishment ignores this ethical heritage. President Moshe Katsav has lost his ability to project honesty and integrity, but neither he nor the Knesset is taking the matter to its logical conclusion. And this, of course, is true also for the behavior of those who led us in the second Lebanon war.
Ehud Olmert's refusal to have a state commission of inquiry seems to be like a targeted assassination of the possibility that justices will serve on its panel of the caliber of Barak, Mishael Cheshin and Dorit Beinisch - who have proved that they are not afraid of demanding that responsibility be taken by senior officials. But this time it is clear that an existential price might have to be paid for trying to evade responsibility, and that taking responsibility is vital not only so that those responsible can be "punished," but also to prevent them from continuing to perpetrate further disaster.
This time, we are not merely witness to an unusually crude form of lack of accountability but, for the first time, a cynical attempt has been made to turn this weakness into an "ideology." We are told that indeed lessons must be learned, but there is no possibility of allowing "heads to roll" because this would prevent necessary rehabilitation. But is it indeed at all possible to learn lessons, and is there any chance of rehabilitation, if heads do not roll and if the option of failing once again is not ruled out?
And this brings us back to the Barak legacy. In the report by the state commission of inquiry into the Sabra and Shatila massacre, Barak explained that the political and military echelons must not be freed of having to "face up to public scrutiny of deeds and omissions that indicate a lack of efficacy ... or lack of appropriate attention ... or deeds that were done in haste, with negligence, with lack of wisdom and without trying to foresee their future effect."
How can personal responsibility be imposed? It is best, of course, for the person who has failed to resign. If he does not do so, the public should demand that of him. But the public's awareness of the necessity for taking personal responsibility has also been eroded. We could have realized this even before the disappointing appearances at the protest encampments of the Movement for Quality Government and the reservists. The fact that Ariel Sharon had been condemned by a state commission of inquiry for his failure during the first Lebanon war, and even the strengthening of the claim that Sharon had misled Menachem Begin, on the part of the courts, did not prevent the public from electing him prime minister twice.
If one cannot rely either on the leaders themselves or on the public, then there is no other recourse than a state commission of inquiry that will force personal responsibility to be taken. There are indeed those who feel that the remedy lies in educating the leaders and the public about taking personal responsibility. The problem is that education is a long, drawn-out process and we cannot permit ourselves to put our fates in the hands of faltering stewards until such a process is completed.
In addition, there is not necessarily a contradiction between educating people to take personal responsibility and imposing this responsibility through a state commission. On the contrary: Only persistent efforts to force people to take personal responsibility by a legal body will make it possible to grasp that it is insufferable that in a well-ordered democracy, those responsible for fatal failures continue to serve as our leaders, and that we have an inherent need to free ourselves of them.
The writer is the legal commentator of Israel Radio and a senior lecturer at the Hebrew University of Jerusalem.
