Prof. Paul Eidelberg and Atty. Howard Grief
The American Legislative Model
No event in 1998 aroused greater world curiosity and fixation than the exposure of the sexual escapades of President Clinton with Monica Lewinsky. The “affair” became the target of a criminal investigation by the Independent Counsel, retired Judge Kenneth Starr. The investigation was followed by an impeachment inquiry of the Judiciary Committee of the U.S. House of Representatives. As everyone knows, the House subsequently impeached the President on two charges, namely, perjury and obstruction of justice.
What most impresses serious observers is not the scandal itself and the sordid revelations it produced, but the very fact that the President of the United States, the most powerful elected office-holder in the world, is not immune to a criminal investigation and impeachment if he oversteps the bounds of law. This truly exemplifies the principle known as the Rule of Law, which subjects even the President of the United States to the highest standards of public conduct and provides for his due punishment for any infraction of those standards, including possible dismissal from office.
The investigation of Mr. Clinton’s felonious conduct was a direct result of the Watergate scandal during President Nixon’s second term of office. Watergate led to the passage of unique legislation called “The Special Prosecutor Act” of 1978, inserted into the “Ethics in Government Act” as Title VI.[1] This law provides for the appointment of an Independent Counsel to investigate and prosecute designated high-ranking Executive Branch officials who are suspected of felonious conduct and where there is presumed to exist an inherent conflict of interest facing the Attorney-General because of his friendship or connection with the official under suspicion, who serves in the same Administration as he does, thereby making it difficult for the Department of Justice to conduct an impartial investigation free from any taint of favoritism.
A three judge tribunal selects and appoints the Independent Counsel on the application of the Attorney-General. The high ranking officials who are governed by this admirable criminal legislation are the President of the United States, the Vice-President, Secretary of Defense and all other members of the Cabinet and their close aides and advisers, including those who serve the President in any major capacity in the Executive Branch of Government.
The American statutory model for investigating and prosecuting senior Administration officials for malfeasance or criminal behavior demonstrates the necessity for probity by the leaders of the country and serves as a shining example for the rest of the world to emulate. Nowhere is this legislative model more needed than in Israel. Despite all the talk of Israel’s proud record as a democracy that observes the Rule of Law, any careful examination of this record in the last decade will sadly prove that rampant lawlessness has in fact existed at the highest level of the Government of Israel. This lawlessness needs to be corrected and stamped out if Israel is to live up to its reputation and be considered a true democracy to the same degree as the United States, Britain and other Western countries.[2]
The Government of Israel, i.e., the Executive Branch (or Cabinet), enjoys unequaled power in the State of Israel, which power either exceeds or rivals that of other democracies. Nevertheless, the ministers of the Government, who are supposed to exercise that enormous power for the benefit of the people, are still subject, at least in theory, to the strictures of law as laid down in the Basic Law: The Government. Any infraction or abuse of that power will make those same ministers liable to punishment as prescribed in the law. In actual practice, however, their prosecution by the Attorney-General has been capricious or uneven, causing grave damage to the Rule of Law.
This article will explore notable instances of official malfeasance and criminal conduct and negligence that have taken place in Israel’s Government during a ten-year period which were not acted upon by the Attorney-General and thus underscore the need for Israel to have an Independent Counsel as exists in the United States.
The Weizman Scandal
In August 1986, a National Unity Government headed by Shimon Peres introduced and had passed in the Knesset an amendment to the Prevention of Terrorism Ordinance (section 4h) which banned all contacts and meetings with representatives of terrorist organizations. The Government was prompted to such action because leftist politicians, academics, journalists, and peace activists, by their frequent contacts and meetings with terrorist spokesmen, were harming Israel’s security by undermining the Government’s tough stance against terrorism. The new anti-contacts law provided for some natural exceptions pertaining to Government authorized contacts. It was in full force and effect until its repeal on January 19, 1993 under the Rabin Government.
While the ban on contacts and meetings was in force, the law was defied by prominent Labor Party figures such as Haim Ramon and Yossi Beilin and by Yossi Sarid and Dedi Zucker of the Citizens Rights Movement. (The CRM later formed part of the Meretz Party.) The link for these contacts was an Israeli Arab citizen, Dr. Ahmad Tibi, who became a close adviser to PLO Chairman Yasir Arafat. That an Israeli citizen could serve a declared enemy of the State of Israel, unhampered by the Attorney-General’s office, exemplifies the criminal negligence of Israel’s highest law-enforcement agency. In any event, it was Tibi who introduced members of the Labor Party, the CRM and the Peace Now Movement to PLO leaders.
During the National Unity Government formed after the November 1988 national elections, Ezer Weizman was appointed Science Minister. Without Cabinet authorization, Weizman engaged in contacts with the PLO in the belief that he could bring peace to the region.
In a meeting with the PLO representative in Switzerland, Nabil Ramlawi, arranged by Egyptian friends of Weizman, the latter advised the PLO on how to deal with the five point peace plan presented by U.S. Secretary of State James Baker, which had already been accepted by Israel with certain reservations. A full report of Weizman’s recommendations to the PLO was drawn up by Ramlawi and presented to Arafat. A copy of the report was acquired by the Mossad, which is responsible for gathering intelligence information outside the borders of Israel.
Ahmad Tibi flew to Tunis where PLO Headquarters were then located. He called Weizman from there and asked him to elaborate on what the PLO should do in regard to the Baker Plan. This conversation was taped by the General Security Services (GSS), sometimes referred to as the Shin Bet. In response to Tibi’s call, Weizman consulted the Vice-Premier, Shimon Peres, and then called Tibi back, advising the PLO to accept Baker’s plan but adding the PLO’s own reservations.
In late December 1989, Weizman accepted an invitation from the Soviet Academy of Sciences to travel to Russia where he had scheduled several meetings with PLO officials. It was then that Prime Minister Shamir acted. He caused a political storm by announcing at the end of a Cabinet meeting on December 31, 1989 that he was exercising his legal right to dismiss Weizman from the Cabinet because he had collaborated with Israel’s worst enemy. He had to act, he said, to avoid becoming a partner to Weizman’s crime, which he indicated was tantamount to treason, for giving assistance and information to the PLO. Indeed, Shamir was reported to have said previously, in a heated exchange with Yossi Sarid in the 1989 summer session of the Knesset, that those politicians who were meeting with the PLO were in fact traitors: “I see documents and from them I learn that there are those amongst us who talk about peace but practice treason. I know very well how to distinguish between opponents and traitors.”[3] Shamir feared that dignifying the PLO would lead to the establishment of a Palestinian state.
In defending himself against Shamir’s charge of collaboration with Israel’s worst enemy, Weizman said that both Vice-Premier Peres and Defense Minister Yitzhak Rabin had also been privy to all the contacts he had with the PLO which implied that if he were to be charged with breaking the law, so should they.
The Labor Party mounted a vigorous defense on behalf of Weizman, led by Peres who threatened to topple the National Unity Government and form his own government with the support of the religious parties, unless Shamir rescind the dismissal of Weizman. Rabin also supported Weizman’s staying in the Cabinet but admitted that there was a “case” against Weizman for engaging in unauthorized talks with the PLO which he also opposed in principle. He denied any complicity with what Weizman had done.
Peres’ threat worked. Shamir retracted his dismissal of Weizman only one hour before it was to take legal effect. The only “punishment” imposed on Weizman was his removal from the decision-making inner Cabinet forum.
Shamir’s capitulation to the Labor Party was an enormous blunder that caused the greatest harm possible to Israel and the Rule of Law. Weizman had defied the law and received only a slap on the wrist as punishment. He set the example for what Rabin and Peres would do just two and a half years later, when they began their own direct and secret contacts with the PLO at Oslo which also violated the same laws as Weizman had done. They obviously felt that they could ignore the law with equal impunity.
There should be no doubt in anyone’s mind that had Shamir upheld the existing law against Weizman in 1990 and strongly urged the Attorney-General to prosecute him to the full extent of the law based on the documentary evidence in his possession, Rabin and Peres would never have dared to enter into illegal “peace negotiations” with the PLO at Oslo in 1992-93. They would certainly have been deterred by the precedent of prosecution against their Cabinet colleague, who belonged to their own party, had such prosecution indeed taken place. This means there would never have been a Declaration of Principles, a Mutual Recognition Agreement or an Interim Agreement, signed with the PLO. Nor a Hebron Protocol and the recently concluded Wye River Memorandum.
No Israeli territory comprising Judea, Samaria, and Gaza would ever have been ceded to the PLO, which would have remained lodged in Tunis. The many terrorist attacks against Israelis originating planned from the PLO base of operations in Gaza after the IDF withdrew its forces from there would never have taken place. Weizman himself would never have been elected President of the State of Israel or even been allowed to submit his candidacy.
It is also ironic that all of the cascading events of the Oslo Peace Process, so strenuously opposed by Shamir after his retirement as Likud leader, could have been stopped dead in their tracks had he pressed the Attorney-General to indict Weizman for illegal contacts with Israel’s enemies, which contacts, according to the former Prime Minister’s own statements at the time, bordered on treason. Shamir even had the benefit of excellent advice from President Herzog who told him, when the crisis with Weizman first erupted, to launch an inquiry into the affair by appointing a senior legal personality who would examine all the evidence against Weizman and make the appropriate recommendations as to what should be done.
This was another way of saying that an Independent Counsel was needed who was not connected to the Government and who had no conflict of interest and was therefore able to conduct a proper investigation to uncover whatever crimes were committed by Weizman in accordance with the evidence and Rule of Law.
Shamir’s duty was clear, but he failed to act decisively as the circumstances demanded. As a result, Weizman’s self-confessed crimes were covered up and this cover-up led in time to the Oslo peace process with all its disastrous consequences for the State of Israel.
As a mitigating circumstance for Shamir, it should be noted that he and Justice Minister Dan Meridor did present their classified evidence against Weizman to the Attorney-General, Yosef Harish, who then had to make the important decision whether or not to prosecute Weizman. The question then arises as to why Harish did nothing, not even to order a more comprehensive investigation of the alleged crimes, let alone to bring indictments. That the Attorney-General should sit idle on evidence of this kind cannot but undermine the Rule of Law as well as public trust in the legal system. But this is exactly why an Independent Counsel is needed in Israel.
Harish did nothing even when Tzahi Hanegbi, then an ordinary Likud MK, and now the Minister of Justice, filed criminal charges against both Weizman and Peres at the National Police Headquarters in Jerusalem because they had both acted contrary to the Prevention of Terrorism Ordinance based on the documentary evidence he said he had. This too could have impelled a proper police investigation but the matter was not pursued.
The Weizman Scandal and non-prosecution of his self-admitted crimes provided the PLO with a certain legitimacy, which allowed contacts with the PLO to continue unhampered by the anti-contacts law of 1986. The law now took on the appearance of a dead letter by reason of its non-enforcement against those in the Executive Branch who had violated the law with impunity. Matters were made worse by the decision taken later by the Attorney-General to stop all further prosecutions of Israelis who met with PLO members, because it was (allegedly) no longer in the “public interest” to do so as provided under Section 62 of the Criminal Procedure Law. This gave the green light to Arabs living in eastern Jerusalem, such as Hanan Ashrawi, Faisal Husseini, and Ahmad Tibi, to openly defy this law and continue their illegal work as PLO agents and mouthpieces.
However, the worst consequence of such contemptuous defiance of the law had to await the coming to power of the Labor Party following the elections of June 23, 1992, when the illegal and disastrous Oslo Peace Process was born and which has led the country into the greatest mess it has ever known. That process to which we now turn is the second prominent case in the last decade illustrating the lack of respect for the Rule of Law in Israel in the Executive Branch of Government and why an Independent Counsel is urgently needed to prosecute illegal behavior where sufficient evidence exists to do so and there is a reasonable probability of a conviction.
The Illegal Oslo Peace Process
It may be said with certainty that the Oslo peace process was absolutely illegal from the very outset and that it never would have taken place had the Rule of Law been obeyed by the Executive Branch of Government. Once begun, the illegality of the peace process has continued to this very day even with a change of government.
There are several reasons for saying that the peace process began illegally. First, there is little doubt that the negotiations with the PLO began without Cabinet authorization before the repeal of the anti-contacts law on January 19, 1993 which automatically made these negotiations illegal.[4] This law was part of the Prevention of Terrorism Ordinance, and while it was in force, Israeli citizens or residents were barred from meeting with representatives or officials of a terrorist organization such as the PLO, whether in Israel or abroad, “without lawful authorization” -- the key words in the text of the law. These last three words meant that if a minister was duly authorized by the Cabinet he could hold meetings with members of a terrorist organization. It was the very fact that ministers Rabin and Peres were never authorized by a Cabinet decision to conduct the Oslo negotiations with the PLO that made the negotiations illegal under this particular law and exposed the ministers concerned to criminal punishment.
Second, the Cabinet only learned about the Oslo negotiations after they were finished and an agreement signed. The relevant dates were August 20, 1993 for the signing of the first agreement known as the Declaration of Principles (DOP) and August 26, 1993 for disclosing both the negotiations and the original agreement to a surprised Cabinet and Israeli public. The lack of Cabinet authorization for the negotiations made them illegal during the whole time they were taking place and the agreement that was the product of these illegal negotiations, viz. the Declaration of Principles was therefore also illegal on this ground alone.
Third, on the question of substance, it must be noted that the subject-matter of the DOP and all succeeding agreements with the PLO based upon it essentially involved the future ceding of territory comprising the Land of Israel to a foreign entity, namely the PLO. The purpose of these agreements, to cede territory to the PLO for peace, put them completely outside the bounds of Israel’s basic and criminal laws, because the lands ceded to the PLO were under the de facto sovereignty of the State of Israel.
As demonstrated in a 78-page article published in this Journal the ceding of that territory to the PLO actually violated fourteen laws and principles of law of the State of Israel.[5] Here mention will only be made of Section 11B of the Law and Administrative Ordinance, which is an amendment to the original law of 1948 enacted by the Knesset on June 27, 1967, about three weeks after Israel conquered Judea, Samaria, and Gaza. This law was designed specifically for enabling these territories of the Land of Israel to be annexed to the State of Israel by the simple expedience of issuing a Government order extending the law, jurisdiction, and administration of the State to any and all parts of those areas. Such an order was issued only once in the case of the eastern part of Jerusalem. Nevertheless, this law of Section 11B still remains in full force and effect for all other areas of Judea, Samaria, and Gaza which fall within the definition of the term “Eretz Israel” as used in Section 11B, and it is beyond the delegated power of the Government to cede this land.
Contrary to the purpose of this law, which is to bring the areas of Judea, Samaria, and Gaza into the State’s borders, the purpose of the Interim Agreement (1995), the Hebron Protocol (1997), and the Wye Memorandum (1998) is to prevent most of these areas from ever becoming part of the State of Israel. Nevertheless, no Attorney-General ever cautioned against the illegality of the Oslo peace process even though he was in the best position to do so during meetings of the Cabinet which he attended. The case might have been otherwise if Israel had an Independent Counsel whose office, unlike that of the Attorney-General, would not be enmeshed in political agendas.
The Labor-Shas Financial Relationship: 1989-1996
To further illustrate the rampant illegality that has existed in high government circles of the Executive Branch, which went uninvestigated and which cries out for the establishment of an Independent Counsel, mention must be made of the corrupt financial relationship which existed between the Labor and Shas parties between 1989 and 1996. This relationship, though exposed by the State Comptroller, was never legally addressed by the Ministry of Justice or resolved despite overwhelming evidence of wholesale corruption between these two parties. The result of this illegal relationship was to facilitate a changeover of political power from Likud to Labor in 1992 and then its consolidation until 1996.
On January 11, 1993 a special Report of the State Comptroller was published which detailed a cozy relationship between Shas and Labor based on illegal payments made in violation of the criminal laws and the Party Financing Law. The Report stated that a deal was made between the two parties on October 6, 1989 under which Shas agreed to back Labor in the Histadrut elections of that year in return for monthly consecutive payments of 110,000 NIS (about $55,000 in U.S. funds at the time) which were spread out over a three year period lasting significantly until the end of 1992, six months after the June 23 national elections.
These political payments by Labor to Shas continued despite a Supreme Court decision in February 1991 which barred any kind of payoffs or financial benefits between parties. By receiving illegal and secret payments, Shas in effect became a religious affiliate of the Labor Party. It was therefore not surprising that Shas agreed to join the Labor-Meretz Coalition Government in 1992 which helped to initiate the illegal Oslo peace process and at the same time brought Shas further financial rewards and political honors. This was done despite its false promise to its religious voters, most of whom are nationalists, never to join a proposed Labor Government.
The Shas commitment to Labor, born out of an illegal and corrupt deal, allowed Rabin to set up a government with a Jewish majority, without the need to co-opt the Arab parties. Rabin wanted to give a sense of legitimacy to his Government, since his anti-religious and anti-nationalistic bloc of parties, together with the Arab parties, had not won a majority of the popular vote, though he did win a majority of the Knesset seats thanks to the Shas switch-over. However, that legitimacy was more apparent than real. Had Shas voters been consulted democratically, most would have voted against their party’s entry into the Rabin Government.
The enormity of the corruption that was revealed in the State Comptroller’s Report was stunning. It amounted to outright bribery, public fraud, illegal enticement and solicitation that was on a scale unprecedented in Israeli political history. It is no exaggeration to say that Labor actually bought the 1992 elections, as the State Comptroller was reported to have remarked in an interview after publication of the Report.
A great outcry greeted the release of the Comptroller’s Report, but the pain and upset lasted only a day or so and caused no political crisis or demands for a new election. Nor were any legal steps ever taken to prosecute those responsible in the Labor Party for bribing and illegally enticing Shas to join Labor in forming a government. The ones who concluded the illegal agreement on behalf of Labor were reported to be Michael Harish, then secretary-general of the party, and David Liba’i, who became the Minister of Justice in the new Government. The only sanction was the fine imposed by the Comptroller on the Shas Party for accepting the illegal funds from Labor.
What should have happened but did not was an investigation and prosecution by the Attorney-General of the perpetrators of the bribery and fraud. He, however, chose to do nothing for reasons never explained. Everything was swept under the rug, buried and soon forgotten, as if the bribery and fraud never happened. Here then was a perfect case for the intervention of an Independent Counsel, where actual evidence existed of political graft and corruption at the highest political level. The Labor Party was allowed to enjoy the fruits of ill-begotten power which was then used to foist on an unsuspecting nation an illegal peace process with a terrorist organization that produced the Israel-PLO agreements. The Wye River Memorandum of October 23, 1998 merely implements those illegal agreements.[6]
“Knowing and Not Telling”:
The Assassination of Yitzhak Rabin
Perhaps the most insidious failing of the Attorney-General’s office will be found in its failure to investigate GSS agent Avishai Raviv’s role in the assassination of Prime Minister Yitzhak Rabin. The report of a commission of inquiry headed by former President of the Supreme Court Meir Shamgar indicates that Raviv engaged in various criminal acts, the most significant being incitement (of which, more in a moment). It seems, however, that the State’s Attorney prefers to indict and prosecute smaller fish, like Margolit Har-Shefi.
Thus, on September 27, 1998, Margolit Har-Shefi was sentenced to nine months in prison for not preventing Prime Minister Rabin’s assassination. The court ruled that Har-Shefi heard assassin Yigal Amir say he would kill Rabin, and she did nothing to prevent the crime.[7] Hebrew University Law Professor Eliav Schochetman summarizes the issue as follows:
“Among the central questions that arose in the wake of the murder of ... Rabin were: Could something have been done to prevent the murder? Was there someone who knew of Yigal Amir’s murder plans who did not report this to the proper authorities, as required by law? The State Prosecutor decided to charge Margolit Har-Shefi with a violation of paragraph 262 of the Criminal Code of 1977 (Failure to Prevent a Crime), and the court decided to convict her, yet this conviction is not enough to easily answer the above question, since the convicted party never admitted to knowing of the planned murder, and she also was not convicted of any other violation that would signal her criminal involvement in the murder of the Prime Minister.
“According to the legal tradition in Israel, no one has ever been convicted of failure to prevent a crime without admitting to the fact, and Margolit Har-Shefi’s conviction was based solely on assessments. Another weak point in the legal judgment was that the heads of the General Security Services had in their hands the very same information as did the guilty party regarding the statements of Yigal Amir, and on the basis of such information they were not able to predict in advance the events of the murder. How was Margolit Har-Shefi supposed to know what the heads of the GSS were not able to know, even though they had the same information in hand?!
“Despite the conviction of Margolit Har-Shefi, the heavens cry out over the failure to bring to trial the GSS agent Avishai Raviv, who specifically admitted that Yigal Amir told him of his intention to kill the Prime Minister and, according to him, he took these words seriously. If Raviv knew about this in advance, it is likely that this matter was known to his handlers in the GSS. The Attorney-General should order a police investigation and the opening of legal proceedings against everyone who knew of the plans for the murder and failed to do what was required to prevent it. Even if this should involve a secret body such as the GSS, the principles of the rule of law require the undertaking of such an investigation and the initiation of all the necessary legal steps in order that the truth in this matter will come to light.”[8]
MK Chanan Porat (NRP), Chairman of the Knesset Law Committee, goes further. He expressed astonishment that Raviv, “who did not only ‘hear’ of the assassin's plans, as Har-Shefi was convicted of, but actually incited him [Yigal Amir] to commit the crime, and was thus an active partner in the murder [has not been indicted for this offense by the Attorney General] and brought to trial!”[9]
The Shamgar Commission Report -- parts of which remain secret -- indicates that GSS agent Raviv acted as a provocateur whose task was to defame right-wing critics of Rabin’s Oslo policy, public support for which had drastically declined because of a horrible upsurge in Arab terrorism. The allegation that Raviv incited Yigal Amir to murder Rabin is obviously a matter that should be investigated by the Attorney-General. Nevertheless, three years had to elapse, and various members of the Knesset had to complain, before the State’s Attorney decided to indict Raviv -- but not for incitement of Yigal Amir. It seems that Raviv will be prosecuted for the crime of “knowing and not telling,” and that he will receive immunity for possible related offenses which are to be examined, moreover, behind closed doors!
Since the GSS is under the direct authority of the Prime Minister, full disclosure of Raviv’s nefarious activities might implicate Rabin himself in Raviv’s efforts to incite and thereby denigrate right-wing critics of the Oslo land-for-peace policy. If so, Rabin may have been an unwitting instrument of his own assassination! Full disclosure of Raviv’s trial might not only shatter Rabin’s exalted image, in which so many have invested their reputations and political careers, but such a trial might very well collapse Israel’s entire system of government.
Recommendations
The foregoing examples of illegality and criminal conduct and negligence in the Executive Branch and in the political life of Israel provide the best reasons why an Independent Counsel should be established in this country. These examples also confirm the limitations of both the Attorney-General and State Comptroller in regard to the very matters which would be handled by the Independent Counsel.
As to the Attorney-General it is evident that he faces a conflict of interest if he attempts to investigate members of the Cabinet whom he also serves as legal adviser. Moreover he may fear the political consequences of his own investigation and therefore will prefer not to begin one.
Apropos of the preceding, mention should be made of another public inquiry headed by Justice Shamgar in the aftermath of the Bar-On affair in February 1997. The inquiry concerned the selection procedures and powers of the Attorney-General. The resulting report concluded that the Attorney-General has the right to make decisions independent of the wishes of the Government. This is laudable in theory, but illusory in practice, because of the very nature of the Attorney-General’s functions and the position he occupies in the running of the Government. He is the most authoritative and senior interpreter of the law with respect to every Government authority in the State. He is also its senior prosecutor with the last word on whether to launch a prosecution against any government official or other individual. As part of his normal functions, he participates in Cabinet meetings on a regular basis which makes him intimately involved in all government affairs and discussions. This also creates close links or associations with Cabinet ministers which tend to break down the barrier of his supposed independence. If, as suggested by the Shamgar Commission, he were to absent himself from Cabinet meetings to avoid any special relationship or intimacy, he would then not be able to properly fulfill his principle role as the senior Government adviser and interpreter of the law, especially where his opinion is required concerning the legality of proposed Government actions as they arise or are discussed in the Cabinet. His presence is therefore always needed at the Cabinet table, which means that he can never act in the independent way recommended by the Shamgar Commission.
Turning to the role of the State Comptroller, he is entrusted with a number of important tasks, but prosecuting crime in the Executive Branch is not one of them. As shown by experience, the State Comptroller often will be the first to uncover the evidence of a crime but cannot take any judicial steps to enforce the law or punish the wrongdoers apart from imposing fines. He can only refer what he suspects to be acts of criminal or illegal behavior committed by those in power to the attention of the Attorney-General for further action and possible indictment. But as seen in the specific cases involving the Labor and Shas parties as well as that of Ezer Weizman in 1990, the Attorney-General did not act at all to the great detriment of the Rule of Law.
To solve the problem of the State Comptroller’s impotence and the Attorney-General’s inaction and glaring failures, the American legislative model of appointing an Independent Counsel vested with full powers for conducting a criminal investigation should be emulated. That will effectuate the Rule of Law and ensure that Government ministers and officials will act lawfully. We recommend, therefore, that the Knesset pass legislation allowing for the Court appointment of a Special Counsel, whenever the circumstances justify it, upon the application of either the Attorney-General or the State Comptroller or concerned citizens who can petition the Supreme Court if neither of these two officials decide to act.
Moreover, to ensure the effectiveness of the Independent Counsel and, at the same time, to promote public confidence in the Government, the broad procedural immunity granted to Government Ministers who also sit in the Knesset and who become the target of an investigation and indictment for malfeasance should be abolished.[10]
At present they are protected from standing trial unless a Knesset majority consents. Knesset members and Cabinet ministers should have no inherent procedural protection from prosecution for alleged crimes.[11] This will not harm the substantive immunity which all Knesset members presently enjoy for their parliamentary work.
Finally, the broad discretion given to the Attorney-General not to prosecute those persons who have allegedly committed crimes because it is felt not to be in the “public interest” should also be abolished or severely restricted in light of the abuse to which this legal provision has given rise in recent years. This will also end the pernicious habit of ignoring illegal behavior on the part of Israeli citizens who have no special authorization for consorting with the leaders of terrorist organizations and enemy states on the pretext that it is in the interest of peace and therefore not against the “public interest.” Israeli Arabs have twice visited the President of Syria, Hafez Assad, and made strong statements in support of his hostile policies directed against Israel which have harmed the basic security interests of the State as well as Jewish national rights.[12]
If the foregoing recommendations are adopted, then Israel will truly become a society where the Rule of Law reigns, where justice is pursued and righteous conduct is widespread. This, after all, is the legacy Judaism bestowed upon mankind.
* * *
[1] The authors wish to thank Mr. Jacob C. Frenkel, Associate Independent Counsel, for the legisation and other materials related to the Independent Counsel. It should be noted that the office of a Special Prosecutor goes back to the nineteenth century. Where corruption was rampant in the Grant, Coolidge, Truman, and Nixon administrations, the Special Prosecutor was appointed by the President in an effort to prevent Congress itself from either conducting more extensive hearings or passing legislation calling for a special prosecutor. When a President appointed a special prosecutor he usually selected someone from the opposite party.
[2] Israel’s reputation as a “democracy” stems from its having universal suffrage and periodic multiparty elections; and of course the country is strikingly democratic when contrasted with its autocratic Arab neighbors. But as the first named author has often observed, Israel is not a representative democracy since, unlike citizens in 75 countries having democratic elections for the lower (or only) house of the legislature, Israelis vote not for individual candidates in district elections, but for fixed party lists in one nationwide or at-large election. See Paul Eidelberg, “Making Votes Count: They Don’t in Israel!” Jerusalem Foundation Papers (Jerusalem: Foundation for Constitutional Democracy), No. 16, November 1998. Nevertheless, for present purposes, we adhere to the widespread belief (or prejudice) that Israel is an authentic democracy.
[3] Ma’ariv, August 1, 1989.
[4] Mahmoud Abbas (Abu Mazen) wrote a book about the peace process in which he states that the initial contacts with the Labor party began even before the Knesset elections of June 23, 1992 when Rabin sent Ephraim Sneh to meet with PLO leaders and that contacts were resumed shortly after Labor took power. We also learn from Yosef Ben Aharon who stayed briefly in his position as director-general of the Prime Minister’s Office immediately after Rabin became the new Prime Minister that the latter authorized two former generals, Shlomo Gazit and Arye Shalev, to meet with the PLO in October 1992 to discuss security issues. Moreover, a Norwegian TV documentary presented on Israel Television on October 10, 1993 claimed that the talks with the PLO at Oslo were already underway by December 1992.
[5] See Howard Grief, “A Petition to the Supreme Court of Israel Challenging the Legality of the Oslo Accords,” International Journal of Statesmanship (Foundation for Constitutional Democracy), Vol. I, No. 2, Summer 1996, pp. 1-78. This article is a slightly condensed version of the petition submitted to the Supreme Court sitting as the High Court of Justice: HC 3414/96.
[6] It should be noted that only 8 of the 17-member Netanyahu Government supported the Wye Agreement.
[7] Har-Shefi’s defense lawyer noted that the United States and Great Britain had erased laws of this nature (“knowing and not telling”) from their law books.
[8] Nativ: A Journal of Politics and the Arts, July-September 1998, p. iv.
[9] Reported by Arutz-7, September 27, 1998.
[10 The Supreme Court has described the Immunity Law as going “beyond what is necessary, justified, and acceptable in most countries governed by parliamentary rule.” Cited in Ezra Zohar, Israel’s Dilemma (Shapolsky Publishers, 1989), p. 15.
[11] See endnote 12 below.
[12] Because of the broad sweep of the Immunity Law, members of the Knesset are virtually immune from indictment and prosecution for obvious criminal offenses. For example, in January 1992, Arab MK Hashim Mahameed (Hadash) told Arabs in Gaza: “By the intifada we mean not only the stone, but the war.... Palestinians must fight the conquerors with all the means they have.” Mahameed was not indicted for this prima facie seditious act. Instead, the Knesset, by a vote of 54 to 48, did nothing more than suspend for three months his parliamentary privilege of unrestricted access to all areas of the country! See Paul Eidelberg, Demophrenia: Israel and the Malaise of Democracy (Huntington Press, 1994), p. 112.
The following are remarks made by MK Abdel Darwashe (Arab Democratic Party):
* “Any Arab that serves in the Israeli army is a disgusting criminal.” (Interview with the Arab newspaper Al Hayat AlJadida published in Ramalah, April 2, 1998.)
* "With the help of Allah, when the independent Palestinian state is already established on the entirety of the Palestinian land ... we will all live as brothers and one family in one Palestinian state." (Interview with official Palestinian Authority television, November 26, 1998).
Darousha remains in the Knesset, not even censured, let alone indicted for sedition by the Attorney-General.