Kahan Commission - Indirect Responsibility

Before we discuss the essence of the problem of the indirect responsibility of Israel, or of those who operated at its behest, we perceive it to be necessary to deal with objections that have been voiced on various occasions, according to which if Israel's direct responsibility for the atrocities is negated - i.e., if it is determined that the blood of those killed was not shed by I.D.F. soldiers and I.D.F. forces, or that others operating at the behest of the state were not parties to the atrocities - then there is no place for further discussion of the problem of indirect responsibility. The argument is that no responsibility should be laid on Israel for deeds perpetrated outside of its borders by members of the Christian community against Palestinians in that same country, or against Muslims located within the area of the camps. A certain echo of this approach may be found in statements made in the cabinet meeting of 19.9.82, and in statements released to the public by various sources.

We cannot accept this position. If it indeed becomes clear that those who decided on the entry of the Phalangists into the camps should have foreseen - from the information at their disposal and from things which were common knowledge - that there was danger of a massacre, and no steps were taken which might have prevented this danger or at least greatly reduced the possiblity that deeds of this type might be done, then those who made the decisions and those who implemented them are indirectly responsible for what ultimately occurred, even if they did not intend this to happen and merely disregarded the anticipated danger. A similar indirect responsibility also falls on those who knew of the decision; it was their duty, by virtue of their position and their office, to warn of the danger, and they did not fulfill this duty. It is also not possible to absolve of such indirect responsibility those persons who, when they received the first reports of what was happening in the camps, did not rush to prevent the continuation of the Phalangists' actions and did not do everything within their power to stop them. It is not our function as a commission of inquiry to lay a precise legal foundation for such indirect responsibility. It may be that from a legal perspective, the issue of responsibility is not unequivocal, in view of the lack of clarity regarding the status of the State of Israel and its forces in Lebanese territory. If the territory of West Beirut may be viewed at the time of the events as occupied territory - and we do not determine that such indeed is the case from a legal perspective - then it is the duty of the occupier, according to the rules of usual and customary international law, to do all it can to ensure the public's well-being and security. Even if these legal norms are invalid regarding the situation in which the Israeli government and the forces operating at its instructions found themselves at the time of the events, still, as far as the obligations applying to every civilized nation and the ethical rules accepted by civilized peoples go, the problem of indirect responsibility cannot be disregarded. A basis for such responsibility may be found in the outlook of our ancestors, which was expressed in things that were said about the moral significance of the biblical portion concerning the "beheaded heifer" (in the Book of Deuteronomy, chapter 21). It is said in Deuteronomy (21:6-7) that the elders of the city who were near the slain victim who has been found (and it is not known who struck him down) "will wash their hands over the beheaded heifer in the valley and reply: our hands did not shed this blood and our eyes did not see." Rabbi Yehoshua ben Levi says of this verse (Talmud, Tractate Sota 38b):

"The necessity for the heifer whose neck is to be broken only arises on account of the niggardliness of spirit, as it is said, 'Our hands have not shed this blood.' But can it enter our minds that the elders of a Court of Justice are shedders of blood! The meaning is, [the man found dead] did not come to us for help and we dismissed him, we did not see him and let him go - i.e., he did not come to us for help and we dismissed him without supplying him with food, we did not see him and let him go without escort." (Rashi explains that escort means a group that would accompany them; Sforno, a commentator from a later period, says in his commentary on Deuteronomy, "that there should not be spectators at the place, for if there were spectators there, they would protest and speak out.')

When we are dealing with the issue of indirect responsibility, it should also not be forgotten that the Jews in various lands of exile, and also in the Land of Israel when it was under foreign rule, suffered greatly from pogroms perpetrated by various hooligans; and the danger of disturbances against Jews in various lands, it seems evident, has not yet passed. The Jewish public's stand has always been that the responsibility for such deeds falls not only on those who rioted and committed the atrocities, but also on those who were responsible for safety and public order, who could have prevented the disturbances and did not fulfill their obligations in this respect. It is true that the regimes of various countries, among them even enlightened countries, have side-stepped such responsibility on more than one occasion and have not established inquiry commissions to investigate the issue of indirect responsibility, such as that about which we are speaking; but the development of ethical norms in the world public requires that the approach to this issue be universally shared, and that the responsibility be placed not just on the perpetrators, but also on those who could and should have prevented the commission of those deeds which must be condemned.

We would like to note here that we will not enter at all into the question of indirect responsibility of other elements besides the State of Israel. One might argue that such indirect responsibility falls, inter alia, on the Lebanese army, or on the Lebanese government to whose orders this army was subject, since despite Major General Drori's urgings in his talks with the heads of the Lebanese army, they did not grant Israel's request to enter the camps before the Phalangists or instead of the Phalangists, until 19.9.82. It should also be noted that in meetings with U.S. representatives during the critical days, Israel's spokesmen repeatedly requested that the U.S. use its influence to get the Lebanese Army to fulfill the function of maintaining public peace and order in West Beirut, but it does not seem that these requests had any result. One might also make charges concerning the hasty evacuation of the multi-national force by the countries whose troops were in place until after the evacuation of the terrorists. We will also not discuss the question of when other elements besides Israeli elements first learned of the massacre, and whether they did all they could to stop it or at least to immediately bring the reports in their possession to Israeli and other elements. We do not view it as our function to discuss these issues, which perhaps should be clarified in another framework; we will only discuss the issue of Israel's indirect responsibility, knowing that if this responsibility is determined, it is not an exclusive responsibility laid on Israel alone.

Here it is appropriate to discuss the question whether blame may be attached regarding the atrocities done in the camps to those who decided on the entry into West Beirut and on including the Phalangists in actions linked to this entry.

As has already been said above, the decision to enter West Beirut was adopted in conversations held between the Prime Minister and the Defense Minister on the night between 14-15 September 1982. No claim may be made that this decision was adopted by these two alone without convening a cabinet session. On that same night, an extraordinary emergency situation was created which justified immediate and concerted action to prevent a situation which appeared undesirable and even dangerous from Israel's perspective. There is great sense in the supposition that had I.D.F. troops not entered West Beirut, a situation of total chaos and battles between various combat forces would have developed, and the number of victims among the civilian population would have been far greater than it ultimately was. The Israeli military force was the only real force nearby which could take control over West Beirut so as to maintain the peace and prevent a resumption of hostile actions between various militias and communities. The Lebanese army could have performed a function in the refugee camps, but it did not then have the power to enforce order in all of West Beirut. Under these circumstances it could be assumed that were I.D.F. forces not to enter West Beirut, various atrocities would be perpetrated there in the absence of any real authority; and it may be that world public opinion might then have placed responsibility on Israel for having refrained from action.

Both the Prime Minister and the Defense Minister based the participation of the Phalangists in the entry into West Beirut on the Cabinet resolution adopted at the session of 15.6.82. We are unable to accept this reasoning. Although there was much talk in the meeting of 15.6.82 (Exhibit 53) about the plan that the I.D.F. would not enter West Beirut, and that the entry would be effected by the Phalangists with support from the I.D.F. - but the situation then was wholly different from the one that emerged subsequently. During the discussion of 15.6.82 the terrorists and Syrian forces had not yet been evacuated from West Beirut, and the entire military picture was different from the one that developed after the evacuation was executed and after Bashir's assassination. However, even if the Phalangists' participation was not based on a formal Cabinet resolution of 15.6.82, we found no cause to raise objections to that participation in the circumstances that were created after Bashir's assassination. We wish to stress that we are speaking now only of the Phalangists' participation in connection with the entry into West Beirut, and not about the role they were to play in the camps.

The demand made in Israel to have the Phalangists take part in the fighting was a general and understandable one; and political, and to some extent military, reasons existed for such participation. The general question of relations with the Phalangists and cooperation with them is a saliently political one, regarding which there may be legitimate differences of opinion and outlook. We do not find it justified to assert that the decision on this participation was unwarranted or that it should not have been made.

It is a different question whether the decision to have the Phalangists enter the camps was justified in the circumstances that were created. From the description of events cited above and from the testimony before us, it is clear that this decision was taken by the Minister of Defense with the concurrence of the Chief of Staff and that the Prime Minister did not know of it until the Cabinet session in the evening hours of 16.9.82. We shall leave to another section of this report - which will deal with the personal responsibility of all those to whom notices were sent under Section 15(A) of the law - the discussion of whether personal responsibility devolves upon the Defense Minister or the Chief of Staff for what happened afterward in the camps in the wake of the decision to have the Phalangists enter them. Here we shall discuss only the question of whether it was possible or necessary to foresee that the entry of the Phalangists into the camps, with them in control of the area where the Palestinian population was to be found, was liable to eventuate in a massacre, as in fact finally happened.

The heads of Government in Israel and the heads of the I.D.F. who testified before us were for the most part firm in their view that what happened in the camps was an unexpected occurrence, in the nature of a disaster which no one had of hostile actions between various militias and communities. The Lebanese army could have performed a function in the refugee camps, but it did not then have the power to enforce order in all of West Beirut. Under these circumstances it could be assumed that were I.D.F. forces not to enter West Beirut, various atrocities would be perpetrated there in the absence of any real authority; and it may be that world public opinion might then have placed responsibility on Israel for having refrained from action.

Both the Prime Minister and the Defense Minister based the participation of the Phalangists in the entry into West Beirut on the Cabinet resolution adopted at the session of 15.6.82. We are unable to accept this reasoning. Although there was much talk in the meeting of 15.6.82 (Exhibit 53) about the plan that the I.D.F. would not enter West Beirut, and that the entry would be effected by the Phalangists with support from the I.D.F. - but the situation then was wholly different from the one that emerged subsequently. During the discussion of 15.6.82 the terrorists and Syrian forces had not yet been evacuated from West Beirut, and the entire military picture was different from the one that developed after the evacuation was executed and after Bashir's assassination. However, even if the Phalangists' participation was not based on a formal Cabinet resolution of 15.6.82, we found no cause to raise objections to that participation in the circumstances that were created after Bashir's assassination. We wish to stress that we are speaking now only of the Phalangists' participation in connection with the entry into West Beirut, and not about the role they were to play in the camps.

The demand made in Israel to have the Phalangists take part in the fighting was a general and understandable one; and political, and to some extent military, reasons existed for such participation. The general question of relations with the Phalangists and cooperation with them is a saliently political one, regarding which there may be legitimate differences of opinion and outlook. We do not find it justified to assert that the decision on this participation was unwarranted or that it should not have been made.

It is a different question whether the decision to have the Phalangists enter the camps was justified in the circumstances that were created. From the description of events cited above and from the testimony before us, it is clear that this decision was taken by the Minister of Defense with the concurrence of the Chief of Staff and that the Prime Minister did not know of it until the Cabinet session in the evening hours of 16.9.82. We shall leave to another section of this report - which will deal with the personal responsibility of all those to whom notices were sent under Section 15(A) of the law - the discussion of whether personal responsibility devolves upon the Defense Minister or the Chief of Staff for what happened afterward in the camps in the wake of the decision to have the Phalangists enter them. Here we shall discuss only the question of whether it was possible or necessary to foresee that the entry of the Phalangists into the camps, with them in control of the area where the Palestinian population was to be found, was liable to eventuate in a massacre, as in fact finally happened.

The heads of Government in Israel and the heads of the I.D.F. who testified before us were for the most part firm in their view that what happened in the camps was an unexpected occurrence, in the nature of a disaster which no one had imagined and which could not have been - or, at all events, need not have been - foreseen. It was stressed in the remarks made in testimony and in the arguments advanced before us, that this matter should not be discussed in terms of hindsight, but that we must be careful to judge without taking into account what actually happened. We concur that special caution is required so as not to fall into the hindsight trap, but that caution does not exempt us from the obligation to examine whether persons acting and thinking rationally were duty-bound, when the decision was taken to have the Phalangists enter the camps, to foresee, according to the information that each of them possessed and according to public knowledge, that the entry of the Phalangists into the camps held out the danger of a massacre and that no little probability existed that it would in fact occur. At this stage of the discussion we shall not pause to examine the particular information possessed by the persons to whom notices were sent under Section 15(A) of the law, but shall make do with an examination of the knowledge possessed by everyone who had some expertise on the subject of Lebanon.

In our view, everyone who had anything to do with events in Lebanon should have felt apprehension about a massacre in the camps, if armed Phalangist forces were to be moved into them without the I.D.F. exercising concrete and effective supervision and scrutiny of them. All those concerned were well aware that combat morality among the various combatant groups in Lebanon differs from the norm in the I.D.F. that the combatants in Lebanon belittle the value of human life far beyond what is necessary and accepted in wars between civilized peoples, and that various atrocities against the non-combatant population had been widespread in Lebanon since 1975. It was well known that the Phalangists harbor deep enmity for the Palestinians, viewing them as the source of all the troubles that afflicted Lebanon during the years of the civil war. The fact that in certain operations carried out under close I.D.F. supervision the Phalangists did not deviate from disciplined behavior could not serve as an indication that their attitude toward the Palestinian population had changed, or that changes had been effected in their plans - which they made no effort to hide - for the Palestinians. To this backdrop of the Phalangists' attitude toward the Palestinians were added the profound shock in the wake of Bashir's death along with a group of Phalangists in the explosion at Ashrafiya, and the feeling of revenge that event must arouse, even without the identity of the assailant being known.

The written and oral summations presented to us stressed that most of the experts whose remarks were brought before the commission - both Military Intelligence personnel and Mossad personnel - had expressed the view that given the state of affairs existing when the decision was taken to have the Phalangists enter the camps, it could not be foreseen that the Phalangists would perpetrate a massacre, or at all events the probability of that occurring was low; and had they been asked for their opinion at the time they would have raised no objections to the decision. We are not prepared to attach any importance to these statements, and not necessarily due to the fact that this evaluation was refuted by reality. It is our impression that the remarks of the experts on this matter were influenced to a certain extent by the desire of each of them to justify his action or lack thereof, the experts having failed to raise any objection to the entry of the Phalangists into the camps when they learned of it. In contrast to the approach of these experts, there were cases in which other personnel, both from Military Intelligence, from other I.D.F. branches, and from outside the governmental framework, warned - as soon as they learned of the Phalangists' entry into the camps, and on earlier occasion when the Phalangists' role in the war was discussed - that the danger of a massacre was great and that the Phalangists would take advantage of every opportunity offered them to wreak vengeance on the Palestinians. Thus, for example, Intelligence Officer G. (whose name appears in Section I of Appendix B), a branch head in Military Intelligence/ Research, stated that the subject of possible injury by the Phalangists to the Palestinian population had come up many times in internal discussions (statement no. 176). Similarly, when Intelligence Officer A. learned on Thursday, in a briefing of Intelligence officers, that the Phalangists had entered the camps, he said, even before the report arrived about the 300 killed, that he was convinced that the entry would lead to a massacre of the refugee camps' population. In a working meeting held at 7:00 p.m. between Major General Drori and the liaison officer with the Lebanese army at Northern Command [headquarters], the officer was told by Major General Drori that the Phalangists were about to enter the Sabra and Shatilla refugee camps; his reaction was that this was a good solution, but care should be taken that they not commit acts of murder (statement No. 4 and testimony of Major General Drori, pp. 402-403). In his statement, Captain Nahum Menahem relates that in a meeting he had with the Defense Minister on 12.9.82, he informed the Defense Minister of his opinion, which was based on considerable experience and on a study he had made of the tensions between the communities in Lebanon, that a "terrible" slaughter could ensue if Israel failed to assuage the inter-communal tensions in Lebanon (statement No. 161, p. 4). We shall mention here also articles in the press stating that excesses could be expected on the part of the Christian fighters (article in the journal Bamahane from 1.9.82, appended to the statement - No. 24 - of the article's author, the journal's military reporter Mr. Yinon Shenkar) and that the refugee camps in Beirut were liable to undergo events exceeding what had happened at El Tel Za'atar (article in a French paper in Beirut from 20.8.82 appended to the statement, No. 76, of the journalist M. Strauch). We do not know whether the content of these articles was made known to the decisionmakers regarding the operation of the Phalangists in West Beirut, or to those who executed the decision. We mention them solely as yet another indication that even before Bashir's assassination the possibility of the Phalangists perpetrating a massacre in the camps was not esoteric lore which need not and could not have been foreseen.

We do not say that the decision to have the Phalangists enter the camps should under no circumstances have been made and was totally unwarranted. Serious considerations existed in favor of such a decision; and on this matter we shall repeat what has already been mentioned, that an understandable desire existed to prevent I.D. F. losses in hazardous combat in a built-up area, that it was justified to demand of the Phalangists to take part in combat which they regarded as a broad opening to assume power and for the restoration of Lebanese independence, and that the Phalangists were more expert than the I.D.F. in uncovering and identifying terrorists. These are weighty considerations; and had the decision-makers and executors been aware of the danger of harm to the civilian population on the part of the Phalangists but had nevertheless, having considered all the circumstances, decided to have the Phalangists enter the camps while taking all possible steps to prevent harm coming to the civilian population, it is possible that there would be no place to be critical of them, even if ultimately it had emerged that the decision had caused undesirable results and had caused damage. However, as it transpired no examination was made of all the considerations and their ramifications; hence the appropriate orders were not issued to the executors of the decisions and insufficient heed was taken to adopt the required measures. Herein lies the basis for imputing indirect responsibility to those persons who in our view did not fulfill the obligations placed on them.

To sum up this chapter, we assert that the atrocities in the refugee camps were perpetrated by members of the Phalangists, and that absolutely no direct responsibility devolves upon Israel or upon those who acted in its behalf. At the same time, it is clear from what we have said above that the decision on the entry of the Phalangists into the refugee camps was taken without consideration of the danger - which the makers and executors of the decision were obligated to foresee as probable - that the Phalangists would commit massacres and pogroms against the inhabitants of the camps, and without an examination of the means for preventing this danger. Similarly, it is clear from the course of events that when the reports began to arrive about the actions of the Phalangists in the camps, no proper heed was taken of these reports, the correct conclusions were not drawn from them, and no energetic and immediate actions were taken to restrain the Phalangists and put a stop to their actions. This both reflects and exhausts Israel's indirect responsibility for what occurred in the refugee camps. We shall discuss the responsibility of those who acted in Israel's behalf and in its name in the following chapters.

The Responsibility of the Political Echelon

Among those who received notices sent by the committee in accordance with Section 15(A) of the Commissions of Inquiry Law were the Prime Minister and two ministers, and in this matter no distinction was made between Cabinet ministers and officeholders and other officials. We took this course because, in our opinion, in principle, in the matter of personal responsibility, no distinction should be made between Cabinet members and others charged with personal responsibility for actions or oversights. We wish to note to the credit of the lawyers who appeared before us that none of them raised any argument to the effect that in the investigation being conducted before us, the status of Cabinet members differed from that of others. In our view, any claim that calls for a distinction of this sort is wholly untenable. We shall discuss this argument below, although it was raised not in the deliberations of the commission but outside them.

In the report of the "Commission of Inquiry - the Yom Kippur War" (henceforth the Agranat Commission), the subject of "personal responsibility of the government echelon" was discussed in Clause 30 of the partial report. It is appropriate to cite what was stated there, since we believe that it reflects the essence of the correct approach, from a legal and public standpoint, to the problem of the personal responsibility of the political echelon. The partial report of the Agranat Commission states (Section 30):

"In discussing the responsibility of ministers for an act or failure to act in which they actually or personally took part, we are obligated to stress that we consider ourselves free to draw conclusions, on the basis of our findings, that relate only to direct responsibility, and we do not see it as our task to express an opinion on what is implied by parliamentary responsibility.

"Indeed, in Israel, as in England - whence it came to us - the principle prevails that a member of the Cabinet is responsible to the elected assembly for all the administrative actions of the apparatus within his ministry, even if he was not initially aware of them and was not a party to them. However, while it is clear that this principle obligates him to report to the members of the elected assembly on such actions, including errors and failures; to reply to parliamentary questions; to defend them or to report on what has been done to correct errors - even the English experience shows that the traditions have not determined anything regarding the question of which cases of this kind require him to resign from his ministerial office; this varies, according to circumstances, from one case to the next. The main reason for this is that the question of the possible resignation of a Cabinet member in cases of this kind is essentially a political question par excellence, and therefore we believe that we should not deal with it..."

Later on in the partial report, the Agranat Commission deals (in Section 31) with the "direct personal responsibility of the Minister of Defense" and arrives at the conclusion that "according to the criterion of reasonable behavior demanded of one who holds the office of Minister of Defense, the minister was not obligated to order additional or different precautionary measures..."

The Agranat Commission also dealt (in Section 32 of its partial report) with the personal responsibility of the Prime Minister and arrived at the conclusion that she was not to be charged with any responsibility for her actions at the outbreak of the Yom Kippur War and afterwards.

From the above it is clear that the Agranat commission did not in any way avoid dealing with the question of the personal responsibility of the Prime Minister and other ministers, and regarding responsibility of this kind it did not distinguish between ministers and other people whose actions were investigated by the commission. The Agranat Commission did not discuss the question of a minister's responsibility for the shortcomings and failures of the apparatus he heads and for which he should not be charged with any personal responsibility. It is not necessary to deal in this report with the question of a minister's responsibility for the failures of his apparatus which occurred without any personal blame on his part, and we shall not express an opinion on it.

The claim has been made, albeit not in the framework of the commission's deliberations, that the matter of a minister's judgment cannot serve as the subject of investigation of a commission of inquiry according to the Commissions of Inquiry Law, 1968, because a minister's judgments are political judgments; there are no set norms regarding judgments of this kind; and therefore one cannot subject such judgments to scrutiny. We reject this view. It is unfounded from both a legal and a public point of view. From a legal standpoint, it is a well known rule, and attested by many rulings of the Supreme Court (sitting in its capacity as the High Court of Justice), that any judgment of a public authority, including that of ministers, is subject to scrutiny and examination in court. Decisions made on the basis of unwarranted, irrelevant, arbitrary, unreasonable, or immaterial considerations have more than once been disqualified by the courts.

In examining the considerations that served as the basis for decisions, the court never distinguished between the obligations of a minister and those of any other public authority. The fact that there exists no hard and fast law stating that a public authority must reach its decision on the basis of correct and reasonable considerations after examining all matters brought before it in a proper manner, has not prevented the courts from imposing obligations of this sort on every public authority.

This has no bearing on the principle that the court does not substitute its own judgment for the judgment of the public authority and usually does not intervene in the policy that the authority sets for itself.

This is all the more reason for rejecting the above-mentioned view when the matter under discussion is the deliberations of a commission of inquiry that is obligated to consider not necessarily the legal aspects of the subject but also, and occasionally primarily, its public and moral aspects. The absence of any hard and fast law regarding various matters does not exempt a man whose actions are subject to the scrutiny of a commission of inquiry from accountability, from a public standpoint, for his deeds or failures that indicate inefficiency on his part, lack of proper attention to his work, or actions executed hastily, negligently, unwisely, or shortsightedly when - considering the qualifications of the man who holds a certain office and the personal qualities demanded of him in fulfilling his duties -he should have acted perspicaciously. No commission of inquiry would fulfill its role properly if it did not exercise such scrutiny, in the framework of its competence, vis-a-vis any man whose actions and failures were under scrutiny, regardless of his position and public standing.

In conclusion, regarding personal responsibility, we will not draw a distinction between the political echelon and any other echelon.