Law and History—A Need for Demarcation

ASHER MAOZ

I am grateful to David Abraham and Eben Moglen for their thoughtful comments that illuminate several aspects of my essay. I agree with many of their remarks.	1
Formally, it is indeed history with which the courts deal. This is so as courts are usually called to rule upon past events. Nevertheless, most of the events that are dealt with by the courts, just like most occurrences in life, do not attract historical interest. I am willing to accept the significance criterion proposed by Moglen for screening events of historical importance, yet it is the appropriateness criterion that tells us which of these events fits the judicial process. As for commissions of inquiry, both criteria apply. The event must be of significance ("a matter of vital public importance") to justify the establishment of a commission. At the same time it must fit the nature of a commission.	2
Neither courts of law nor commissions of inquiry are designed to adjudicate historical occurrences. Their goal is to deal with contemporary issues. True, courts may be dragged into issues concerning the distant past. So too may commissions of inquiry. This is so when a court is presented with a libel suit or a commission of inquiry is formed to deal with past events that generate public unrest. Yet, it is the present relevance of these occurrences that may justify the convening of a court or the calling of a commission of inquiry. Moglen is correct in predicting that the question of who murdered Nicole Brown Simpson may enhance scholarly research once the requisite time has elapsed. Indeed, such research may be taking place already. One can, moreover, anticipate the formation of a commission of inquiry to investigate the jury system or the appropriateness of the present rules of evidence, following, inter alia, the Simpson trial. I submit, however, that the straightforward question of the responsibility for the murder cannot be made the subject matter for such a commission.
Moglen asserts soothingly that the attempt to respond to a work of scholarship by an official inquiry will not imperil freedom of academic research. This statement is accurate and fits my own views as expressed in the essay. 1 When formulating my response I reviewed some of the materials that I had consulted when writing the essay. In one of the library copies of the Hebrew edition of Sykes's work Cross Roads to Israel, where he accuses "Revisionist fanatics" of the murder of Arlosoroff, 2 a reader protested: "Rewriting of history. Abominable and vulgar liar." To this another reader reacted: "Not proven. Murdered by Jews." As neither remark bears a date, it is hard to tell whether they were written prior to the convening of the Bechor Commission or following its findings. The purpose of the convening of the Bechor Commission was, indeed, to establish an "official truth." As we have seen 3 the commission too regarded its task in this way. Nonetheless, the fact that the findings of a commission do not silence opposing views does not justify the calling of a commission for such a purpose.	3
Abraham correctly links the establishment of the Bechor Commission with the Revisionists' heirs rise to power. Yet, one should be cautious not to draw far-reaching conclusions from this fact. All that governments can do is to establish a commission of inquiry, just as all that the Attorney General can do is to pursue charges in court. The rest is entirely in the hands of the court and the commission. Under Israeli law, appointments to a commission, and certainly the allocation of judicial tasks, is not part of executive privilege. The fact that Menachem Begin insisted on establishing a commission of inquiry merely meant that he was confident of his version of events being affirmed. Indeed, he insisted on carrying out an inquiry during the long period he sat in political opposition. Moreover, in most instances, as in the case of Sabra and Shatila, governments are dragged into establishing commissions of inquiry by public outcry. Certainly, a decision to establish a commission or to institute court proceedings to confirm a government's version of history 4 may prove detrimental to that version as was proved by the verdict of the trial court in the suit against Gruenwald. 5 The commission's findings will not necessarily correspond to the government's version of events. 6 Nevertheless, I do not believe that either courts or commissions of inquiry should engage in establishing historical truths.	4
Abraham stresses the lack of credibility surrounding the findings of commissions of inquiry that endeavor "to 'set the record straight,'" by providing "political truth." The situation may be more positive in Israel due to the composition of the commissions and their independence. Nevertheless, in almost all cases, their findings and recommendations came under fire. This is so since, almost inevitably, commissions deal with matters that raise sharp public controversy. 7 By and large, commissions of inquiry may be of two types: commissions with an eye to the past, having as their main purpose calming the public about past events, and commissions with an eye to the future. The latter are expected to make recommendations for future measures, based on findings of past occurrences. A good example of the first type is the South African Truth and Reconciliation Commissions, while state commissions under Israeli law are good examples of the latter. Nevertheless, the border between the two types is not sharp. In their efforts to bring about reconciliation the South African commissions purported to establish the truth, or, to use Abraham's phrase, "to set the record straight." On the other hand, Israeli commissions are frequently accused of trying to clear political figures in order to soothe the public. Thus, the Agranat Commission for the investigation of the omissions of the Yom Kippur War was criticized for failing to make recommendations regarding the political echelon. 8 The Kahan Commission, in contrast, was accused of being hard on the politicians. Another example may be the Bechor Commission. While most Revisionist circles welcomed its findings, approval was not unanimous. Joseph Nedava, a central Revisionist historian, expressed deep disappointment at the commission's findings. In his view, the commission failed to resolve the mystery of Arlosoroff's murder and thus put an end to a turbulent affair. This was so since the Bechor Commission chose to act as a reconciliation committee rather than as a commission of inquiry. Its members preferred to seek a compromise between the two rival camps, to appease and create peace between conflicting brothers. They preferred to blunt controversies that endangered the Zionist adventure and open a new page in the nation's history while hiding the marks of the dark past. In order to attain this goal the commission neglected the opportunity to deliver a revolutionary decision that might have changed history, by declaring the accusations thrown at the Revisionist movement to be a blood libel. 9	5
Moglen is right in emphasizing the centrality of blood libel in the Jewish ethos. Indeed, Ze'ev Jabotinsky was the first to use this term to characterize the accusations thrown at the Revisionist movement in relation to Arlosoroff's murder. He did so in a public statement following Stavsky's arrest 10 and later in an article published in the Yiddish daily Der Moment [The Moment], "Kalt un fest [Cool and Firm]." 11 Jabotinsky compared these accusations with one of the most notorious blood libels in modern times launched against Menachem Mendel Beilis in Russia in 1911. Jabotinsky endeavored to push this analogy to a symbolic dramatization. He wished to hire Oscar Osipovich Grusenberg, the renowned defense attorney in the Beilis trial, to head the defense in the Arlosoroff murder case, yet Grusenberg refused to take part in "political struggle." 12 Jabotinsky also compared the case to another famous "blood" libel—the false accusations launched against the French Jewish army officer Alfred Dreyfus. 13 Speakers for the Revisionist movement regarded these accusations as aimed at preventing the Revisionist movement from winning the then forthcoming elections to the World Zionist Congress. Had this happened, according to these sources, the result would have been the mass immigration of Jews from Central and Eastern Europe to Palestine. 14	6
Moglen makes an interesting reference to Ariel Sharon's libel suits against the magazine Time following the Kahan Report on the Sabra and Shatila massacre, 15 which may reflect on some of the issues discussed in the essay. The commission ordered the publication of its report except for Appendix B. 16 Time stated that in this appendix the commission reported on an alleged visit by Sharon to the Gemayel family following the assassination of President-elect Bashir Gemayel. During this visit Sharon informed the Gamayels of Israel's intention to move into West Beirut and expressed expectancy for the Christian Phalangist Militia to enter the Palestinian refugee camps. He, moreover, "discussed with the Gamayels the need for the Phalangists to take revenge for the assassination of Bashir." 17 In the open section of its report the commission cleared Israel and all those who acted on its behalf of any direct responsibility for the massacre. However, the commission attributed indirect responsibility to some of Israel's officials, including Minister Sharon, on the ground that they should have foreseen that the entry of the Phalangists into the camps would endanger the population and that they were under duty to take precautions against this. According to Time, in so deciding the commission set a "high moral standard," based on "an extraordinary concept of indirect responsibility." 18 This standard was "more stringent even than negligence." 19	7
The publication in Time was not detached from "rumors about Sharon [that] were being circulated." 20 In instituting libel proceedings against Time, Sharon must have been motivated by the desire to put an end to these rumors. The jury indeed found the publication to be false and libelous, yet the court ruled against Sharon as he had failed to prove actual malice by Time in making the publication. 21 An interview with David Halevi, on whose report the publication was based, sheds new light on this finding. In the interview 22 Halevi stated that when writing his report he fell victim to a campaign against Sharon. Halevi argued, moreover, that he had merely written a memo—which he did not check conclusively—designed to attract the editors' attention to the item. The memo resulted in the much sharper front-page article in Time. He also felt that he had been manipulated by Time editors and by the magazine's attorneys during the trial. Halevi accepted early retirement from the magazine two years after the trial. He said his work with Time had become unbearable since "I turned into a threat." Upon his retirement he was made to sign a commitment "not to speak, to write or say a word on the invasion of Lebanon and on Sharon's case against Time." "This document," emphasized Halevi, "proves that Time had something to hide." It is certainly a questionable practice to rely on a one-sided account of a former employee whose employment terminated in nonamicable circumstances. Possibly the jury's findings that Halevi "acted negligently and carelessly in reporting and verifying the information which ultimately found its way into the published paragraph" 23 also contributed to Halevi's reaction. Yet, the Sharon-Time affair may also prove how uncertain it is to rely on court verdicts. 24	9
One final word about courts. The late Yitzhak Kahan, a former president of the Supreme Court of Israel and chairperson of the Kahan Commission, was praised by a colleague for his mild style. "He never wrote in a judgment, that a party or a witness lied," wrote Justice Shlomo Levin. 25 He rather chose to write that he preferred one account over another. This was a result of Kahan's moderate nature. Yet, there was another reason: "He acknowledged the limitations of the judiciary in revealing the truth with utmost certainty. It is preferable—so he thought ... —not to taint a person who testified and who cannot defend himself against statements in the judgment." Yes, "the system of adjudication," as explained by Moglen, "is our default way of establishing the official version of contested experience." Yet, it is not a perfect way. Courts should be aware of this when deciding cases. The public should be aware of it when evaluating judgments. Finally, only disputes, which are in need of an "official version," should be submitted to judicial and quasi-judicial forums. Philosophy and history are not among these issues. 26	10
Notes       1. See Asher Maoz, "Historical Adjudication: Courts of Law, Commissions of Inquiry, and 'Historical Truth,'" Law and History Review 18 (2000): 576-77.
2. Ibid., 563, n. 11.
3. Ibid., 575.
4.It should be emphasized that, under Israeli law, the Attorney General enjoys full independence in deciding to pursue criminal charges and is not subordinate to the government or any of its members; see Report of the Agranat Committee [On the Powers of the Attorney General] (Jerusalem: Ministry of Justice, 1963).
5.For that reason it was suggested that Begin's government restricted the commission's terms of reference in the Arlosoroff case; see Maoz, "Historical Adjudication," 576, n. 54.
6. Abraham's assertion that the Bechor Commission "cleared the Revisionists of any culpability" is not supported by its conclusions. It was unable to establish "who were the murderers" and "whether it was a political murder." Yet one of its three members regarded this possibility "a theoretical speculation," while another saw it as "not reasonable." Only one viewed it as "a possibility" among "other assumptions."
7. Some cases that are submitted to commissions of inquiry deal with episodes that provide convenient soil for far-reaching conspiracy theories. The assassination of leaders like President Kennedy and Prime Minister Rabin fall into this category. Many regarded the findings in both these cases to the effect that the murders were carried out by lone assassins as too simplistic. Although the report of the Shamgar Commission (Va'a'dat ha'hakira le'inyan retzah rosh ha'memshala mar Yitzhak Rabin zal: Din ve'heshbon [The Commission of Inquiry in the Matter of the Assassination of Prime Minister Yitzhak Rabin: Report] (Jerusalem: 1996) was more broadly accepted than the Warren Report, several people, including members of the Rabin family, have demanded the appointment of a new commission to investigate fresh information regarding the murder.
8. See Pnina Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley: University of California Press, 1997), 229-33; Moshe Ben Ze'ev, "'Ha'dereg ha'medini' mul va'a'dot hakira—Ha'imut, ha'metah, ha'pehadim ["The Political Level" vis-à-vis Comissions of Inquiry—The Confrontation, the Tensions, the Fears]," in Sefer Yitzhak Kahan—Le'zichro shel Yitzhak Kahan nessi beit ha'mishpat ha'elyon [The Yitzhak Kahan Book—In Memory of Yitzhak Kahan, President of the Supreme Court], ed. Menahem Elon et al. (Tel-Aviv: Papyrus, 1989) 234, 239.
9. Joseph Nedava, "Almoni bemoked shel se'ara historit [Anonymous in the Focus of a Historical Storm]," Ha'ne'esham hasheni: Ma'avako shel Zvi Rosenblatt legiluy ha'emet [The Second Accused: Zvi Rosenblatt's Struggle for the Truth], ed. Joseph Nedava (Tel-Aviv: Machon Jabotinsky, 1986), 28-29.
10. See Joseph B. Schechtman, Fighter and Prophet: The Vladimir Jabotinsky Story: The Last Years (New York: Thomas Yoseloff, 1961), 186-87.
11. A Hebrew translation by Yehoshua Yevin, "Mitoch krirut ve'eytanut," was published in Be'ikvoth ne'e'lamim: Le'parashat Arlosoroff [In the Hidden Foothsteps: The Arlosoroff Case], ed. Arye Bechar (Tel-Aviv: Lipsha Zjamson, 1989), 9.
12. According to the Revisionists, he agreed to help but reneged after pressured by Yarblum, a leftist from the Paris Jewish Agency. Yet Jabotinsky got the support of Schlossberg, Grusenberg's aid, in defending the blood libel victim Blonds in Vilna in 1902. See H. Ben-Yeruham (H. Merhavia), Ha'a'lila ha'gedola, Lifney retzah Arlosoroffu'leaharav [The Great Libel: The Arlosoroff Case] (Tel-Aviv: Machon Jabotinsky, 1982), 62-63.
13. Both comparisons were adopted in the Revisionist ideology. Thus, Ahimeir, who appeared in Stavsky's trial as witness, refused to sit "on the chair on which Vera Cheberiak, the greatest liar in our generation sat"; Zvi Rozenblatt, "Ba 'yeshiva' u'bimhitzato (Im Petirato shel Abba Ahimeir) [In Jail and in His Company (With the Death of Abba Ahimeir)]," in Ha'ne'e'sham ha'sheni, ed. Nedava, 70, 72. Ahimeir was referring to the fact that Arlosoroff's wife, who had given evidence the day before, had sat on that chair, yet he used the name of the key witness for the prosecution in Beilis's trial. Possibly, there was a certain innuendo in this comparison, as Cheberiak herself was a major suspect in the murder investigation; see Meir Cotic, U'mishpat Beilis: Alilot dam ba'me'a ha'esrim [The Beilis Trial: Blood Libel in the Twentieth Century] (Tel-Aviv: Milo, 1978), 38-41. Nedava referred to the writer Ben-Zion Katz, who published the famous essay in defense of the persons accused of Arlosoroff's murder, though he did not belong to the Revisionist circles, as "the Jewish Émile Zola"; Nedava, "Almoni be'moked shel se'ara historit," 29.
14. See Yitzhak Shamir, "Hedey ha'yamim ha'shehorim ve'ha'adumim [Echoes of the Black and Red Days]," in Ha'ne'esham ha'sheni, ed. Nedava, 84. This accusation was repeated recently by the leader of the Likud party, Ariel Sharon, who added that had this happened, it would have changed Jewish history entirely.
15. The Commission of Inquiry into the Events at the Refugee Camps in Beirut, 1983: Final Report.
16.Pages 139-49 of the original Hebrew version.
17. "The Verdict is Guilty: An Israeli commission apportions the blame for the Beirut massacre," Time, 21 February 1983, 29; the relevant paragraph is cited in Sharon v. Time, Inc., 575 F. Supp. (S.D.N.Y. 1983) 1162, 1164-65.
18. Ibid., at 1169.
19. 18. Ibid., at 1169.
20. See Sharon v. Time, Inc., 599 F. Supp. (S.D.N.Y. 1984) 538, 567.
21. Sharon issued concurrent proceedings against the publisher of the European edition of Time in an Israeli court (C/A [Tel-Aviv] 460/83, Sharon v. Time-Life International B.V., not published). On this occasion he was more successful. The court rejected Time's defense of the truth of the publication and that it was not libelous, based on the New York Court verdict. This practically concluded the case, as under Israeli law no proof of malice is required in libel suits submitted by public figures. Following the court's decision the parties reached a compromise regarding the amount of damages to be paid by Time.
22. Moshe Sonder, "Shalom la'sandak, sliha mi'sar ha'hutz [Bye to the Godfather, Apology to the Minister of Foreign Affairs]," Ma'a'riv, Sof shavua [Weekend], 23 October 1998, 12.
23. See p. 4179 of the court's records.
24. A further libel suit ended less favorably for Sharon. The daily Ha'aretz published an article making an accusation that Begin knew that Sharon deceived him concerning the Lebanon war. The correspondent referred to Sharon being blamed for obtaining the Begin government's approval for the invasion of Lebanon through false pretenses, as if he was planning a limited military operation. The court found that the correspondent expressed a bona fide opinion of Sharon's behavior in an official position. Moreover, the correspondent succeeded in establishing the truth of the article. Of interest is Judge Moshe Talgam's opening statement: "This judgement does not purport to establish historical facts. The ability of a court to establish true facts, with reasonable certainty, is limited. This is so as the court has no access to facts save those presented by the parties. The court is prevented from carrying out further inquiries and clarifications, and the limitations imposed by the rules of evidence do not assist in revealing the truth. One who expects the court to expose historical truth is wrong. The court is particularly restricted in establishing historical truths in the circumstances of this case because of the privilege imposed on information sources that made them unavailable to the defendants and the court. It is feasible that upon the revealing of these sources, the established historical facts might change. The facts are established in court merely to determine between the litigating parties;" C/A (Tel-Aviv) 818/93, Sharon v. Benziman, not published. An appeal against the judgment is pending: C. App. 323/98, Sharon v. Benziman.
25. Shlomo Levin, "Kavim lidemuto shel Yitzhak Kanan [Portrait of Yitzhak Kanan]," in Sefer Yitzhak Kahan, ed. Elon et al., 13.
26. Recently, a remnant of the Kastner case came before the Supreme Court of Israel. In his docudrama Mishpat Kastner [The Kastner Trial] (Tel-Aviv: Or ve'tzel, 1994), Motti Lerner made Kastner throw at Hanah Senesh's mother that her daughter broke down during the course of being interrogated and handed over her two comrades to the Hungarian police. There was no factual basis for this accusation. Moreover, Kastner never raised this allegation in court. Giora Senesh, Hannah's brother, petitioned the Supreme Court sitting as the High Court of Justice to order the Israeli Broadcast Authority to remove this scene from the play that it intended to screen on Israel's state television (H.C. 6124, 6143/94, Senesh v. The Israel Broadcast Authority, forthcoming). For the parachutists episode, see Maoz, "Historical Adjudication," 590, n. 93. The Court rejected the petition. President Barak, writing for the majority, stated: "The controversial paragraph does not reflect historical truth. It has no historical foundation whatsoever. It is not true." Nevertheless, stated Barak, "a democratic society which loves freedom does not make its protection of expression and art contingent on them reflecting the truth.... A democratic society does not protect a legend by harming freedom of expression and art. The legend must stem from the free exchange of opinions and views. It must not be a result of governmental restrictions on freedom of expression and art. Hannah Senesh's legend will exist and flourish thanks to the freedom of the truth, not following the silencing of the untruth." Barak quoted another president of the Supreme Court, Justice Moshe Landau, who stated: "The distortion of historical facts does not justify the disqualification, because its creators could argue that there is no single historical truth; rather each historian has his own truth. And, anyway, since when does untruth disqualify a movie or a play from being screened or performed in a state which guarantees freedom of expression to the citizen"; H.C. 807/78, Ein Gal v. The Board for Supervision of Films and Plays, 33(1) P.D. 274, 277. (Censorship on films exists in Israel under the Cinematograph Films Ordinance, 1927; R. H. Drayton, The Laws of Palestine [London: Waterlow and Sons, 1934], vol. 1, ch. 16, p. 135. See, generally, Daniel More, "Film and Theatre Censorship in Israel," Israel Yearbook on Human Rights 9 [1979]: 225.)

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