Indirect Responsibility

...This both reflects and exhausts Israel's indirect responsibility for what occurred in the refugee camps...

...would accompany them...

...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...

...Yinon Shenkar) and that the refugee camps in Beirut were liable to undergo events exceeding what had happened at Tel Za'atar (article in a French paper in Beirut from 20.8.82 appended to the statement, No...

...Strauch...

...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...

...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 been taken to prevent this danger or at least to greatly reduce the possibility 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...

...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...

...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...

...There is great sense in the supposition that had IDF 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...

...We do not view it as our function to discuss these issues, which perhaps should be clarified in another framework...

...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...

...24—of the article's author, the journal's military reporter, Mr...

...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...

...and on this matter we shall repeat what has already been mentioned, that an understandable desire existed to prevent IDF 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 IDF in uncovering and identifying terrorists...

...We shall discuss the responsibility of those who acted in Israel's behalf and in its name in the following chapters...

...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...

...These are weighty considerations...

...All those concerned were well aware that combat morality among the various combatant groups in Lebanon differs from the norm in the IDF, 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...

...In contrast to the approach of these experts, there were cases in which other personnel, from Military Intelligence, from other IDF branches and from outside the governmental framework, warned—as soon as they learned of the Phalangists' entry into the camps and on earlier occasions 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...

...176...

...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...

...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 it may be that world public opinion might then have placed responsibility on Israel for having refrained from action...

...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...

...76, of the journalist, Mr...

...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...

...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 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...

...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...

...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...

...We do not know whether the content of these articles was made known to the decision-makers regarding the operation of the Phalangists in West Beirut, or to those who executed the decision...

...4 and testimony of Major General Drori, pp...

...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...

...hence the appropriate orders were not issued to the executors of the decisions and insufficient heed was taken to adopt the required measures...

...One might also make charges concerning the hasty evacuation of the multinational force by the countries whose troops were in place until after the evacuation of the terrorists...

...We are unable to accept this reasoning...

...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...

...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...

...However, as it transpired, no examination was made of all the considerations and their ramifications...

...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...

...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...

...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...

...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...

...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...

...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...

...Serious considerations existed in favor of such a decision...

...and political, and to some extent military, reasons existed for such participation...

...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...

...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...

...The 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 IDF soldiers and IDF 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...

...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...

...402-403...

...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...

...We do not find it justified to assert that the decision on this participation was unwarranted or that it should not have been made...

...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...

...Rashi ex-l plains that escort means a group that "In our view, everyone who had anything to do with events in Lebanon should have felt apprehension about a massacre in the camps...

...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...

...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...

...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...

...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...

...161, p. 4...

...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...

...The heads of Government in Israel and the heads of the IDF 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...

...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...

...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...

...but the development of ethical norms in the world public requires that the approach to this issue be universally snared, 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...

...It is not our function as a commission of inquiry to lay a precise legal foundation for such indirect responsibility...

...his reaction was that this was a good solution, but care should be taken that they not commit acts of murder (statement No...

...Herein lies the basis for imputing indirect responsibility to those persons who in our view did not fulfill the obligations placed on them...

...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...

...We cannot accept this position...

...Although there was much talk in the meeting of 15.6.82 about the plan that the IDF would not enter West Beirut, and that the entry would be effected by the Phalangists with support from the IDF, the situation then was wholly different from the one that emerged subsequently...

...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...

...It is true that the regimes of various countries, among them even enlightened countries, have sidestepped 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...

...No claim may be made that this decision was adopted by these two alone without convening a cabinet session...

...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...

...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 requests to enter the camps before the Phalangists or instead of the Phalangists, until 19.9.82...

...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...

...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...

...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...

...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...

...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 IDF exercising concrete and effective supervision and scrutiny of them...

...The demand made in Israel to have the Phalangists take part in the fighting was a general and understandable one...

...Under these circumstances it could be assumed that were IDF forces not to enter West Beirut, various atrocities would be perpetrated there in the absence of any real authority...

...It is a different question whether the decision to have the Phalangists enter the camps was justified in the circumstances that were created...

...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...

...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...

...The fact that in certain operations carried out under close IDF 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...

...and the danger of disturbances against Jews in various lands, it seems evident, has not yet passed...

...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...

...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...

...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...

...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...

...In a working meeting held at 7:00 p.m...

...In his statement...

...and had they been asked for their opinion at the time they would have raised no objections to the decision...