COMMISSION OF INQUIRY INTO THE MASSACRE AT THE TOMB OF THE PATRIARCHS IN HEBRON

EXCERPTS FROM THE REPORT

The excerpts from the Report were translated by the Government Press Office. They include the Introduction (chapter 1); the Conclusions

(chapter 8); and the Recommendations (chapter 9) of the official Report of the Commission of Inquiry written originally in Hebrew.

This is not an official version of the Report.

Government Press Office

Jerusalem, 5754-1994

Chapter 1. Introduction

Following the massacre in the Tomb of the Patriarchs in Hebron which occurred on 14 Adar, 5754 – 25.2.94, the Government decided on 16 Adar, 5754 – 27.2.94 to appoint a Commission of Inquiry. On 17 Adar, 5754 – 28.2.94, after consultation with the President of the Supreme Court, it was decided that the Commission would consist of five members. On 17 Adar, 5754 – 28.2.94, the President of the Supreme Court, Justice Meir Shamgar, decided that he would serve as Chairman of the Commission, and that its other members would be: Justice Eliezer Goldberg, Judge Abed el-Rahman Zouabi, Professor Menachem Ya’ari and Lieutenant General (res.) Moshe Levy. The Commission began hearing evidence on 25 Adar, 5754 – 8.3.94. Judge Alon Gillon was appointed as the Commission’s Coordinator. In accordance with section 13 of the Commission of Inquiry Law, 5729 – 1969, the Chairman of the Commission appointed investigators to collect information; Attorney ‘Michael Shaked of the Attorney General’s office served as the coordinator of the investigators. Attorney Dafna Beinwall of the Attorney General’s office and Deputy Commander Anton Iyov, Inspector Armand Edri and Inspector Daniel Israel of the Israel Police worked with him.

The Commission heard most of the testimony in sessions that were open to the public.

The Commission held 31 sessions and heard evidence from 106 witnesses, some of them at the Commission’s initiative and some at their own request. The complete or partial testimony of 16 witnesses was heard behind closed doors. During one of the first days of its activities, the Commission engaged in a thorough and detailed examination of the Tomb of the Patriarchs and the surrounding area.

The Commission made a public announcement requesting that anyone who wished to testify before the Commission or present it with documents or exhibits, make their intention known to it in writing, for that purpose. Each of the 167 requests was discussed and the appropriate procedure to be followed concerning it was determined.

The Commission received 1,140 exhibits, 37 of them written testimony collected by the investigators and the rest orders, documents, files, books, findings from the scene of the crime, expert opinions, photographs, etc. All of this material has been catalogued in files according to a filing number which appears in the full contents.

After the hearing of testimony was concluded, the Commission considered whether it was required to provide notices in accordance with section 15 of the Commission of Inquiry Law, 5729 – 1969. After deciding that it was not required to do so, and that the material which was before it, was sufficient to allow the findings to be summarized, conclusions to be drawn and recommendations made, this report was prepared.

The Commission wishes to thank those who testified before it, as well as the government authorities who provided it with all of the information which it requested.

It is also important to note the outstanding and extremely valuable assistance that the Commission received from the investigators mentioned above, led by Attorney Michael Shaked and Attorney Dafna Beinwall. They should be commended for their efforts. Our thanks also go to Judge Gillon, the Commission’s Coordinator who worked diligently on all of the organizational arrangements; Ms. Dina Zohari, who typed the report and Mr. Yaakov Hasson who typeset and proofread the report.

Jerusalem, Tamuz 1994 June 1994

Chapter 8. Conclusions

1. Order of Contents

The Commission’s conclusions will primarily follow the order in which the findings were presented, in addition to an overview of the different issues which it discussed. Therefore, we will refrain from repeating all of the reasoning for our conclusions which was covered in earlier chapters. The conclusions will be presented in the following order: responsibility for the killings and whether the assailant had an accomplice; deployment of the security forces and the actions of those directly involved in overseeing the Tomb of the Patriarchs; medical treatment of the injured; Border Police and Police actions; initial assessment of the situation; carrying weapons inside the Tomb; procedures for prayer services; regulations governing opening fire; application of the law.

The recommendations will be based on the lessons drawn from our conclusions presented below.

2. Responsibility for the Killing and Whether the Assailant Had an Accomplice

(a) Dr. Baruch Goldstein bears direct responsibility for the massacre because the evidence unequivocally indicates that he carried it out. Furthermore, all stages of the event, including his preparations and behavior on the morning of February 25, 1994, as well as both general, and specifically ideological conversations which he conducted with others, such as the arguments with Mr. Meir Lapid (exhibit 1088), and an interview with a foreign correspondent early in February 1994 (exhibit 1092), indicate that his actions were premeditated.

The evidence presented to us indicates that he acted alone. We were not presented with credible proof that he was helped, while carrying out the killing or prior to that time, by another individual acting as an accomplice, nor was it proven to us that he had secret partners. According to the evidence before us, his wife also was not aware of the matter. The complete secrecy and the decisiveness of his independent act also match the character and behavior of this assailant, as it emerged from the evidence before us, the gist of which appears in Chapter 2.4 [in the full Report, in Hebrew]. In order to achieve his goal, he took full advantage of the prestige and trust he had acquired while serving as a doctor and reserve officer. His appearance at the Tomb, in uniform, bearing the insignia of his rank, created an impression designed to remove all obstacles from his path. Most of those present were also used to seeing Goldstein occasionally when he came for early morning prayer services. Consequently, his presence at the Tomb did not raise any suspicion or concern, nor draw any particular notice. In that connection, it must be emphasized that those guarding the Tomb did not receive any warning regarding an expected attack by Jews against Moslem worshipers at the Tomb. In contrast to this, warnings were issued regarding an expected attack by Hamas following the distribution of its leaflets in Hebron.

(b) As mentioned, we have no evidence before us indicating the existence of an accomplice who knowingly provided backing or cover for Goldstein’s actions in the Tomb.

Mention was made of an anonymous individual, carrying a Glilon rifle, whom the two soldiers on guard duty next to the East Gate, Kobi and Niv, testified to having seen, as he approached the Tomb via the Jawalya corridor. According to them, the anonymous individual arrived after Goldstein and before Eli Ganon, the driver of the "garbage truck". Since he was an unfamiliar face, the suspicion arose in retrospect, that this may have been Goldstein’s accomplice, who carried a Glilon for him or perhaps assisted him in some other way. However, other than these two soldiers, the questioning of the other witnesses did not reveal that they saw an individual carrying a weapon as Kobi and Niv had described: the individual was not seen by those guarding the main gate, by Lieut. Ravivi, or by anyone else who was at the Tomb that morning, including the waqf guards – who know most of the members of the early morning prayer group or at least recognize their faces – and those praying in the Abraham Hall. Furthermore, the statement that perhaps the person described above was seen sometime close to the arrival of Eli Ganon at the Tomb and after Goldstein’s arrival, contradicts the information given that Eli Ganon arrived around 4:45, while Goldstein only arrived at 5:20 in the Abraham Hall. After the massacre, a list of the names of all those present in the Abraham Hall was made; all were known to the military personnel, and all testified before us and none of them was carrying either a Glilon or an M-16 rifle on that morning.

Neither did anyone see the person described above as he left the Tomb; none of the Moslem worshipers testified that there was a Jewish worshiper carrying an M-16 rifle (assuming that he had handed the Glilon to Goldstein and received the M-16) in the stream of those exiting via the Jawalya corridor. In contrast, there were those who saw a worshiper from the early morning prayer service (Shaul Kandy) who entered the Tomb, on his way from the rest room, while the stream of Moslem worshipers was rushing forth to get outside. No one found an M-16 rifle in the Tomb, but had it been replaced with Goldstein’s Glilon and not been taken out of the Tomb, it would have had to turn up inside. As was mentioned, the evidence showed that the reports communicated via walkie-talkie regarding an M-16 and a pistol which were supposed to be next to Goldstein’s body and which disappeared, ostensibly, were also based on the statements by Kobi and Niv in which Goldstein, in their opinion, was carrying an M-16 rifle and not a Glilon.

The point is that no one saw an unknown individual, as described above, engaged in any act which can be understood as aiding Goldstein, nor were any shell casings found to indicate the possibility that shots were fired from an additional weapon in the Isaac Hall. On the steps outside the Tomb next to the main gate, a single shell casing was found and mistakenly put in with the shell casings gathered from the Isaac Hall. In Chapter 2 [in the full Report, in Hebrew] above, we discussed the reasons for the mixing of this casing with the other casings in one bag. Indeed, all of the casings gathered were identified by the weapon from which they were fired, except one. Furthermore, there is no reason to assume that while the casings were being collected, the specific casings belonging to the weapon of another person were the ones which disappeared; all 5.56 mm casings are identical from the outside and only a forensic analysis can identify which weapon it belongs to. It is therefore not possible to selectively gather from the floor 5.56 mm casings from a specific weapon in order to hide them. There was also no physical opportunity to carry out such a collection, certainly not while the Moslem worshipers were still in the hall, and not afterwards either, after the soldiers and police officers had entered the Hall. The single casing found on the outside stairs must therefore, apparently, be the unidentified casing from the bag of casings gathered at the scene of the crime. In addition, the casing found on the stairs cannot be the casing of a bullet fired from Goldstein’s Glilon: it was proven that no one fired before the massacre, and after the massacre, the Glilon was already hidden beneath the bookcase of Koranic texts in the Isaac Hall.

No fragments of a hand grenade were found in the hall nor were there signs of damage caused by grenade fragments in the walls. No hand grenade fragments were found in the bodies of the injured who were operated on or x-rayed.

Those Moslem worshipers who turned around after the shooting started, clearly saw only one gunman in the hall, whom they described. Their descriptions of his face and image exactly matched those of Goldstein; some of the worshipers had even recognized him before this. The connection to Goldstein also follows from the sequence of events, since the person whom the Moslem worshipers identified as the gunman, was later attacked by some members of the congregation and killed. The worshipers who assaulted Goldstein before he was killed did not claim at the same time, that there was another gunman in the hall, or that there was someone shooting to provide cover for Goldstein.

A few of the Moslem worshipers did indeed testify that they heard shots from another source, or which sounded differently, and there was also someone who said he saw soldiers shooting into the Isaac Hall from its main entrance. However the questioning of witnesses, or of those who submitted statements, as the case may be, in order to investigate the credibility of their version, did not convince us of the credibility and truth of this claim; rather it did the opposite. Thus for example, Haj Ahmad Nasr (p. 2247), claimed that he saw the half-inch barrel of a weapon inserted into the Isaac Hall from an opening in the door of the Abraham Hall. But, in effect, while testifying before us, he retracted his description, which also did not correspond to the [physical] circumstances of the site, in which there is no opening similar to the one which he described, in the door separating the Abraham Hall and the Isaac Hall (photo exhibit 324). Rafet Fahmi el-Kerki also referred to an aperture in the door separating the Abraham Hall and the Isaac Hall (p. 1242), although there is no such aperture. Abd el Hafez Salman al-Jibri

(p.1148), testified before us about, "six or seven gunmen", yet could not explain why he did not mention such a crucial fact when he gave a statement to the Police shortly after the massacre took place. The testimony of Muhamed Musbah Al-Jibri and Zalah Iyash Al-Jibri contained contradictions between testimony which was presented before us, and that presented previously in written statements taken shortly after the massacre. Yusri Mahmud Musa al Jimail described the sound of two different types of shots (one light and one heavy); thus, according to him, two different types of weapons were used, yet this does not at all correspond with the findings, such as the kinds of casings gathered in the Hall. Of course, it is possible that the witness erred in assessing the link between the different sounds of the shots, and the differing distances from the source of the shooting, and that he perceived the shots fired from the Jawalya corridor as coming from inside the Isaac Hall. Incidentally, this witness broke the law in telling a blatant falsehood: according to him, soldiers fired intentionally on anyone who left the "pishpesh" door in the direction of the Jawalya corridor (p.1080). No other witness made such a claim and the other evidence proved that this never happened.

Therefore, the allegations that shots with different sounds were heard, that the barrel of a weapon was inserted through an opening from the Abraham Hall; accounts of the presence of three, six or even seven gunmen; as well as other similar claims made by some of the Moslem worshipers were inconsistent, and have not been substantiated. Nor have they been in any way supported by the Waqf workers, Salmon or Abu Salah.

Perhaps the fact that the versions provided by the Moslem worshipers were inconsistent and unfounded in comparison to the objective facts should not surprise us: following a traumatic event such as was experienced by the worshipers in the Isaac Hall – with casualties falling all around them, and their own lives in danger – it is often difficult to be precise, uniform and consistent in the recollection and description of events (as in the "Rashomon" syndrome); in addition, some of the witnesses may have wished to place the responsibility for the events on the shoulders of all the military personnel and all of the Jewish worshipers present at the Tomb at the time.

Needless to say, had there been an additional gunman standing at the main entrance to the Isaac Hall, as has been claimed, worshipers would have attempted to escape by a different route.

There remains, of course, the possibility that the unknown individual arrived at the site only to carry Goldstein’s Glilon, and to exchange it before the shooting with the M-16 supposedly carried into the Tomb by Goldstein, or in order to assist Goldstein in some other way (such as the opening of the Yosefiya door). If we examine this possibility, it is not clear why Goldstein, who did not conceal his identity, would want to carry a weapon other than his personal one, especially as it seems clear from the events that he had intended to use the Glilon for the shooting; why then would he have wanted to exchange weapons?

In conclusion, the fact that only Kobi and Niv saw an unknown individual, and no one else saw him either entering, exiting or moving within the Tomb, raises doubt both as to the accuracy of their reconstruction, and as to their attribution of the matter to the day in question. Kobi and Niv may have simply been mistaken in ascribing the arrival of this unknown person to the day of the massacre, as before the shooting there was nothing to call their attention to specific individuals entering the site.

As already mentioned, there is no evidence that a hand-grenade was thrown; (in light of tests of sounds made by shooting described in the expert opinion of Lieutenant Colonel Isser Wexler of the ordnance corps; exhibit 1096), the loud noise heard at the beginning of the shooting could have been the result of two shots having passed close to the microphone near the mehrab (podium) serving the Imam, so that the microphone might have amplified the noise and made it sound like that of an explosion. It should be mentioned here, that the marks made by the impact of two bullets were found inside the mehrab and in a nearby wall.

Our conclusion is that the evidence before us does not support the conclusion that an additional person was present, who shot at the Isaac Hall or into it, or that Goldstein had an accomplice, or an assistant at the Tomb. The evidence before us indicates that Goldstein acted alone.

(c) The question arises, of whether the [Jewish] worshipers from the early morning prayer group at the Abraham Hall helped Goldstein by giving tacit consent to the opening of the door leading from the Abraham Hall to the Isaac Hall, in order to enable Goldstein to enter the Isaac Hall. This theory was brought up in Second Lieutenant Ravivi’s first statement. The worshipers, all of whom have been questioned in the matter, have denied this entirely. Most of them also claimed that they had not seen Goldstein in the Abraham Hall, although it is clear that he had been there that morning, as three members of the prayer group testified to that effect, and since that Hall is where Goldstein’s bag was found. Clearly, a denial of the opening of the door is not sufficient to dismiss the possibility that this is in fact what happened. However, this issue is linked to the broader question of how Goldstein entered the Isaac Hall.

A detailed analysis of Goldstein’s entry into the Isaac Hall appears in Chapter 2 (in the full Report, in Hebrew), where we also reviewed the three possible routes of entry, and discussed the considerations supporting or contradicting the use of each of them. The routes are: the main entrance, the door connecting the Abraham and the Isaac Halls, and the door leading from the Yosefiya Hall to the Isaac Hall.

As mentioned previously in Chapter 2 [in the full Report, in Hebrew], we cannot rule out the possibility that Goldstein entered via the main entrance to the Isaac Hall, without Ravivi noticing. Nonetheless, we rejected Abu Salah’s theory as not credible, and we enumerated the contradictions in his statements – including those between his statement and that of the head of the security detail, Hashalmon – and the absence of logic in his version of his movements before and after the shooting began. We also accept Ravivi’s claim that he was in the plaza during the critical period, that is, from the time Goldstein reached the plaza and the inner courtyard around 05:20, until the shooting began. Ravivi’s version of this is supported by additional witnesses, among them the head of the Waqf guard, Hashalmon, as well as Moslem and Jewish worshipers.

However, it is possible, for example, that Goldstein passed through the plaza en route to the main entrance of the Isaac Hall behind Ravivi’s back while the latter was approaching the wicket door, and therefore Ravivi did not notice Goldstein. Ravivi’s remarks indicate that he did not remain stationary next to the wall of the Sarah Hall, but rather that he roamed – as he was permitted to do – back and forth within the plaza and even approached the wicket door.

It is also possible that Goldstein’s movements, as reviewed in retrospect and in light of what we now know, did not on that morning, in Ravivi’s eyes attract any particular attention. Ravivi explained, as mentioned previously in Chapter 2.4, that Goldstein as a doctor and as a reserve officer, accepted by the army authorities, did not raise any suspicions whatsoever. At the same time, Ravivi thought that Goldstein could not pass behind him in the relatively small plaza without his noticing, even if he (Ravivi) was moving from the wall of Sarah Hall to the wicket door.

Also reviewed was the possibility, which was analyzed at length in Chapter 2 [in the full Report, in Hebrew; sections (32) and (34)(6) and

(7)], that Goldstein chose to enter via the Yosefiya [passage]. There he could open the door without drawing the attention of the soldiers on guard, the Jewish worshipers, or the Waqf guards, while at the same time leaving himself an opening through which to escape.

Entry via the Abraham Hall is also a theoretical possibility. However on the side of the Isaac Hall, as described in Chapter 2 [in the full Report, in Hebrew], obstacles were placed, among them a heavy chair and a wooden beam, in order to make opening the door difficult. Moving these objects might have caused the Moslem worshipers next to the northern wall inside the Isaac Hall to take early notice of the opening of the door. Taking into account Goldstein’s familiarity with all of the activities in the Tomb, he surely also knew that there usually was a ladder placed there which would prevent the opening of the door.

The conclusion concerning this point, as noted in Chapter 2 section

(34)(8) is that we have no reliable proof of how Goldstein entered the Isaac Hall: all three alternatives are possible, but of the three, entry via the main entrance or via the Yosefiya door are the most likely. In the absence of conclusive evidence, it is not possible to reach a more decisive determination.

3. Deployment of the Security Forces

(a) Based on the evidence before us, there is no reason to suspect Major Stelman, First Lieutenant Biton, Second Lieutenant Ravivi or any of the soldiers on duty in the Tomb that morning of knowingly collaborating with Goldstein or of facilitating his actions.

According to the evidence, there is also no reason to see Edelstein, the reserve soldier in the operations room, or Ungar, the driver of the security jeep, as aiding Goldstein while knowing of his intentions and his target.

The separate issue of whether any one of those in positions of responsibility was negligent in carrying out his duties must be examined.

(b) The posting of soldiers on duty was carried out in accordance with procedures: the shift’s arrival, the drill at 2:00 and the opening of the East Gate followed the regulations. However, according to the Brigade’s standing order, any given guard detail had to have been in the Tomb twenty-four hours a day, that is, throughout the entire night as well

(see section 5 of the chapter on standing orders for guards inside the Tomb, by order of the Judea Brigade-1994; see also appendix d of the 1991 order and an identical instruction in the 1982 order). This order was not carried out, because the shift only entered the Tomb at around 04:00. This shortcoming was a result of the general arrangements for guard duty, and does not apply solely to this shift. This, of course, had no practical effect whatsoever on the massacre which was committed at 5:30 by someone who entered the Tomb at 5:20, yet there was a failure to carry out the letter of the order.

(c) The manner in which those entering the Tomb were checked was not as it should have been, primarily due to technical shortcomings found in the metal detectors installed at the gates which worshipers entered. As mentioned earlier, requests for replacing the metal detectors were submitted to the headquarters responsible, but there was no effective response to the request, and the matter was drawn out due to discussions between the Civil Administration and the Division Command regarding budgetary responsibility and allocation of the expenses involved. As often happens, what is implemented immediately after a tragedy occurs, is not done beforehand. After the massacre, the means were found to finance the acquisition of state-of-the-art metal detectors and the replacement of the closed circuit television system, whose shortcomings were described in Chapter 2 above.

As a result of the shortcomings of the metal detectors and despite the warnings of a possible terrorist attack by Hamas, only a minuscule proportion of the male Moslem worshipers of the critical age (between 15 and 45, according to the order), were frisked to prevent arms or explosives from being brought in. The women were not searched at all. Yet the Command at the Tomb did carry out its duty as far as reporting the shortcomings of the metal detectors, since it did appeal to the headquarters in charge several times. The soldiers acted in the accepted way, and without being admonished to change their approach. However, despite this, there was no room for compromising with the reality of the situation. Soldiers are posted at the site, among other things, to check those entering it and if there was a problem with metal detectors, then there was an obligation to supplement the forces at the gates so that an adequate inspection would be conducted, that is, an individual inspection of each person entering. No one was authorized to waive the inspection of individuals entering the Tomb, especially at a time when a warning of a possible Hamas attack had been issued.

The lack of effective inspection of Moslem worshipers entering the Cave was a deficiency in the security arrangements.

(d) Regarding the faults in the metal detectors and in the closed-circuit television system, it is worth emphasizing that the gathering of reliable, current information about developments in a given organization is of the utmost importance. Reliable information includes reports on shortcomings and faults. Such information, in effect, aides in improving operations and implementing the organization’s goals (see also "Do They Intend to Issue a Warning", Maarchot, January-February 1994, p. 7). However, filtering the information on faults which is relayed by the lower command level is the responsibility of the command level. In other words, in the structure of a military organization, each subordinate is obligated to draw his superiors’ attention to a shortcoming or problem, but the commanding officer is responsible for dealing with the matter.

Issues such as the one before us frequently entail, of course, questions of priorities and the designation of preference in allocating resources. Clearly, more sensitive issues must receive higher priority.

Moving from the general to the specific: it is inconceivable how it was possible to maintain effective supervision of a holy site, that is sensitive and fraught with conflict, if state-of-the-art technology capable of preventing anyone from bringing in arms and explosives, was not posted at the entrance. What is required at every airport and any other sensitive facility, is also required at the unique holy site referred to here. This applies also to the constant monitoring of activity inside the Tomb by way of closed-circuit television appropriate to the conditions of the location.

Nevertheless, in the matter at hand, there is no connection between the lack of appropriate inspection of the the hundreds of worshipers who entered on the morning of 25 February, 1994, and the ineffectiveness of the closed-circuit television system, and the massacre. However, since the issue has been raised, we must draw the necessary lesson from it: In sorting out budgetary requests, the response and the pace at which the shortcoming is corrected must take into account its sensitivity, in terms of safety and security. The routine handling of logistical concerns and even financial considerations, must retreat in this case in the face of safety and security concerns. Furthermore, the shortcomings in technical arrangements should have been part of the overall assessment of security at the Tomb.

(e) Around 5:10, Second Lieutenant Ravivi sent Corporal Jerry Melnick to the generator post in order to replace Sergeant Birman who was then to join Ravivi at the Tomb. Because Melnick left to go to the generator post, Ravivi was in the meantime left alone in the plaza and inner courtyard. No Israel Police officer reported for duty at all. We will return to the level of coordination between the District Police office and the Hebron Police station on the one hand, and the Division and Brigade on the other, although Ravivi could not have changed anything with regard to this matter. Three Border Policemen who were supposed to show up at 5:00 to reinforce the guard detail, did not appear. Ravivi did everything he could to verify that the Border Policemen had been awakened at their unit – something which was the responsibility of their immediate commanders – and asked the operations room to contact the Border Patrol camp in order to wake up the Border Policemen so that they could report to the Tomb on time. Around 05:00, the Border Police gave him the incorrect reply that the Border Policemen were already on their way. There was no basis for this information, but Ravivi did not know that. Under these circumstances, it was permissible for him to decide that he could carry out the switching of Melnick and Birman, which was also important for raising the level of alertness at the Tomb during critical periods. Of course, had he known that the Border Policemen would not arrive until after 5:30, he would have been able to proceed differently, perhaps calling the guard detachment standing by on alert to the Tomb. However, this is mostly wisdom in hindsight; he could not have known that there would be an attack, but had to think how the call up of the detachment on alert, would have been received at 5:05 if a minute later the Border Policemen were indeed to arrive, as their unit reported that they would. The information which he had at the time was that the Border Policemen were already on their way from a place a few minutes away from the Tomb; that Sergeant Birman was to arrive at any moment; that two additional soldiers were in the Jawalya corridor, one of them in eye contact with him; that services in the Isaac Hall were to begin in a few minutes, with all the worshipers already gathered there; and that they would remain there until the conclusion of prayers approximately forty minutes later.

Our conclusion is that the decision not to call up the force on alert was in retrospect not a decision that should have been condemned. Certainly it should not be seen as a negligent one. There is also no reason to conclude that the switching of Melnick and Birman at that specific time was a negligent act.

There is no point in getting into minor details. But as a general comment regarding the preparedness of the soldiers, the switching of Melnick and Birman can be questioned, since the walk from the Tomb to the genarator and back should have taken around twenty minutes. There is also no justification for the fact that soldiers – posted in the Tomb (Kobi and Niv) were sitting on chairs while on duty.

The failure of the Border Police and of the Police to show up will be discussed separately.

In our opinion, the determining factor is that had the guard detail being comprised of an officer, a sergeant and three Border Policemen inside the plaza and the Abraham Hall (two next to the door to the Isaac Hall and one inside the Isaac Hall) and an Israel Policeman inside the inner courtyard, there would have been a sufficient security force. That would have sufficed to impede Goldstein’s efforts to enter Isaac Hall either via the main door or via the Abraham Hall, or even to prevent it altogether. It would not have sufficed to prevent his entering via the Yosefiya Hall, if he did indeed enter from there.

(f) The way in which the guards at the east gate, Kobi and Niv acted upon hearing the shots was understandable and reasonable, taking into account what they might have been able to guess and understand about the circumstances. Closing the east gate was necessary according to them, in order to prevent their being overwhelmed by the mob of worshipers, or their being flanked by the person(s) as yet unidentified, doing the shooting. Their firing shots in the air and toward the wicket door was in the nature of a response to the unknown which cannot be dismissed in these circumstances.

(g) Once the massacre had occurred, after Goldstein had entered the Isaac Hall, Ravivi did not react immediately, but froze at his post for a short time. This is understandable since he was alone there, while simultaneously the flow of worshipers outside began, and he was cut off from the two soldiers at the east gate.

Presumably the presence of a larger number of soldiers in the plaza would, by contrast, have resulted in quicker and more intensive intervention in order to stop Goldstein immediately after he began shooting.

(h) To summarize regarding Second Lieutenant Ravivi: Ravivi encountered, in this incident, a combination of circumstances which could not have been anticipated; on the one hand, was Goldstein’s murderous plan, which relied upon the fact that his uniform and his position would facilitate all that he planned to carry out. On the other hand, there was the failure of part of the force that was to supposed to be guarding the Tomb to show up and whose absence necessarily weakened the control over what was going on; Sergeant Birman had not yet arrived, the Border Policemen had not yet arrived, the Policeman had not yet arrived. Each of these problems described, resulted from a different cause, each unrelated to the other and not capable of having been coordinated in advance. The coincidence of not reporting for duty, each for a different reason could not have been anticipated, unless one takes into account at the outset, the possibility of insufficient preparedness. Furthermore, this does not refer to an incident whose significance was immediately clearly apparent with the whole picture clear, but rather the opposite. What occurred were absences which were to have ended within a few minutes, if not seconds

(meaning, the Border Policemen would show up, Sergeant Birman would arrive, the Policeman would appear), and Ravivi did not know, and could not have known that he should call for reinforcements.

In retrospect, the picture naturally appears different.

To conclude this point: the absence of the full complement of forces at the time of the massacre was an unfortunate coincidence whose roots lie both in shortcomings in coordination between the forces, and in the level of discipline in some of units.

4. Medical Treatment

(1) In Chapter 2.5 [of the full Report, in Hebrew], we covered at length the treatment of the injured in the various hospitals and we will not repeat the reasoning on this matter.

A determination can be made that there was no basis for the claim that the soldiers at the East Gate delayed the transfer of the injured from the Isaac Hall to the main gate, except for the initial few seconds after the shooting started, that is – until the soldiers at the East Gate understood the significance of what was going on. There was also no delay in the transfer of injured from the gate of the Tomb to the hospitals, despite its being carried out by improvised means (regular civilian cars commandeered in the area or called to the Tomb).

The claim of Dr. Stati of El-Mokassed Hospital regarding the refusal of Hadassah Hospital to accept injured, which was broadcast on Israel Radio and afterward all around the world, was totally unfounded. Moreover, the medical authorities of the military administration, as well as the Health Ministry and Hadassah Hospital offered assistance (airlifting to hospitals in Israel, supplying medicines, offering hospitalization in Israel, which were turned down by the non-governmental Arab hospitals, for non-medical reasons.

The conclusions of the French and Egyptian doctors are not worthy of their authors, since they were based on superficial examinations which appear clearly biased [this issue is elaborated in chapter 2.5, sections

(17) and (18) (of the full Report in Hebrew)].

In light of this, there is no room for drawing additional conclusions.

5. The Border Police

(a) The level of discipline of the groups operating in coordination with the army, upon whose cooperation the army relies, and upon which its deployment is based, is worthy of focused and intensive attention. The picture which emerged we found to be totally unsatisfactory, both generally and specifically.

One unit of Border Police which served at the Tomb of the Patriarchs within the framework of the forces providing security at the site, was replaced due to a lack of discipline and to a failure to accept the authority of the IDF officers commanding the guard shifts. The situation which we discovered concerning the conduct of the unit which replaced this first unit, is worrisome. Poor allocation of responsibilities and shifts in advance, waking up late, reporting for duty late, a vehicle in disrepair, contradictions in the instructions given by officers, and other similar circumstances, would be unacceptable in a civilian body charged with any organizational function; how much more so in a body of a military nature, which must diligently perform its tasks fully and with precision.

Moreover, we have already noted the importance of the soldier’s duty to bring deficiencies to his superior’s attention. Those in charge at the Tomb of the Patriarchs tacitly accepted a few minutes tardiness in the morning (as occurred on the days preceding the 25 February, 1994), and did not immediately report the matter, or bring it to anyone’s attention. The Border Police commanders were not diligent in checking the Border Policemen’s reporting for duty. Army and Border Police commanders thus contributed to the undermining of discipline, the expression of which was, on the critical day, lateness in arriving of about half an hour. Anyone who does not eliminate late arrival of five minutes, can assume that discipline in reporting for duty will deteriorate. Slight tardiness inevitably leads to considerable lateness, and it is only a question of time before a serious mishap occurs. There is no such thing as partial discipline. Moreover, if accompanied by bad luck, the considerable tardiness will occur at the worst possible time.

The duty to conduct ongoing inspection of performance, was in this case, the responsibility of both Border Police and army commanders. AS the well-known saying goes: "If you have given an order but have not ensured that it is carried out, it is as if you had never given the order." Matters cannot be expected to work themselves out, nor will everything "be okay". Without supervision, it can be assumed that things will not be as they should.

In short, those in charge of discipline must act – and quickly – to deal with the root of the problem which led to the fact that the Border Policemen’s reporting for duty on time could not be counted upon. A situation must not be allowed to develop, in which there is no guarantee that a given unit will perform its appointed tasks precisely, and on time. It is similarly the responsibility of those who determine procedure, orders and timetables, both in the IDF and the Border Police, to supervise in order to monitor the level of performance of, and compliance with instructions.

We have not raised anything new in what we have said here. Rather, we have simply repeated basic and obvious matters, which unfortunately appear to have been neglected.

6. The Israel Police and Coordination with the IDF

(a) In August 1992, in response to an IDF request (by O.C. Central Command, Major General Danny Yatom), a policeman was stationed at the Tomb. Initially, it was to be for a three-week trial period. Following the instructions of Assistant Commissioner Moshe Mizrahi, it was decided that a policeman would be present on potentially sensitive days, as well as on Fridays and Saturdays. A patrol car was sent on Mondays and Thursdays. The trial period [actually) ended a few months later. In November 1993, the police were asked to expand their activity at the Tomb of the Patriarchs, a request made during a meeting at the office of the late Major General Nehemia Tamari, then O.C. Central Command. In light of this request, Police Assistant Commissioner Mizrahi decided to dispatch a patrol car which would be parked near the Tomb, rather than to post a policeman inside. On 25 January, 1994, during a visit of O.C. Central Command Danny Yatom to the Judea brigade, it was agreed, verbally, that a policeman would report for duty at the Tomb every morning. The agreement was not given to the Police in writing. On 31 January, 1994, Brigade Commander Colonel Meir Kalifi wrote to the commander of the police station in Hebron, reminding him of the O.C. Central Command’s visit, and of the agreement regarding the stationing of a policeman at the Tomb, and emphasized the fact that a policeman had not been reporting there for duty. The evidence suggests that this letter, forwarded by the commander of the police station to the Police Assistant Commissioner, was never answered. In short, the Police adopted a different mode of operation, which seemed to them to satisfy the request for the presence of a policeman at the site. This was done without coordinating the method of implementation with the army, and without expressly notifying any authorized army officer in a position of command, neither at the Division, nor at the Brigade, nor at the Tomb, nor at the Company responsible for security at the Tomb. This reflects an unacceptable situation; the failure of the police station to reply to the Brigade Commander’s letter concerning the policeman’s failure to report for duty at the Tomb was not only rude, but also, and more importantly, an indication of a lack of effective cooperation.

On the other hand, the IDF on its part, should have followed-up on their unanswered letter, as it was not merely routine correspondence but rather concerned a fault in security arrangements, the rectification of which was of great importance. The IDF should therefore have checked and double checked to get to the root of the problem, until they had received a clear response.

In the end, on the day of the massacre, the Police sent neither a policeman nor a patrol car, in keeping with its own procedures, because the patrol car had been summoned to the site of a shooting incident which had occurred at about 04:30 that morning. Still, it would have been possible to bring the policeman to the Cave at 05:00 without preventing the departure of the patrol car to investigate the shooting incident

(which, incidentally, has not been fully investigated to this day due to an error in registering the victim’s name). Furthermore, the policeman responsible for the patrol car, claims that, to the best of his understanding, there was no obligation on the part of the patrol car to appear at the Tomb on Fridays.

As has been noted, no one from the military stationed at the Tomb reported the failure of the policemen to show up, despite the fact that this had happened repeatedly between 31 January, and 24 February, 1994, inclusive, namely, even after Brigade Commander Kalifi wrote his letter to the Police. The letter from the Brigade remained unanswered. The assumption of the Police that it is not subject to the authority of the O.C. Central Command (according to the Police commander), or that it alone determines how its contribution to security arrangements should be carried out (according to the District Commander), without notifying the military, does not constitute coordination or cooperation, but rather represents parallel action along lines which never meet.

These events indicate lack of coordination and follow-up and failure to respond to problems.

7. The Command at the Tomb of the Patriarchs

(a) On the morning of 25 February, 1994, Major Stellman was asleep in his room, which is located in the building immediately adjacent to the Tomb. He was called to the Tomb as soon as the shots were heard.

We have considered whether his presence was required from the time of the arrival of the first worshipers, in light of the fact that there had been tension there on the previous evening, which resulted in the angry gathering of many Moslem worshipers. The reason for the tension was an arrangement between the Military Governor and the Waqf, which was not to the liking of some of the Moslem worshipers. According to this arrangement, due to the holiday of Purim and the reading of the Purim Scroll in the Isaac Hall, Moslem prayers in the hall on Friday evening would begin only at 20:00. Following an incident in Abu-Dis, which ended in the deaths of a number of members of Az-A-Din Al-Qassam [of Hamas], emotions ran high among the Moslem worshipers (about two hundred), who shouted hostile slogans ("Qassam", "kill the Jews") [at the Jewish worshipers], making it necessary to call in army and Border Police forces. According to one of the Moslem witnesses, the Jews also shouted hostile slogans. The Jewish worshipers left the Isaac Hall at the appointed time, Moslem prayers began at 20:00, and things calmed down. Since this incident occurred during the [Moslem holy] month of Ramadan, Major Stellman acted that same evening to have one of the [Moslem] inciters, arrested by the police, released. At the close of [the Moslem] prayers there was, according to Major Stellman, no fear of further tension, until the following day, when prayer services of both Jews and Moslems, each with many participants, were scheduled. Nevertheless, in the early morning, at the time when a large Moslem service was scheduled, only a (small] group of Jewish worshipers would be present. He therefore, felt there was no danger which required his presence in the Tomb itself.

He nonetheless decided not to take his weekend furlow as planned, and to remain with the unit, along with his second in command, at least for Friday.

Under ordinary circumstances (even considering the usual tension between the different communities of worshipers in the Tomb), his presence in the complex would have been sufficient, enabling him and his second in command to arrive within minutes, as in fact happened.

Stellman’s decision to remain in his room, but within the complex, was within the boundaries of his discretion. We believe however, that it would have been preferable, if within the boundaries of his discretion, he had chosen to be present at the Tomb during all of the Friday Ramadan prayers, at which large numbers of worshipers were expected, taking into account the intelligence reports regarding potential attacks by Hamas. When hundreds of worshipers arrive, one cannot compare the commander’s physical presence to the ability to summon him from elsewhere – something which always wastes precious time, during which events do not stop.

The presence of the commander of the site, within the Tomb of the Patriarchs on Fridays during [the month of] Ramadan, along with regular contact with the force providing security, could have raised the level of readiness.

8. Initial Appraisal of the Situation

(a) We do not believe that anyone can be blamed for not having foreseen the fact that a Jew would plan and carry out a massacre of Moslems in the Tomb of the Patriarchs. Those in charge of security at the Tomb were given no intelligence reports that an attack by a Jew against Moslem worshipers could be expected, particularly since intelligence reports warned of the opposite: an attack by Hamas. Therefore, there was concern about an attack by Arabs against Jews. At a time when only Moslems were praying, with a mere handful of early-morning Jewish worshipers present – many of whom were not young – in the adjacent Abraham Hall, fear of an attack against Moslem worshipers did not, and need not have occurred [to anyone].

Regarding supervision of the entry of worshipers into the Isaac Hall, and the prevention of Jews from entering the hall, it must be taken into account that, although over the years, there have been arguments, sometimes over entry during prayers into one hall or another, never in the twenty-seven years since 1967, have weapons been used by Jews against Moslems.

Of course, after the fact, the picture regarding the specific case at hand appears different, generally speaking.

In light of the conclusion which arises from this fact, we did not deem it fit to attribute negligence to any of the various levels of military command responsible for activities within the Tomb. This conclusion however does not render superfluous our recommendations and instructions regarding the appropriate decision-making process with respect to the deployment of security forces in the Tomb and the arrangements employed there.

The arrangements within the Tomb, which determined the manner of deployment in the face of any expected danger, were decided upon from time to time at military staff meetings. Emphasizing the principles employed in gathering the data, and examining the subject, serves to underscore the importance of methodical and focused consideration. Our comments refer to basic issues, which are the province of anyone preparing a situation-assessment.

We must preface our comments with a general note. In the military, immediate decisions are often required, which serve as a basis for immediate action. At times, any delay causes harm. There are however, circumstances in which it is possible to thoroughly examine the issue, scrutinize the data, hear all opinions, conduct discussion, and draw conclusions [based upon all of the above]. In other words, not every problem requires a "heat of the battle" decision, and not every issue must be solved during the course of a short patrol, at an accelerated pace. There are subjects which merit consideration and thought by the commanders in charge, prior to taking a decision.

The decision-making process should usually comprise a number of essential stages, which are the tangible expression of the exercise of authority while dealing with a defined issue: defining the goal of the situation-assessment; collecting and integrating data (including the various and even contradictory professional opinions, if they exist); examining the significance of the data (which in the case of contradictory premises, also entails examination of their respective merits and faults, including questions of possible cost or damage, and their measurement in accordance with the desired aim); and finally formulating a decision. Such a process ensures that all relevant considerations are taken into account, that every claim is given fair examination, and that a decision is formulated, which can then stand up to the test of judicial and public scrutiny (High Court of Justice 297/82, Berger v. Interior Minister, P.D. 37(3), vol. 29, p. 49).

We have made no startling revelations here. Rather, we wished to emphasize that a distinction should be made between cases in which an urgent decision is required, without comprehensive discussion, and those in which orderly situation-assessment is called for. There are cases in which a hasty decision, without examination, carries the danger of failure. One must be able to distinguish between the different types of cases and to enjoy, as far as possible, the advantage of methodical and thorough preparation and thought. Generally, orderly thought and examination are to be preferred to clever improvisation.

In the case at hand, concerning the Tomb of the Patriarchs, its procedures and security, it would be advisable to adopt this thorough method, and to make decisions regarding deployment at a sensitive site, safeguarding of a holy place, and prevention of inter-religious and international complications, in a more thorough manner, which is usually the safest as well.

9. Carrying Weapons in the Tomb of the Patriarchs and the Arrangements for Prayer Services

(a) In Chapter 3.5 [of the full Report, in Hebrew], we specified the instructions regarding the carrying of weapons into the Tomb of the Patriarchs. There we reviewed the change in orders, whereby army personnel, Kiryat Arba residents and other Israelis were gradually allowed to carry weapons inside the Tomb of the Patriarchs. From what we stated there, the fundamental change in instructions was made after the Beit Hadassah murders. In the past few years, permission was granted to Israelis carrying weapons to bring them into the Tomb of the Patriarchs; except for a period when, in effect, carrying weapons there was temporarily halted at the initiative of the commander of the Tomb following a number of incidents in which IDF soldiers were threatened with weapons by extremist Jews.

As a rule, weapons should not be permitted in a place of prayer. However, carrying weapons inside the Tomb was a result of the security situation in the area. Not just since the beginning of the Intifada, but even before then, there were fatal attacks on Israelis (the Bet Hadssah murders, the murder of Aharon Gross, et al), which led most of the Jews who travelled in and around Hebron to carry weapons on a regular basis. Moving around without a weapon created a personal risk. Whereas the security force in the Tomb of the Patriarchs did not cover, due to its limited number of personnel, all of the halls and other areas of the Tomb, the times of Jewish and Moslem services coincided more than once, and there was no ban on Moslems entering the Tomb while Jewish services were going on. Thus, it was reasonable not to disarm the Jews upon entering the Tomb, so as not to leave them vulnerable.

They were, however, requested to remove the magazines from their weapons, and were forbidden to carry a cocked weapon. This regulation was not enough to prevent the use of a weapon since the magazine could have been put in, and the weapon cocked, on the spot.

The presence of people carrying weapons inside the Tomb did indeed create a risk that weapons would be used in the event of a flare-up, where the person carrying the weapon was not rational in his behavior.

Nonetheless, there existed, as mentioned previously, a personal risk [to Jews] in moving around the city and the Tomb without a weapon. In the past, the scales tipped in favor of adding more weight to the issue of personal risk, and to the administrative difficulties entailed in leaving weapons at the entrance to the Tomb. Therefore, weapons were allowed to be brought into the Tomb.

(b) However, the lesson learned from the massacre is that upon reopening the Tomb, weapons should not be permitted. Alternative means must be found to provide personal safety both to the Jewish and Moslem worshipers, and this can be achieved by increasing the internal security force in the Tomb and by other means. In other words, the case before us illustrates that it is appropriate to reinstate the ban on carrying weapons inside the Tomb and to require that all weapons be handed in [to security personnel] before entering the Tomb of the Patriarchs. At the same time, security procedures, to be specified in our recommendations below, should be implemented inside the Tomb of the Patriarchs, which would make it unnecessary for Jews to carry weapons inside the Tomb, and which would enable effective security to be maintained in another way. In this way, the use of weapons inside the Tomb for harmful purposes will be prevented.

It should be added that the arrangement permitting Kiryat Arba residents or other Jewish citizens to carry weapons into the Tomb of the Patriarchs is not what made it possible for Goldstein to commit the massacre. Goldstein did not rely on this permission, and he wore his army uniform with the insignia of rank, creating the image of a reserve officer on active duty. As someone who served in the Brigade, he would not have been prevented from carrying a weapon inside the Tomb, even if an ordinary citizen would have been prevented from doing so under the same circumstances.

To conclude this point: we think that when the Tomb of the Patriarchs reopens, it will be necessary to adopt arrangements, specified in the chapter on recommendations, which will prevent citizens and soldiers, not serving on the staff of the cave or on guard duty, from carrying weapons inside the Tomb.

To remove any doubt, it should be made clear that army personnel – except for the staff of the Tomb of the Patriarchs and its guards – will also not be permitted to carry weapons inside the Tomb.

(c) Arrangements for Jewish and Moslem prayer services in the Tomb of the Patriarchs were organized according to a division of the site according to various halls. With regard to the Isaac Hall, this involved the presence of Jews and Moslems in the same hall at the same time, and sometimes there was a continuous chain of alternating Jewish and Moslem services in the same hall. The separation of Jews and Moslems in the Isaac Hall was accomplished by way of metal dividers which did not prevent passage from one side of the partition to the other, nor did they prevent the prayer services or conversations on one side, from being heard on the other.

There was, therefore, friction due to complaints about the disruption of services, the sudden appearance of a large number of Moslems behind the dividers in the Isaac Hall during Jewish services and the like. The Moslems, on their part, complained that rugs were damaged (by pouring acid on them), and those responsible have yet to be caught.

As mentioned previously, services were held simultaneously in different halls. However, as the inquiry into the case before us indicates, there was no effective barrier preventing passage between the halls or opening of the doors; yet the plans for guarding the Tomb required the posting of one Border Policeman in the Abraham Hall, adjacent to the door of the Isaac Hall, and two Border Policemen at the main entrance to the Isaac Hall.

It should be noted here that the military authorities had in the past asked to install locks on the doors between the halls, and at a certain stage there was even a decision to use electronically closing doors, but the Waqf objected to it.

A lesson learned from the massacre, and also from past experience, indicates that the prevention of friction and disputes requires effective separation of the worshipers of both religions. In our recommendations, we will make a number of suggestions regarding this matter.

(d) On this issue we learnt from the testimony presented before us, primarily by those who in the past had served as commanders of the Tomb of the Patriarchs, in various periods, during which there were worshipers from both religions who were extremists and who engaged in brinksmanship, in order to encroach upon the other religion’s prerogatives (on the part of the Jews, for example, opening the doors in contravention of arrangements governing times when the other religion’s services are in progress, breaking rules and not accepting the authority of the commander of the site or the guards on duty; on the part of the Moslems, for example, directing a funeral through an area where the services of the other religion were going on). Preventing incidents such as these is, of course, the duty of the guard in the Tomb of the Patriarchs. However, it would also be appropriate to adopt a decisive policy – previously used to a limited extent – which in principle prohibits entry into the cave of anyone threatening security and order by provocative behavior. There is no room for compromise in any matter related to permitting entry to violent and aggressive elements. Anyone who does not accept the army’s authority in full, or who disrupts established practices, or who harms other worshipers and who acts provocatively, must be prohibited from entering the Tomb as a security precaution, and if circumstances warrant it, he should be prosecuted.

(e) The conclusions here lead directly to the next issue: soldiers doing their compulsory service or on active reserve duty who come to the Tomb of the Patriarchs for designated periods often find it difficult to contend with the problems that arise in a sensitive place such as this. Moreover, orders that would have been easily carried out before the massacre, will be more difficult to implement following it, notwithstanding the uncertainty over what form the conflict between the two religions will assume in the future. For the reasons mentioned above, an extensive deployment of guards will in the future be necessary in all of the halls of the Tomb of the Patriarchs, both when prayer services are in progress, and when no worshipers are in the Tomb.

At the same time, alongside the determination to follow guidelines, the guard detail must have understanding, experience in dealing with worshipers and visitors, including a generous approach, good manners, an ability to handle sensitive situations and a respectable appearance in order to instill a sense of authority.

Therefore, we will propose in our recommendations the idea of a permanent "Tomb Guard" which will oversee the security of the inside of the Tomb of the Patriarchs, providing stability to this force, and enabling it to rely on veteran officers with more experience in overseeing prayer services and visits.

10. Regulations Governing Opening Fire

(a) The regulations governing opening fire were raised before us numerous times after it was first mentioned in Colonel Meir Kalifi’s statement, in Colonel Galant’s report and later by Deputy Commander Meir Tayar in his testimony before us.

The intention of those who set the regulations for temporary procedures relating to disturbances was to cover circumstances in which Jews were involved in disturbances (demonstrations, blocking intersections, settlements without IDF approval, etc.). The evidence does not suggest that anyone intended to prevent security personnel from opening fire on an individual who was committing a serious crime. In the latter circumstances, the general instructions on opening fire in the case of a life-threatening or serious crime apply. In such cases, opening fire is permissible if there is a reasonable concern that failure to take this exceptional measure, which is equal in severity to the damage that is trying to be prevented, will result in a threat of loss of life or bodily harm. These instructions are based on what is stated in sections 22

(self-defense), 22a (necessity) and 22b (exceptions) of the Penal Law, 5737 – 1977, and regarding military offences committed by someone subject to military jurisdiction, are based on sections 17(17) and 17(18) of the Military Judgement Law, 5715 – 1955. With regard to opening fire, the interpretation of the court which limits and restricts the action, is formulated in the decision of this court, in First Sergeant David Anconina v. Chief Military Prosecutor, 88/468, P.D. 44(2) 353, p. 372, and applies, where the practice in use until then was condensed according to the decision in the case of Gold v. the Attorney General 53/57, P.D. 7, p. 1126.

The instruction, in accordance with its heading, was not intended by those who gave it, nor did have it as its purpose, to allow for deviations from the norms which apply under Israeli law.

The special constraining instructions regarding firing on Jews in the event of disturbances were required also by the objective circumstances in Judea and Samaria; Arabs are forbidden to carry arms. Israelis are permitted to carry weapons, and this is even essential due to the security situation which prevails in the area. When a soldier appears on the scene and sees a Jew aiming his weapon to fire, he usually cannot know on the spot – without any explanation – if the individual is shooting in response to something else, in self-defense against a terrorist attack, or if it is premeditated shooting directed at something and initiated by the gunman, which would be viewed as an offence for which there is no defense under criminal principles the of responsibility as set out in the Penal Law, 5737 – 1977.

On the other hand, if a soldier sees an Arab resident carrying a weapon and shooting, the factual assessment of the situation is that he is shooting in order to carry out an attack.

The differences in these potential circumstances formed the basis of the instruction; however, the method in which this was conveyed to the soldiers, and even more so, the explanation given to the soldiers were lacking. They created confusion between cases of public disturbances, and cases where criminal offences were being committed, between shooting in self-defense and shooting intentionally at a soldier or other person, Arab or Jew, who was not a threat to the soldier.

In Chapter 6, we made it clear that a simple instruction should have been formulated, most importantly, one that was clear and understandable by all those to whom it was directed; the required clarity should, of course, also convey the purpose of the order, as well as the constraints dictated by the guidelines. Instructions governing opening fire cannot be ambiguous, or open to different interpretations. When it becomes apparent that the instructions are not clear, they should be amended immediately.

We have already noted that there is no justification for different guidelines for opening fire in cases of disturbances and criminal offences. That is to say, different guidelines for the IDF and for the Israel Police.

Naturally, none of this can take away from the requirement to issue special military orders with regard to the rules which apply in cases such as ambushes or other military operations.

What was not done when the guideline was initially set forth must be done now. In other words, it is necessary to issue a clear and understandable guideline whose language corresponds to what is valid according to the law which applies in Israel, while also corresponding to the authority of the soldier serving in the territories as an enforcer of the law.

11. Law Enforcement

(a) Shortcomings were discovered in the area of law enforcement, the details and implications of which are dealt with in detail in Chapter 5 [of the full Report, in Hebrew] above.

We accept the premise that in the absence of effective law enforcement, there can be no effective government. In an atmosphere where every man does as he sees fit, without taking a real risk that he will bear the consequences if he deviates from what is permitted, the proper functioning of the authorities responsible for efficient control on the ground, is impaired. The Supreme Court noted years ago that the rule of law is not an artificial, ephemeral creation. it must have tangible and daily expression in the very existence of binding normative arrangements, and in their practical application to all (High Court of Justice 428/86, Barzilai v. the Government of Israel, P.D. 40(3), vol. 505, p. 554). Insistence upon equality, and upon the creation of a general atmosphere of trust and security, are basic requisites for the existence of the rule of law. As it is stated there:

"Orderly government without dedication to the rule of law, is inconceivable, for it is the rule of law which builds the

bulwark against anarchy, and ensures the existence of order

within the state. This order serves as the basis for political

and social structures, and for the safeguarding of human rights. These do not exist in an atmosphere of lawlessness. National security also relies upon the rule of law, both in its ensuring domestic order, and as an expedient in creating the means with

which to contend with threatening elements. There can be no

organized action by any social unit, nor can there be

discipline, without normative standards, drawing upon the

binding legal directives" (p. 555).

With regard to the issue of law enforcement, a number of actions need to have been taken: a)ongoing and efficient coordination between the bodies involved in investigation and bringing to trial, i.e. the army and the police; b) the establishment of procedures and directives regarding investigation and adoption of legal action; c)constant follow-up of investigations and their results.

In the material brought before us, we found no information regarding efforts during the years 1981-1988 to prepare coordination procedures; the first topic mentioned above. Though practical proposals were raised by the Attorney General, in a letter dated 16.5.83, to the Minister of Defense, it appears from the material presented to us, that written procedures were drafted only in September of 1988.

The follow-up of cases under investigation did not include examination of each individual file. Dissatisfaction with the disposition of cases was therefore, based upon statistical data, and not necessarily upon actual examination of each and every file in order to determine from the file itself whether to adopt the police recommendation to close the case, or whether to indict based upon the material gathered. It is regrettable that no authorized body carried out a detailed review of the cases closed, in order to prevent unfounded decisions – if any existed – and to exert influence, by the very existence of a monitoring and controlling body, upon the nature of the decision taken in actual cases. General comments, including expression of dissatisfaction with the situation, could have had only a partial effect upon changing it.

The conclusion which arises from the material before us is that a number of circumstances combined to hinder law enforcement: lack of coordination between the army, the Civil Administration and the Police; the weakness of the Police in terms of the shortage of manpower allocated to operations in the territories, and particularly a shortage of investigation personnel; the objective difficulties faced by the investigating bodies, operating in an area subject to the Intifada; the lack of expertise among the soldiers in handling primary investigation of criminal incidents.

The Police operated with limited manpower, especially after most of the policemen resident in the territories, resigned. The overall conditions in the territories also hindered the Police’s ability, as described in Chapter 5 [full Report, in Hebrew].

A misconception arose, according to which local victims of crime had only themselves to blame, if by their behaviour (such as endangering police officers trying to carry out their duty), they obstructed police investigations.

The Police also believed that it had no obligation to investigate unless the victim of the crime personally filed a complaint, and that a complaint filed by a soldier who witnessed the crime, for example, was not sufficient. This approach is contrary to the one accepted under our law regarding the manner of opening an investigation, as it finds expression in the Criminal Procedures Law (Consolidated Version), 5742 – 1982, and is also contrary to common sense, particularly in circumstances in which there is reason to assume that the victim fears filing a complaint with the police. This approach caused frustration and provided a distorted picture of the method of law enforcement, both among soldiers who filed complaints as eye-witnesses to crimes, and among the potential complainants, tarnishing the image of the military government as the body responsible for law enforcement. It also constituted a sort of voluntary abdication of effective control on the ground. On the other hand, the reduction of effective action against the active elements of the intifada

(such as throwers of rocks and Molotov-cocktails), provided fertile ground for claims by Jewish residents that equality seemed to have disappeared with regard to law enforcement against the disturbers of the peace among them, in response to incidents of the Intifada.

The answer to these difficulties in our opinion, is clear and simple: the law must be enforced with rigor, decisiveness and equality, against anyone who breaks it, and no one can excuse his actions with the fact that another crime has been committed and that its perpetrator was not caught or prosecuted. There is no principle whereby investigation and punishment of crimes must be carried out in accordance with the order in which they were committed.

This is not to detract in the least from the duty to eliminate attacks against Jews, from shooting to rock-throwing.

(b) The investigation of Israeli citizens is, in accordance with the existing allocation of authority, the jurisdiction of the [Israeli] Police, and the authority to try them lies with the Israeli courts. In order to achieve sufficiently thorough investigation, the police must allocate appropriate manpower, numerically speaking, and assign suitably trained personnel to the tasks. Detailed coordination procedures between the IDF and the Police should include [clear] definition of the areas of responsibility and modes of cooperation and coordination between them – including the receipt of army reports regarding criminal activity, the taking of statements from soldiers, the gathering of evidence at the scene of the crime, et cetera.

Policy regarding all aspects of criminal investigation and prosecution must be identical to that applying to crimes committed in any other area administered by the authorities of the State of Israel.

Chapter 9. Recommendations

1. Arrangements for Prayer and for Security at the Tomb of the Patriarchs.

In accordance with the fundamental principles, which lie at the heart of the prayer arrangements at the Tomb of the Patriarchs, both Moslems and Jews may pray at the Tomb. We accept these principles. Nevertheless, in light of the lessons to be drawn from the massacre, it is necessary to cancel or to change some of the practical arrangements which were in force in the past. In our recommendations, we were guided by the following principles: first, it would be wise to prevent friction between Jews and Moslems, arising among other reasons, from the fact that prayers are held alternately in the same places, and Jewish and Moslem worshipers come into contact with each other, due to a tight prayer schedule, [in itself] the result of the fact that worshipers share the same prayer halls at short intervals. This at times has resulted in power struggles which should be prevented; second, the possibility of an attack by Jews against Moslem worshipers must also be taken into account, and not only the contrary, which is as it was in the past. Perhaps the danger of such attacks has even increased; third, sophisticated electronic security devices should be installed; fourth, it will be necessary to station a permanent force on security duty, trained to handle the sensitive and unusual circumstances which arise at a place of worship, which is sacred to the two religions.

Based upon these premises, we recommend, first and foremost, that arrangements intended to create complete separation between the Moslem and Jewish worshipers be adopted, in order to ensure the safety of all worshipers, and to prevent friction, disputes and acts of violence.

We do not believe that the Commission of Inquiry can, or should in this case, work out a detailed proposal, based upon the allocation of places of worship within the Tomb, and the demarcation of [prayer] schedules; this is so, since such a detailed plan should be worked out on the ground, following attempts to conduct a dialogue with the religious bodies concerned. we will indicate here only guidelines, according to which the framework of the proposed arrangements will be constructed. They are the following:

1. (aa) Separate entrance gates will be set aside for Moslem and Jewish worshipers.

(bb) At the entrance gates to the Tomb, sophisticated detection

and surveillance devices will be installed, in order to monitor everyone entering [the Tomb]: worshipers and visitors, Jews and Moslems.

(cc) Jewish and Moslem worshipers will be separated from each

other, and members of one religion will not be permitted to

enter an area in which prayers of the other religion are taking

place at that time.

(dd) If required for security reasons, in the opinion of the commander of the Tomb, he may prohibit entry of worshipers

entirely, at a specific time.

2. Concerning the implementation of arrangements for separate prayer, the following two alternative proposals were raised during discussions by the Commission, regarding the method of separation at the prayer sites. We recommend examining each of the proposals, and choosing the one which is most feasible, and which provides the greatest possible safety for all worshipers.

(a) The first alternative is based upon holding prayers at separate times, in such a manner as to ensure that Moslem prayers will not take place at the same time that Jewish services are being held. Moreover, members of one religion will not be allowed to enter the Tomb while prayers of the other religion are taking place in any of the prayer halls. In other words, Jews and Moslems will not be present simultaneously in the Tomb.

(b) The second alternative is based upon the possibility of conducting prayers simultaneously, but in separate halls. Complete separation would be ensured by implementing the following principles:

(1) The presence of a member of one religion in a hall in which prayers are being held by the other religion will be prohibited.

(2) Installation of electronic devices, which would prevent

passage from one hall to another (e.g. effective closure of

doors, et cetera). Doors at the gates and between the halls will possess, to the extent possible, electronic systems,

controllable from a central location. Doors will be added if

needed (e.g. in the passage between the plaza and inner

courtyard).

(3) Deployment of an appropriate internal security force, which

would completely prevent passage from one prayer hall to

another.

(c) Regarding the second alternative above, we would like to add for the sake of clarity: the proposal’s point of reference was that there is nothing to prevent any prayer hall in the Tomb, sacred to the two religions, and used according to the status quo in the Tomb for public worship on specific days, from being used in the future as well, under the same conditions in force today; this however, only on the condition that there be a buffer of at least one hour between the end of one religion’s prayer service and the beginning of that of the other religion.

This proposal does not recommended that any part of the Tomb which could be used by members of both religions, be placed out of bounds; subject to the arrangements and restrictions now in force. However, when the same hall serves members of both religions at different times, it must be ensured, as stated above, that at least one hour pass from the end of the prayer service of the first group.

2. The Tomb Guard Unit

(a) Security outside the Tomb will be provided by a regular army unit or by a reserve unit.

(b) A special unit will be established to serve as the "Tomb Guard". This unit will be responsible for security at the entrance gates and inside the Tomb. The unit will operate within the framework of the IDF

(military Police or other unit), or the Border Police.

Members of the force will serve at the Tomb for a minimum of one year, unless it is decided to change the deployment, or to shorten the service of a particular guard.

(c) Members of the "Tomb Guard" will have the authority to make arrests, as does any soldier or policeman.

(d) Members of the guard will be carefully selected. They will be trained for their sensitive duty, and their physical appearance, discipline, and courteous deportment toward worshipers, will be ensured.

(e) The force, as stated, will be deployed at the gates and throughout the Tomb. It must therefore be large enough to cover the entire area of the Tomb. Security in any given hall will be provided at all times by at least two soldiers working together, and not by a single soldier.

3. Carrying Weapons inside the Tomb of the Patriarchs

(a) Our recommendation is that entry into the Tomb by individuals carrying weapons be absolutely prohibited and that civilians or soldiers not carry weapons inside the Tomb, except for the special security force operating inside the Tomb or for a backup unit which is called in the event of an emergency.

(b) Arrangements for depositing weapons at the entrance to the Tomb should be made. They will apply on Saturdays and holidays as well.

(c) Responsibility for overseeing the depositing of weapons will lie with the commander of the Tomb who will be assisted by the guard unit.

4. Security Supervision at the Tomb of the Patriarchs

(a) During an emergency, the guard unit will operate as an additional backup and alert force outside the Tomb.

(b) Effective devices for detecting weapons should be posted at the gates.

(c) In the event of life-threatening situations (fire, attack etc.), exit via all gates will be possible.

(d) All activities in the Tomb will be adequately monitored by closed circuit television. The closed circuit television system will have audio and video recording capabilities.

(e) First aid procedures in the Tomb will be established and fire extinguishing and first aid equipment will be available on the site.

5. Visits to the Tomb of the Patriarchs

Visitors will be permitted to enter the Tomb during designated hours, but the commander of the site can decide that the number of visitors at a given hour will be limited, as circumstances and events dictate. If, in his opinion, security concerns require it, the commander of the Tomb may prohibit altogether the entry of visitors for a specific period.

6. Enforcement of the Law

(a) It will be established in the procedures that the full authority over, and responsibility for, investigating and trying Jewish residents and other Israelis, lies with the Israel Police. There will be no change in existing procedures in this matter with regard to other residents of Judea and Samaria.

(b) All aspects of the role of the Police should be clearly defined and sufficient manpower should be allocated to enable them to fulfill their functions.

(c) Coordination between the army and the Police should guarantee military assistance for the Police either by providing military escorts or in other ways, and by establishing a steady flow of information on offences and maintaining order, which will facilitate Police investigations.

(d) It is suggested that the budget for Police operations in the territories be included directly in the overall Police budget, thereby freeing the Police from dependency on the Civil Administration budget.

(e) To open a case, the rules set forth in the guidelines of section 59 of the Criminal Procedure Law (Consolidated Version), 5742-1982, will apply, according to which the Police open an investigation when they are informed of an offence in any way, not only when the injured party lodges a complaint.

(f) The handling of investigations, including the guidelines for closing a case due, "to lack of public interest", or to insufficient evidence, will be done according to the rules designated in the law mentioned.

It is proposed that the Attorney General establish procedures for coordination between the Police, the State Attorney General’s office, and the District Attorney’s office which will guarantee supervision and follow-up of cases, including overseeing every decision regarding the closing of a case, the issuance of indictments, and the conduct of court proceedings. The Attorney General will designate an individual to conduct this monitoring.

(g) The Police will look into the possibility of opening a police station in every major Jewish settlement in Judea and Samaria.

(h) Since law enforcement is the central role of the Police, and since policemen are better trained in handling disturbances of the peace, it will be preferable, whenever possible, to employ Police officers

(including Border Police), to deal with disturbances on the part of Jews, rather than regular army personnel or reservists.

7. Use of Weapons

(a) It is suggested that the open fire instructions be reformulated in a clear manner, with reference to disturbances and violent offences.

(b) In Judea and Samaria, a standard version of the regulations governing opening fire will be set out, which both the IDF and the Police will follow.

(c) It is suggested that an order be issued stating that a citize who uses a weapon in his possession, must immediately report his use of his weapon at the police station nearest to where the incident occurred, or to his home.

(d) At least once a year, or after unusual events, a review will be conducted of the policy of distributing weapons to the Jewish citizens of Judea and Samaria.

8. Briefing and Relaying Intelligence

Intelligence activity is essential as a means of preventing organization by terrorist groups, which by its nature is conducted in secret. However, it is suggested that in each case, the military, Police or command level beyond which the warning information will not be passed, be considered. This should also be expanded to include the briefing of lower level Police or army echelons than is the practice today, in order to enhance their understanding of terrorist acts and their ability to prevent them.

9. Disciplinary and Organizational Conclusions

There is nothing in our recommendations detailed above which detracts from the obligation of the relevant authorities to identify the disciplinary and organizational deficiencies and weaknesses detailed in this report, and to take the necessary steps required to remedy them.

Chapter 10. Epilogue

The massacre at the Tomb of the Patriarchs in Hebron was a base and murderous act, in which innocent people bending in prayer to their maker were killed. It is an unforgivable act, which caused inconsolable grief to the families of the fallen and injured victims, several of whom were permanently disabled.

The massacre was one of the harshest expressions of the Jewish- Arab conflict.

We were asked to investigate the massacre and to determine findings and draw conclusions regarding the circumstances related to it. Thus, in our investigation, we covered the circumstances surrounding the massacre and its results, and we also dealt with certain general issues which, while not directly related to the massacre, were part of the circumstances indirectly related to the event. We discussed these issues in an effort to remove every obstacle and impediment to, and to assist in the maintenance of, the just administration of government.

We presented the lessons which must be learnt from this tragic incident so that, as far as possible, the repetition of criminal acts such as these can be prevented. We made a series of recommendations meant to assist in returning things to normal both in the Tomb of the Patriarchs in particular, and generally in Hebron.

Let us hope that our inquiry and our report will indeed contribute to that end.

Chapter 11. Publication of the Report

According to the guidelines set out in section 20(1) of the Commission of Inquiry Law, this Report will be made public after it is submitted to the Government. The Report submitted to the Government will include the protocol of our hearings, as well as all exhibits.

The protocols of the Commission’s discussions were taped in full in accordance with the decision of the Chairman of the Commission. The protocols of the open sessions and the exhibits not classified for reasons of state security will be open for the review of anyone interested. In accordance with regulation 8(2) of the Commission of Inquiry Regulations (Procedures), 5730 – 1969, we have decided that the right to review the protocol of the closed sessions and the exhibits that are classified for reasons of state security will be given to whomever the Cabinet decides.

This report was signed on 13 Tamuz, 5754 – 26 June, 1994.

Meir Shamgar
Commission Chairman

Eliezer Goldberg
Commission Member

Abd el Rahman Zouabi
Commission Member

Menachem Yaari
Commission Member

Moshe Levy
Commission Member