The government on Monday announced that it would not form a state commission of inquiry (SCI) into its failures surrounding the October 7 massacre. It said this decision follows the cabinet directive from Sunday night to expand the fighting in the Gaza Strip.
“This is not the time to investigate,” said the government. The decision detailed that the government and Knesset would propose a law to establish a special committee that would represent the whole spectrum of public opinion, theoretically guaranteeing its legitimacy.
Over the past few months, Prime Minister Benjamin Netanyahu tried to push different initiatives for a political commission of inquiry, but none yielded results.
Simultaneously, petitioners requested that the High Court of Justice force the government’s hand. The government has 90 days to update the court on its progress.
In a letter to the government on Monday before the decision, Attorney-General Gali Baharav-Miara said it must soon decide and that “the government’s refusal to establish a concrete decision on an SCI is damaging and places us further from the truth.”
The issue at hand is the nature of such an investigative committee.
An SCI is a public committee established by the Knesset, usually through the Knesset Constitution, Law, and Justice Committee after it has been greenlit by the government. Its chief purpose is to restore public faith in the government.
The High Court president makes the appointments and is considered the highest authority on issues demanding such a probe; once the government establishes the committee, it cannot have any further involvement with it.
The other route to opening an SCI is through the direction of the state comptroller, who can order the Knesset State Control Committee to establish it. This method has been used less; since the law permitting the creation of an SCI was passed in 1968, the government initiated 16, while four came from the state comptroller.
On June 27, 2024, petitioners filed a demand to the High Court for the creation of an SCI to investigate October 7.
After a hearing on December 11, the judges requested an update within 60 days on the date the government would set to discuss the matter.
On February 9, the government held its first such meeting. The attorney-general has since sent two letters to Netanyahu, emphasizing that an SCI is “the most obvious and efficient legal tool available to properly investigate October 7.
She has added that other frameworks can’t encompass the breadth and depth of the massacre, especially the government’s involvement and leadership leading up to it.
At the end of the government’s February meeting, Cabinet Secretary Yossi Fuchs called a meeting for 90 days from then, explaining that the time is not yet ripe to make such a decision, especially because of the ongoing Israel-Hamas War.
Opponents of that decision have argued that one of the reasons the war is being prolonged is to avoid a damning investigation. Fuchs added that, during the meeting, initiatives were proposed for an investigative body that would be created once the war was over.
However, the A-G continued in her letter, since the February meeting, the circumstances have changed –the establishment and effectiveness of such a committee will become more precarious as time goes on.
She added that the ongoing war is not an excuse, as the State Comptroller’s Office is conducting its own series of probes on October 7.
If an SCI were established now, the A-G explained, it would only begin its investigations within at least a few months. And most of the security officials who would testify have either resigned or will resign soon, she added.
In other words, time is running out, especially if the State Comptroller is already probing the issue, Baharav-Miara said, adding that this will “hurt the ability to arrive at the truth and could damage the rights of those investigated.”
A decision needs to be made now to “establish boundaries” of investigation and ensure protections to all involved, she wrote.
In all his years as prime minister, Netanyahu has not ordered an SCI and even prevented one from being formed after the Mount Carmel fires in 2010. In 2011, he canceled the Knesset committee responsible for government oversight reports, moving them instead to be under the auspices of the Prime Minister’s Office, which also never appointed an SCI.
The High Court president appoints all members of an SCI, and the head of the commission will always be either the High Court president, a district court judge, or a retired judge.
A proposal put forward a few months ago by President Isaac Herzog charged moderate activist Chief Justice Isaac Amit and staunchly conservative Deputy Chief Justice Noam Sohlberg with forming an SCI in an effort to grant broad legitimacy to the committee, and by doing so, to its findings.
The commission, once formed, would call witnesses to testify and would have the authority to summon any information that may aid in the investigation, even if it is classified.
Once an SCI publicizes its findings, the government must discuss its suggestions in a thorough manner, though it is not obligated to adhere to them. And, despite the built-in tension of having an external group of people probe the government, no government yet has ignored its suggestions, even if they were not all adopted.
Yonah Jeremy Bob and Eve Young contributed to this report.