The government announced on Monday that it would not form a state Commission of Inquiry (COI) into its failures in the October 7 massacre. It said this decision follows the cabinet directive last 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 will propose a law to establish a special committee that would represent the whole spectrum of public opinion, 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.
Petitioners requested from the High Court of Justice over the past few months to force the government's hand. The government has 90 days to update the court on its progress.
In a letter to the government sent earlier on Monday, ahead of the meeting, Attorney-General Gali Baharav-Miara said it must soon decide, and that “the government's refusal to establish a concrete decision on a state COI is damaging, and places us farther and farther from the truth.”
The issue is the nature of such a committee, which is what has split political officials and the public.
A state commission of inquiry is a public committee established by the Knesset, usually on the authority of the Knesset's Constitution, Law and Justice Committee, after it has been greenlit by the government. Its chief purpose is to restore public faith in the government, which is also why it is usually all public.
The Supreme Court president makes the appointments and is considered the highest objective authority on an issue demanding such a probe; once the government establishes the committee, it cannot have any further involvement with it.
The other way to open a state COI is by the direction of the State Comptroller, who can order its establishment to the Knesset's State Control Committee. This method has been used less; since the law was passed in 1968 permitting the creation of state COIs, 16 were created by the government, while four came from the State Comptroller.
On June 27, 2024, petitioners filed to the High Court to demand the creation of a state COI to investigate October 7. After a hearing on December 11, the judges requested an update within 60 days regarding 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 a state COI is “the most obvious and efficient legal tool available to properly investigate October 7,” Baharav-Miara wrote in her Monday letter.
She 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, government 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 have argued that one of the reasons the war is being prolonged - longer than necessary - is to avoid such a probe. Fuchs added that, during the meeting, initiatives were proposed for an investigative body that would be created once the war is over.
Following this meeting, the High Court ordered a governmental response by May 11, next week. A government meeting on the matter is set for today.
However, the A-G continued since the February meeting, and the circumstances have changed: the more time passes, the more precarious the establishment of such a committee will be, as well as its effectiveness.
She added that the ongoing war is not an excuse, as the State Comptroller's Office is itself conducting its own series of probes on October 7 - all while the war continues.
If a COI were to be established now, it would only begin its investigations within at least a few months, plus 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, she explained, 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 a COI, 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 a COI.
The Supreme Court president appoints all members of state COIs, and the head of the committee will always be either the Supreme Court president, a district court judge, or a retired judge.
A proposal by President Isaac Herzog issued a few months ago had both moderate activist Chief Justice Isaac Amit and staunchly conservative Deputy Chief Justice Noam Sohlberg charged with forming the committee - in a nod to those skeptical of Amit - in an effort to grant broad legitimacy to the committee, and by doing so, to its findings.
The committee, once formed, will call witnesses to testify and has the authority to summon any information that may aid in the investigation, even if it is classified.
Once the committee 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.