High Court hears petition for Oct. 7 state inquiry: ‘Most terrible failure ever here’

The High Court of Justice heard a petition Wednesday calling for the establishment of a state commission of inquiry to investigate the failures that led to the October 7, 2023, massacre and the ensuing war, a move that the governing coalition has strongly opposed.

The petition was filed by a number of watchdogs — along with relatives of some of those killed and taken hostage — who said a commission was necessary “to draw the necessary lessons to prevent the recurrence of similar cases in the future and to restore the public’s trust.” It was heard by justices Noam Sohlberg, David Mintz and Yael Willner.

Lawyer Michael Rabello, representing the government, reiterated the position at the start of the hearing that all discussions on the matter should only take place at the conclusion of the war.

Attorney Gilad Barnea, who represented a number of families including those of hostage Matan Zangauker, murdered surveillance soldier Sgt. Roni Eshel and Staff Sgt. Yaron Oree Shay who fell in the fighting on October 7, argued that there was a need for an investigation into “the most terrible failure that ever happened here.”

“This was not a disaster, a disaster is an event caused by nature,” Barnea said, according to the Globes outlet. “This thing is humanmade, it is a failure of the State of Israel, the most terrible failure that has ever happened here.”

“Israeli citizens and residents were abandoned, kidnapped, raped. The State of Israel was not there,” Barnea said.

The petitioners told the court that a commission must be established as the government is in a serious conflict of interest by being entrusted with approving whether to investigate its own failures, Haaretz reported.

Menashe Manzuri, whose daughters Norelle, 25, and Roya, 22, were killed at the Nova festival, asked why the government did not want to find answers to what happened that day.

“How can it be that the government does not want to know how it happened that children went dancing and did not return?” Manzuri said, according to the Ynet news site. “Where is the justice? Where is the desire to know the truth? Where is the desire to correct what needs to be corrected?”

Attorney Dafna Holtz-Lechner, representing Zulat and 86 former government ministers and MKs, argued that the government should work for the public interest and establish the commission.

According to Globes, Einav Zangauker, mother of hostage Matan, interjected to say: “There is a public that is still languishing in the Hamas tunnels. Establish a committee.”

Lior Shay, the brother of Staff Sgt. Yaron Oree Shay, told the court that it needed to make the difficult decision and require the establishment of a commission.

“It is clear to me that the government is acting through bureaucratic means to thwart us from arriving at the truth,” he said, according to Maariv.

“Don’t let them escape responsibility. My brother’s blood is crying out. He was brave and you should be brave too,” said Shay, whose sibling was killed during fierce clashes with Hamas terrorists in the Kibbutz Kerem Shalom area.

“The event that happened here is extreme, it is different, and my brother was also faced with such a precedent-setting event. This event requires precedent-setting decisions,” he said.

Last week, Prime Minister Benjamin Netanyahu submitted his response to the petition, saying the court has “no authority” to order the government to establish a commission and that such an order would “shred the principle of separation of powers and the system of checks and balances” in Israel.

Attorney General Gali Baharav-Miara then broke with Netanyahu’s position against allowing the state to probe failures he and other leaders may have been responsible for.

“A state commission of inquiry is clearly the most appropriate legal tool for investigating the events of October 7 and [the ensuing war],” she wrote.

Noting the amount of time that has passed since the attack and the lower intensity of warfare in Gaza, Baharav-Miara said the importance of an in-depth inquest had only grown.

“Consequently, the need for an effective investigation that can help draw forward-looking lessons and restore public trust in [institutions] becomes increasingly significant,” she wrote.

The attorney general called to expedite the process of convening the commission, citing concerns that its effectiveness “may be compromised if its establishment is delayed for an undefined and unknown period, without at least holding an orderly discussion in the government on the matter, during which, among other things, the steps needed to prevent such harm will be examined.”

Hebrew media reported last month that Netanyahu has been trying to push legislation that would ban the establishment of a state commission of inquiry into the October 7 Hamas-led terror onslaught, in favor of a political commission of inquiry chaired by one coalition lawmaker and one opposition lawmaker.

He has repeatedly put off the establishment of any inquiry and rejected a state commission to investigate the government’s failures that enabled the deadly Hamas attacks, arguing that all investigations must wait until the fighting in Gaza ends.

Netanyahu’s filing came a week after the independent Civilian Commission of Inquiry released a scathing report that tore into the prime minister, accusing him of undermining the government’s national security decision-making process, creating a rift between Israel’s political and military leadership and leaving the country unprepared for Hamas’s devastating October 7, 2023, incursion.

Members of the committee, which was established by relatives of the victims of the attack in light of Netanyahu’s continued refusal to approve a state commission of inquiry and his insistence that he is not to blame for any of the failures, cautioned that their work could not replace that of an official probe with the power to subpoena witnesses, but said that what they had heard was extremely concerning.

State commissions of inquiry, the inquiry body that enjoys the broadest powers under Israeli law, are typically headed by a retired Supreme Court justice. Esther Hayut would be a potential choice for that role after her tenure as president of the top court ended a year ago. But Netanyahu is reportedly vehemently opposed to her appointment, given her outspoken criticism of his government’s contentious effort to radically overhaul the judiciary.

At a press conference on Monday, Netanyahu again ruled out any inquiry until after the war, and again rejected a state commission of inquiry. “A state commission is not acceptable to a considerable portion of the people. A government inquiry is not acceptable to another portion,” he said. “What is needed is to find a different mechanism that will get to the truth and that is acceptable to most portions of the people.”

On Wednesday, a motion submitted by the National Unity party that would require the Knesset to hold a plenum discussion on establishing a state commission of inquiry was rejected 43-51, and removed from the Knesset agenda.

Arguing in favor of the resolution, National Unity chairman Benny Gantz accused members of Netanyahu’s ruling coalition of “trying to cover up in order to evade responsibility” and “selling the security of the state for political needs.”

“Our people are not stupid, they understand exactly what you are trying to do. It will not help you,” he continued. “We see that you are ready to dismantle Israeli society, because of the lust for power.”

“The massacre cannot be whitewashed. An investigation of an event of this magnitude requires an organized and legally defined committee, which has expertise, has the time, the knowledge infrastructure and the resources to investigate. A state investigation committee is the only mechanism that exists to investigate this,” Gantz said — arguing that a commission should begin probing Israel’s failures beginning with Hamas’ victory in the 2006 Palestinian legislative elections.

Speaking on behalf of the government, Regional Cooperation Minister David Amsalem cast doubt on the impartiality of the judiciary, saying that a “real, impartial investigation committee needs to be established.”

“We will not establish a state commission of inquiry. We will establish a people’s commission of inquiry…will ultimately investigate the whole truth, including the judges,” he said.