High Court once again strikes down Levin’s pick to oversee Sde Teiman leak investigation

The High Court of Justice ruled on Wednesday that Justice Minister Yariv Levin’s second nomination of an official to supervise the investigation into the Sde Teiman video leak, retired district court judge Yosef Ben Hamo, was invalid, sparking heated criticism from Levin in the latest confrontation between the government and the judiciary.

The court has now struck down Levin’s two picks for the ad-hoc role, further ramping up the already considerable tension.

In a unanimous ruling by the three judges on the panel, the court pointed out that in its ruling in November invalidating Levin’s selection of State Ombudsman for Judges Asher Kula, it gave strict and explicit instructions for who would qualify to supervise the investigation.

In particular, the court noted that its original ruling stated that the investigation supervisor must be a “senior public official,” who is an expert in legal affairs, and whose job is closely connected to criminal investigations or prosecutions.

Levin subsequently picked Ben-Hamo to oversee the investigation, but the court ruled against the appointment since retired judges are not public officials in the civil service.

In October, former military advocate general Yifat Tomer-Yerushalmi admitted that she had authorized the leak of a video purporting to show the abuse of a Palestinian security detainee by IDF soldiers at the Sde Teiman military detention facility from July 2024.

Levin appointed Kula to oversee the criminal investigation of the leak, asserting that Attorney General Gali Baharav-Miara and her senior staff had a conflict of interest, but the court struck down Kula’s appointment while nevertheless upholding Levin’s right to select a supervisor for the case, albeit with strict conditions.

In Wednesday’s ruling, written by Justice Yael Willner, a conservative, she insisted that the condition that the role be given to a senior public official was crucial, and was stipulated by the court to mitigate the problem of a serving cabinet minister being involved in the staffing of a criminal investigation, when such investigations must be apolitical in nature in a normative democracy.

“The necessity of the conditions set forth in the judgment stems from the dramatic difficulties raised by the [first] ruling… in view of the overarching principle of the independence of the criminal prosecution system,” wrote Willner.

She added that the court had specified that a senior public official fill the role “to blunt the significant difficulties” of “intervention at the ministerial level in the conduct of a specific criminal investigation.”

This, she wrote, was because “concerns were heightened” that an ad hoc appointee “could serve as the long arm of the minister,” which were mitigated if the appointee was a senior public official.

“When the [justice] minister selects someone from outside the civil service… the minister’s selection under these circumstances – regardless of the identity of the person selected – inherently increases the concern that extraneous political considerations underlie the appointment,” wrote Willner.

Willner also wrote that the stipulation that the appointee be a “senior” official was also crucial, since under normal circumstances, investigations into senior officials such as the military advocate general are conducted by the most senior officials in the prosecution’s office.

The other justices on the panel were Supreme Court President Isaac Amit and Justice Chaled Kabub.

Levin denounced the ruling and accused Willner, Amit and Baharav-Miara of a conspiracy against him, noting that Willner had headed the High Court panel which ordered him to hold a vote in the Judicial Selection Committee on appointing a new Supreme Court president back in January, after he refused to do so for nearly 16 months.

Amit was elected president in the vote, in accordance with the principle of seniority by which all Supreme Court presidents have been elected since the founding of the state.

“Now the debt has been paid,” alleged Levin.

“Amit and Willner are shooting down, one after the other, the judges who were appointed to supervise the [Sde Teiman] investigation. “They are preventing the truth from being revealed in connection to the involvement of Baharav-Miara and those under her authority in the military advocate general affair. This is the nucleus of control that repeatedly thwarts the clarifying of the truth. Those who call themselves gatekeepers and guardians of the law are actually guarding each other.”

The Movement for Quality Government in Israel described the ruling as an “important victory for the rule of law,” describing the appointment of Ben Hamo as “fundamentally flawed,” and claiming he had political affiliations.