High Court seeks compromise over attempts to halt State Comptroller’s Oct. 7 probes
Justices ask the state agencies opposed to the investigation, including the IDF and Shin Bet, to say whether they can agree on the less sensitive aspects of the probe
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The High Court of Justice has sought a compromise over petitions demanding the halt of the State Comptroller’s investigation into the failures of the October 7 attacks, ordering the state agencies that have opposed it to evaluate, together with the ombudsman’s office, which aspects of the investigation could be carried out even before the war ends without posing a security risk.
The court ordered the Israel Defense Forces, the Shin Bet and the Mossad, as well as other state agencies that oppose the investigation, to meet with the comptroller’s representatives and gave all parties until July 28 to determine which non-sensitive components of the investigation could be agreed upon.
The justices gave the parties until October 31 to do the same for more sensitive aspects of the inquiry.
The court also ruled that its decision from June 16 suspending any aspects of the comptroller’s investigation dealing with the IDF and the Shin Bet will remain in place until further notice.
State Comptroller Matanyahu Englman announced in December he would be conducting a wide-ranging investigation into the multi-level failures leading up to, during, and after the October 7 Hamas invasion and atrocities, including military and intelligence failures, but this was strongly opposed by several government watchdog groups who expressed concern that it would interfere with the IDF’s operational capabilities during wartime and might ignore political responsibility for the devastating onslaught.
Some 1,200 people were killed and 251 taken hostage in the Hamas cross-border assault on southern Israel, which took the government and security establishment by surprise.
The first section of the comptroller’s investigation was supposed to have focused more on civilian issues than military and intelligence concerns, such as the evacuation to hospitals of those injured in the October 7 attacks and the evacuation of the general population from the war zone in the Gaza border area, which would need to be addressed by the IDF Home Front Command and the IDF Medical Corps.
The second section of the investigation was supposed to have dealt with more sensitive issues, such as the decision to license the Nova Festival by Kibbutz Re’im close to the Gaza border, where hundreds of people were massacred, and what the security arrangements for it were.
A third part of Englman’s investigation was to have looked at the conduct of policymakers and the military on October 7 itself; intelligence preparedness before October 7; the defense posture on the Gaza border before the Hamas invasion; and the preparedness of the civilian security squads in the Gaza border region before the war, among other issues.
The court did not, however, require the security agencies to voice an opinion on the possibility of conducting those latter investigations, and the court’s order in June means Englman will not be able to proceed with them.
The court did ask the state agencies to “consider coming to an understanding” as to whether the comptroller can complete the aspects of his investigation that are nearly finished.
The Movement for Quality Government in Israel, one of the primary petitioners against the comptroller’s investigation, welcomed the court’s decision to extend the suspension of the investigation into the military and intelligence agencies, but said that it remained opposed to the comptroller’s investigation in general.
“Only an independent, impartial state commission of inquiry can conduct a true investigation and provide the public with the answers it deserves,” said head of the Movement for Quality Government, Eliad Shraga.
During the hearing, the three High Court justices presiding over the case expressed concerns that the state comptroller’s investigation would harm the IDF’s ability to concentrate on fighting the ongoing war with Hamas in Gaza.
“Any intelligent person knows that at the current time we can expect a severe problem with [the ability of the IDF] to focus [on the war while being investigated], we all understand that. How do you overcome that?” asked Justice Noam Sohlberg, who heads the three-justice panel presiding over the case.
Representing the state comptroller, Eliya Zunz Koller responded that the courts do not automatically accept claims by security agencies that a particular process would harm state security, and also pointed out that Basic Law: The State Comptroller stipulates that the State Comptroller’s Office is not subject to the government.
Justice Yael Wilner insisted, however, that “it’s not a matter of the Basic Laws, its a matter of the security of us all.”
But Sohlberg also asked Yonatan Berman, representing the Attorney General’s Office — which also opposes an investigation by the comptroller — why a state commission of inquiry would itself not distract the focus of the armed forces.
Attorney General Gali Baharav-Miara has expressed support for a state commission of inquiry, as have the petitioners, with the Movement for Quality Government in Israel even filing a separate petition to the High Court asking it to order the government to establish such a commission.
Berman avoided the question, however, noting merely that Baharav-Miara has said such an inquiry is the best forum for investigating the October 7 failures, but has not said when it should be established.
The justices also expressed skepticism over the petitions themselves, with Sohlberg pointing out that a state commission of inquiry has yet to be set up by the government, which insists that such a panel can only be established after the war has finished.
“If the war continues for many more months, when should the [comptroller’s] examination start?” Sohlberg questioned the attorney for the Ometz Movement, another of the petitioning organizations.
Sohlberg also pointed to the comptroller’s argument that as a party subject to his investigation, the IDF “has an interest” in the issue. The judge asked “if the IDF’s considerations are purely about the current war, [or] if it is also concerned about the examination and its results.”
Justice David Mintz asked Shraga, representing the Movement for Quality Government, what would happen if the government never establishes a state commission of inquiry.
Shraga sidestepped the question and insisted that there is a critical need to establish a state commission of inquiry immediately to give legal cover to the state and the IDF from legal proceedings against Israel in the International Court of Justice and International Criminal Court.
He also argued that the current state comptroller does not have a record as a jurist, which might have convinced the courts in The Hague that his investigation was a serious process that might obviate their own, and claimed in addition that Englman does not enjoy widespread public trust.
“This is a severe problem,” insisted Shraga.
