IDF petitions High Court to halt state comptroller’s probe into Oct. 7 army failures

The IDF’s chief defense attorney, Col. Ofira Elkabetz-Rotstein, filed a petition on Wednesday against the State Comptroller’s Office, demanding it halt an investigation into the “core issues” surrounding the army’s failure to prevent the Hamas terror group’s invasion and attack on October 7, 2023, and other events in the ensuing war.

In the petition, the Military Advocate General’s Military Defense unit claimed that State Comptroller Matanyahu Englman was “exceeding his authority and causing serious and irreversible harm to the rights of IDF service members and to the work of any future commission of inquiry.”

However, the military defense unit emphasized that even with the requested injunction, the state comptroller would still have over 35 important audit topics related to the IDF, in connection with the events of October 7 and the war.

To that end, it asked the Supreme Court to issue a conditional order instructing the comptroller to cease audit procedures on the core issues, or to apply in these matters the protections and procedural rights customary in a commission of inquiry.  It also requested an interim order to freeze the audit procedures until a final decision is made on the petition.

In the petition, it argued that the core issues the probe intends to examine — defense on the Gaza Strip border; work processes within the intelligence community and political echelon in light of information about Hamas’s offensive plans; the course of events on October 7, 2023; actions of the political echelon, IDF and Shin Bet; and the policy of understandings with Hamas — clearly exceeded the state comptroller’s authority, as they pertain to core policy, national security, and strategic matters.

These were all matters of vital public importance, the military defense stressed, which fall under the jurisdiction of a state commission of inquiry.

Furthermore, the petition claimed that any IDF servicemembers harmed by the audit process would suffer severe damage to their reputation and professional future, which would then be etched into the records of the state, without being granted the basic procedural rights required for a fair process.

These rights are afforded to individuals before a state commission of inquiry, but not to those under review in state audit procedures, the petition noted.

It also warned of irreversible harm to the work of a future commission of inquiry, despite the question of establishing such a commission not yet having been decided.

It argued that when the state comptroller collects testimonies, reveals documents, and formulates conclusions on core issues, he causes severe contamination of the future testimony-gathering process, impairs the ability to reach the truth independently and impartially — all in a non-public procedure, conducted behind closed doors and away from public view.

It also warned of the risk of conflating conclusions among various investigative bodies, which would harm public trust and hinder the ability to draw clear lessons from the national disaster.

Disagreements between the IDF and the state comptroller over how best to investigate the events surrounding October 7 are not new, and have persisted since Englman first announced the probe into “multi-system failures” in December 2023.

The military claimed that the probe would divert the attention of senior commanders from prosecuting the then-active wars with Hamas and Hezbollah — a position backed by former IDF chief of staff Herzi Halevi.

Halevi had instead endorsed the establishment of a state commission of inquiry into the failures, which Prime Minister Benjamin Netanyahu has refused to entertain as a possibility.

But reports had indicated that Halevi’s successor, Lt. Gen. Eyal Zamir, had been more willing to work with Englman on the matter, and may not believe a state commission of inquiry was necessary.

In March, after entering the post, Zamir met with the comptroller several times, and the pair agreed on a probe that would cover the army’s conduct leading up to the attack, as well as the intelligence and operation branches and the IDF Southern Command.

Wednesday’s petition, however, appeared to suggest that Zamir was not as supportive of the comptroller’s investigation as he had appeared to be.

‘Unfounded and scandalous petition’

Elkabetz-Rotstein emphasized that the petition did not seek to prevent an investigation into the events of October 7, but rather to ensure that the investigation was conducted through the correct means — which in this case, she said, is an independent and impartial commission of inquiry that operates transparently and publicly.

“The State of Israel, which experienced a national disaster of unprecedented scale, must ensure that the search for truth is conducted using the most appropriate tools, while safeguarding the rights of those who stood at the frontlines of the country’s defense during its most difficult moments,” she said.

As the government has continued to refuse to establish a commission of inquiry, the comptroller’s probe into the events of October 7 is currently the only state-sanctioned comprehensive investigation into the attack, during which some 1,200 people were massacred in southern Israel and 251 were taken hostage by invading terrorists from Hamas and other Palestinian terror groups.

The State Comptroller’s Office pointed out as much in its response to the Military Defense’s petition, and accused the IDF of disregarding the agreements forged between Zamir and Englman earlier this year regarding the audit’s framework.

Following the agreement, Englman was given the green light to continue his audit, which had been temporarily suspended in June 2024.

“One who has taken responsibility for one of the most serious failures in the history of the state is expected not to try and evade criticism,” it admonished.

“We can only hope that the High Court of Justice will reject this unfounded and scandalous petition that seeks to make a mockery of the verdict [that allowed the probes to proceed], and will not prevent the State Comptroller’s Office from continuing the audits of all levels.”

“This is in order to provide answers to the citizens of Israel about the failures of October 7 as soon as possible,” the State Comptroller’s Office stressed.

Denying the Military Defense’s assertion that the probe would interfere with a future commission of inquiry, the comptroller’s office pointed out that: “The State Comptroller Law states that the Knesset’s State Audit Committee may establish a state commission of inquiry based on a comptroller’s report.”

Critics of the government, including members of the opposition and several government watchdog groups, have expressed concern, however, that the probe by Englman, who has no legal background and was appointed to his position under a Netanyahu-led government, could seek to minimize political responsibility for the devastating October 7 onslaught.

Times of Israel staff contributed to this report.