Cabinet rejects state probe of Oct. 7; said set to legislate ‘special’ commission instead
Attorney general tells government that state commission is best, stresses probe must have political independence; opposition says coalition continuing to shirk responsibility
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The government reportedly decided on Monday to seek to establish a “special” commission to probe the devastating Hamas-led invasion of October 7, 2023, but rejected a call from Attorney General Gali Baharav-Miara for an official state commission of enquiry, which would have the broadest powers.
In a letter to the government, Baharav-Miara said that it must decide how to investigate the failures leading up to, during, and after the Hamas invasion and atrocities that killed 1,200 people, mostly civilians, saw 251 abducted as hostages to Gaza, and triggered the ongoing war. She argued that a formal state commission of inquiry was the most appropriate body to handle the probe and that delaying a decision on the matter was harmful.
Later Monday, following a cabinet meeting on the matter, the government decided not to establish a state commission, explaining that the day before, it had approved expanding the military campaign against Hamas in the Gaza Strip and “it was not the time” for such a probe, according to Hebrew media reports.
The cabinet instead decided to advance legislation to establish a “special” state commission of inquiry which would, it said, enjoy “broad public trust,” Ynet reported.
Other Hebrew media reports were less definitive. Haaretz said merely that several cabinet ministers expressed a readiness in principle to advance legislation allowing for the establishment of a “special” state commission, whose members would be appointed in a different manner from how a regular state commission of inquiry is appointed.
At present, the members of a state commission of inquiry are appointed by the Supreme Court president, but several cabinet members made hostile comments regarding current president Isaac Amit, and said the chair of the commission who appoints its members should be approved by a two-thirds majority in Knesset, Channel 12 reports.
Prime Minister Benjamin Netanyahu has repeatedly ruled out investigating October 7 until the war is over and has firmly rejected establishing a state inquiry at all, claiming half of the public would not have faith in its findings.
Critics have alleged he seeks to establish a panel with fewer powers than a state commission and with representatives of his own choosing, because he fears a state commission — which would typically be headed by a retired Supreme Court justice — would implicate him in the disaster. A state commission is the body that enjoys the broadest powers under Israeli law, including the authority to subpoena witnesses.
Other public commissions, such as a governmental commission of examination, can be appointed, but they have narrower powers than a state commission and are seen as more political since their members are appointed by the government.
The cabinet meeting was prompted by a High Court of Justice order earlier this year that the government tell it how it intends to investigate the catastrophic terrorist attack.
The court told the government in February to provide it with an update by May 11, in the framework of petitions to the court asking that it order the government to open a state commission of inquiry into the catastrophic attack, something the government has strenuously resisted doing.
Writing earlier to the prime minister and the cabinet, Baharav-Miara said she believes a state commission of inquiry is the best framework for such an investigation due to the powers such a commission would wield in gathering information, and the transparent nature of its work.
“Other mechanisms do not fit the nature of the events being investigated, among other things, given their dependence on the political echelon, whose role in the events also requires examination,” she clarified.
There is, she said, no disagreement that the events of October 7 need to be investigated; the question is only on what form it will take and when.
Baharav-Miara stressed it is crucial that the investigation into the events be “severed” from the political echelon “in everything to do with the ability to get at the truth,” and in order to ensure trust in the results of the probe.
“The government must take a reasoned decision… and it must present its reasoning in the framework of the notice that it will provide to the court dealing with the issue,” the attorney general said.
She added that by refraining from making a decision, the government was “causing damage and harming getting to the truth.”
Following the cabinet meeting, Opposition Leader Yair Lapid said the implication of failing to establish a state commission will be that “the catastrophe of October 7 will happen again and again,” adding “if we do not investigate what led to the disaster we will not be able to learn the lessons and ensure that it won’t happen again.”
Leader of the opposition National Unity party MK Benny Gantz said in a statement that the time to set up a state commission of inquiry “was more than a year ago” and that “every moment it is delayed the security of the state is harmed.”
“The public isn’t stupid,” he said. “The only reason that a state inquiry commission is not established is the attempt to escape responsibility.”
Hawkish MK Avigdor Liberman, leader of the opposition Yisrael Beytenu party, said that Netanyahu “is afraid of a state commission of inquiry. The truth will come to light, with him or without him.”
According to unsourced Hebrew media reports, during the meeting, ministers vented against Baharav-Miara and the High Court, expressing their lack of trust in both, and the latter’s objectivity in choosing members for a commission.
Communications Minister Shlomo Karhi said it is the High Court that should be investigated, the Kan public broadcaster reported.
Far-right Settlements and National Missions Minister Orit Strock said that it is “important that the government establish an inquiry committee and say what its mandate is,” the outlet said without citing sources.
The Ynet news outlet cited Minister David Amsalem as saying that the court “is part of the issue,” while Diaspora Affairs Minister Amichai Chikli was quoted as saying there is “no trust” in the attorney general.
Economy Minister Nir Barkat of Netanyahu’s ruling Likud party said the inquiry commission should be two-thirds lawmakers “and have broad powers,” reports said. Ministers reportedly suggested that the panel should only be set up after a chair is chosen with the backing of 80 out of the Knesset’s 120 MKs, an arrangement that would give both the coalition and opposition a veto on any candidate.
Almost 19 months after the onslaught, the government hasn’t said what sort of inquiry it supports, and hasn’t taken any steps to form one.
The attorney general has in the past said that assuring the International Criminal Court that Israel would probe the war could stave off the court issuing arrest warrants on war crimes charges for Netanyahu and his former defense minister, Yoav Gallant. While it is not clear what assurances Israel gave the court, the ICC did eventually issue warrants for Netanyahu and Gallant.
Baharav-Miara’s letter to the government came as the cabinet seeks to oust her from her job. Ministers voted unanimously in March for a no-confidence motion against Baharav-Miara, in a move designed by the government to hasten her dismissal from office, citing repeated differences of opinion with the attorney general that it says have prevented effective cooperation.
In February, Likud MK Ariel Kallner unveiled what appeared to be the party’s outline for an alternative probe into the events of October 7.
According to Kallner’s plan, members of the new investigatory body would not be chosen by the president of the Supreme Court — as is the case with a state commission of inquiry — but would instead be appointed by the Knesset.
State commissions of inquiry have been established in the past to look into other military failures, including the events of the Yom Kippur War in 1973 and the Sabra and Shatila massacre in Lebanon in 1982.
A government commission of inquiry, in which the government appoints the members of the commission, was established to investigate the failures of the 2006 Second Lebanon War, although it was granted some of the powers of the more rigorous and independent state commissions, including the power to subpoena witnesses.
The Times of Israel Community.