A Two-Tiered Process of Accountability for October 7
A state commission of inquiry is a vital step, but it is up to the public to ensure Israel's leaders are truly held accountable.
Photo by Avshalom Sassoni/Flash90
Since October 7, 2023, there have been calls in Israel for the establishment of a state commission of inquiry to investigate this major security failure. Last week, the parents of the fallen IDF field observers, young women serving near the Gaza Border on October 7, made a painful plea for the immediate establishment of such a commission.
Is it possible to compel the government to establish a state commission of inquiry? Recently, a petition was filed in a lawsuit demanding that the government be required to do so with respect to the events of October 7. The law states that the government may establish a commission of inquiry, but it is not obligated to do so. To date, the court has refrained from compelling the government to establish a state commission of inquiry, arguing that the authority to establish such a commission resides in the broad discretionary power of the government. Therefore, the court would intervene in a governmental decision on this matter only in "exceptional and rare cases, the likes of which have not come before the court and are unlikely to come before it." In another petition, a minority of judges argued that the government's discretionary authority to decide on the establishment of a commission of inquiry, and specifically a state commission of inquiry, is not an absolute discretionary power, and must be exercised based on relevant considerations and within the bounds of reasonableness. Failure to exercise this authority could, in certain cases, become unreasonable to the point of undermining the essence of the matter.
The events of October 7, 2023, appear to be one of those exceptional and rare cases where it is unreasonable not to establish a commission of inquiry. Attempting to establish a governmental investigation committee (whose members are appointed by the government and with limited inquiry powers) or inventing another type of committee to avoid forming a state commission of inquiry, is questionable. A commission of inquiry is an independent, quasi-judicial body, the members of which are appointed by the chief justice of the supreme court, and it is headed by a supreme court or district court judge, with the power to summon and investigate witnesses and collect documents. Therefore, it is possible that the court will intervene in the government’s decision as to whether to establish a commission of inquiry and additionally on the question of what type of committee to establish.
A state commission of inquiry is established in order to investigate "a matter of crucial public importance at that time." In the case of October 7, there are multiple issues requiring investigation: the causes and factors that led to the security failures, the conduct of security forces on that day and afterward, the management of the war from an operational perspective, actions in Gaza under international law in shadow of the International Criminal Court proceedings in the Hague, the negotiations regarding the hostages, the response of various government ministries, the handling of evacuees from both the south and north, and other investigations into operations and policy.
Establishing a state commission of inquiry is vital for our past, present, and future. On October 7, the Israeli public experienced a national trauma, one we are still living through to this day. Anyone who has dealt with trauma knows that in order to cope with it, it is first necessary to understand what happened, to ascertain the facts, the course of events, who did what, and what transpired. The ability to translate the horrific event into words, into a sequence of events, into a narrative, is essential for us as human beings to cope with trauma and is also critical for us as a nation. If we can, by clarifying the facts, deal with the terrible failures of October 7 within our familiar frameworks of cause and effect, of reasons and consequences, and of failures and their rectification, we can begin processing the trauma and raising ourselves out of the dark tunnel of that fateful Saturday. Establishing a commission is also important to restore public trust in the political system both in the present and to learn lessons for the future.
Prior experience demonstrates that public and political pressure on the government to establish a state commission of inquiry can lead to its formation. We recall President Yitzhak Navon's call for the establishment of a commission of inquiry after the Sabra and Shatila massacre (1982), and the public pressure that led to the formation of the Or Commission to investigate the events of October 2000, despite Prime Minister Barak's attempt to establish other types of committees.
However, the public must not sit idly by after such a commission is established or simply wait for its findings. The public needs to demand personal responsibility and accountability from the political and professional echelons here and now, regardless of the state commission of inquiry. We must not diminish the public discourse to a discussion of criminal "guilt" or "innocence." A state commission of inquiry is not a court; it does not decide who will lead this nation. Its important role is to show the public and the Knesset who is unfit to be a leader, who failed in their duties, who is responsible for the failure, and to provide recommendations designed to prevent such failures from recurring. However, there is no need to wait for the commission’s report, which could take years, even if it publishes an interim report as did the Agranat Commission following the Yom Kippur War (1973). It is important to remember that the interim report of the Agranat Commission absolved Prime Minister Golda Meir and Defense Minister Dayan of responsibility for the failures leading to the Yom Kippur War. Yet continued public pressure led to Golda Meir's resignation shortly after its publication. Conversely, the Winograd Commissions report on the Second Lebanon War (2006) used harsh language against Prime Minister Olmert, while he continued to serve due to the absence of public and political pressure. Thus, it is not the commission's report that determines reality; it merely helps to clarify and outline such a reality. As always in a democracy, it is the public that must show those out who have failed them.
This article was published in the Times of Israel.