Adv. Yotam Eyal
Adv. Yotam EyalINN:YE

Yotam Eyal, Adv., is CEO of The Legal Forum for Israel

Why are we against a State Commission of Inquiry?

Since the beginning of the war, there has been a demand that a State Commission of Inquiry investigate the events that led to the colossal failures of October 7th. We, at the Legal Forum for Israel, think that it is absolutely necessary to investigate what led to the enormous failure in which so many of the citizens of the State of Israel were tortured, murdered and taken hostage. So why are we opposed to a State Commission of Inquiry?

In the State of Israel, according to the Commissions of Inquiry Law, there are two types of commissions of inquiry – a Parliamentary Commission of Inquiry and a State Commission of Inquiry. A Parliamentary Commission of Inquiry is as its name suggests - it is composed of Members of the Knesset from the coalition and the opposition. Similar to that of a committee in the Knesset, it has the authority to summon people to appear before it but is unable to sanction those who refuse to cooperate and refuse to answer questions.

In addition, a great disadvantage of a Parliamentary Commission of Inquiry is that, by virtue of it being composed of members of the Knesset, clear political biases and interests might seep into the investigation, particularly where problems and failures may be found within the political echelon. In the case of the disaster that occurred on October 7th, it is clear that a significant failing occurred amongst the political leaders, including the Prime Minister and the Defense Ministers of recent years.

A State Commission of Inquiry is much more powerful than a Parliamentary Commission of Inquiry, for it has the ability to compel people to appear before it and provide documents that the committee demands. A State Commission of Inquiry is appointed by the President of the Supreme Court, it is the President of the Supreme Court who determines its composition and the chairman of the committee is a judge or a retired judge.

And it is the central role of the President of the Supreme Court and the fact that the chairman is a judge which, similar to the problems with the Parliamentary Commission of Inquiry, would make the State Commission of Inquiry ineffective and would raise many questions regarding biases and interests. For just as it is clear to everyone that the political level must shoulder blame for the failure of 7.10, so it is clear that the judicial system, especially the Supreme Court, is responsible for much of the blame. It is doubtful that a State Commission of Inquiry appointed by the President of the Supreme Court who determines its composition will properly examine the involvement of the judiciary in the security issues that led to the failures on October 7th.

For many years, the Supreme Court has intervened time and time again in what are clearly security issues. It has prevented the IDF from using various tools that would protect its soldiers and it has ordered the release of bodies of dead terrorists that could have been used as bargaining chips.

The judicial system had a large influence on the manner in which the army formulated its rules of engagement, which had an effect on the collapse of the security belt in Gaza that allowed terrorists to come right up to the fence day after day before October 7th .

Even after the horrific events of October 7th, the judiciary has continued to interfere. On the very day that of the attack, when thousands were being slaughtered, hundreds of lawyers in the reserve service were called up. (They prevented Netanyahu from declaring war until the government approves, ed.) A number of civilians (former soldiers) who dropped everything when they heard what was happening, who did not wait to be called up by the army, who drove down south and entered places where there were thousands of Nukhba terrorists (Hamas’ special forces unit), where the army was nowhere to be found, and who fought against the terrorists at great risk to themselves, were charged with murder(!) because they killed terrorists!

Even after October 7th, the Supreme Court has continued to interfere in military matters. One absurd example is that they have accepted and ruled on many appeals relating to the prison conditions of the Nukhba terrorists, including the quality of the food that they are served.

The problem with having a much-needed inquiry conducted by a State Commission of Inquiry is compounded when reviewing the opposition of the Supreme Court to the government during the last two years regarding the government’s attempt to restore a proper balance between the judicial and legislative bodies of government. On what basis can it be assumed that the President of the Supreme Court will be able, unlike members of the Knesset, to be objective, to not let biases creep into the inquiry and appoint people to the commission who will truly investigate the failures leading up to October 7th including the role of the judiciary and the Supreme Court?

An example of biases seeping into an investigation is found in the “Citizens Committee of Investigation”, a committee established by a number of groups identified with the protest movement against the government. All of the people who appeared before the committee were identified with the opposition to the government and the bias was obvious. One glaring example occurred when former Prime Minister Yair Lapid, who is currently the leader of the opposition, appeared before the committee. Not even one question was asked to him about the consequences of his actions and his responsibility for what happened, including, for example, the confiscation of weapons held in the communities of the Gaza envelope while he was Prime Minister.

Another question regarding the establishment of a commission of inquiry is the timing. Is it beneficial to set up a commission of inquiry while we are fighting a difficult war on seven fronts that will require those who are running the war such as the Prime Minister, the Minister of Defense, the Chief of Staff, the Chief of Army Intelligence and others to focus their attention and time to the inquiry instead of focusing on the war?

We at the Legal Forum for Israel are in favor of a commission of inquiry to investigate the failures that contributed to the horrific events of October 7th and that everything should be done so that such a thing does not happen again. We believe that whoever was responsible for what happened should pay a price.

In our opinion, however, in addition to the two types of commissions of inquiry according to the Commissions of Inquiry Law, another form of commission should be established, a commission that is made up of people who have no connection whatsoever to what happened on October 7th, once the war situation allows for it. A State Commission of Inquiry appointed by the President of the Supreme Court is not the solution and will not be able to provide the full picture as to what caused the colossal failures that led to the events of October 7th.