The IDF Public Defender issued an “urgent update” to the High Court of Justice on Monday, warning that State Comptroller Matanyahu Englman is advancing his officer’s probes into the failures surrounding the October 7 massacre attack into areas that are out of his jurisdiction – and must remain reserved for a State Commission of Inquiry.
The update comes on the heels of a petition that was filed in June by the public defender against the State Comptroller’s Office, along with a request for an interim order, which asks the court to preserve the status quo or regulate the conduct of one of the parties – until the case can be decided.
Last week, the office announced that it reached out to secure meetings with the most senior figures in the state, including Prime Minister Benjamin Netanyahu, former defense minister Yoav Gallant, former IDF chiefs of staff Herzi Halevi and Aviv Kohavi, and other military officials from the rank of brigadier-general and above.
All this, to secure a better grasp on the extent and breadth of the failures on the state and governance level pertaining to October 7. Some of the specific aspects Englman seeks answers to are the security outlook that created the opportunity for the attack to even take place, the protection of the Gaza border, and the state of the treatment of Palestinian prisoners since October 7, among over 35 other topics.
These topics are all at the heart of the petition filed by the IDF public defender, which it claimed are sensitive topics that can only be probed by a State COI. If these testimonies are gathered by Englman, the consistency and reliability of the testimonies gathered by a State COI would be at risk.
The public defender also views the comptroller’s moves as a breach of the rights of military servants and a threat to the integrity of any future COI.
The State Comptroller’s Office decried the “urgency” of the update, as it said these claims have been made before and have one goal in mind: “To obstruct the methods of criticism and investigation regarding October 7.” It also sharply criticized what it accused the public defender of as an attack against “a fixed guard of the democratic rule of law.”
The Office added that Englman set his sights on the goal of properly investigating the failures that led to the massacre from day one and is manifesting that goal now. It noted what it has said before, that when a State COI is ordered, the office will work with it to delineate coverage differences.
Earlier this month, Attorney-General Gali Baharav-Miara put her weight behind a State COI as the most appropriate and sound legal framework through which to probe October 7. She said that it should be done sooner rather than later, as the more time passes, the harder it will become to put out a report that is thorough, detailed, and as accurate as it could be.
In less than two months from now, it will have been two years since the massacre attack
All of this comes in the continued absence and lack of regulation for a State COI, which many bereaved families and those victimized on October 7, coalesced under the October Council, called on the government to establish.
A State COI is a public committee established by the Knesset, usually through its Constitution, Law, and Justice Committee, after it has already garnered broad support from the government. Its chief purpose is to restore public faith in leadership.
The High Court president makes the appointments and is considered the highest authority on issues demanding such a probe; once the government establishes the committee, it cannot have any further involvement with it so as to guarantee its independence and integrity.
The other route to opening a State COI is through the direction of the state comptroller, who can order it opened by the Knesset State Control Committee. This method has been used less; since the law permitting the creation of a State COI was passed in 1968, the government has initiated 16, while four came from the state comptroller.
The commission, once formed, would call witnesses to testify and would have the authority to summon any information that may aid in the investigation, even if it is classified.
State COI findings carry heavy political weight
Once a State COI publicizes its findings, the government must discuss its suggestions in a thorough manner, though it is not obligated to adhere to them. And, despite the built-in tension of having an external group of people probe the government, no government yet has ignored its suggestions, even if they were not all adopted.
The government has said that the time is not yet ripe to conduct a full investigation and also that it would want to secure the full trust of the public in the type of commission. This conflict chiefly surrounds Supreme Court President Isaac Amit and a widespread distrust of him by certain factions of the population.
In this vacuum, which has spread to the entire judiciary and is at the heart of the legislative push for judicial reforms, Englman has quietly investigated issues relating to the massacre and the state’s handling of affairs, including interviewing military officers.
The October Council said the state comptroller’s probes undercut what a State COI is supposed to do and “will prevent anyone from reaching the truth about what happened… It will allow the government to escape unscathed, a government that refuses to answer for its failures.”