A commission of inquiry for October 7 – which type?

At some point soon, there must be an official inquiry into October 7, for the day itself and the events leading up to it. A democracy cannot function without transparency about its most critical events, whether they be successes or failures. October 7 was certainly such an event. On this point, there appears to be unanimous agreement between the Left and the Right in Israel. There are two issues in dispute, however: first, the timing of the inquiry; and second, the type of inquiry.

The Left wants an inquiry immediately. If a commission were established today, it would likely issue its preliminary report in the summer of 2025, and a final report at the end of 2026 or in 2027. Everyone is interested in the preliminary report, but the final report, when it comes, would likely be ignored. The main argument for immediacy is that the people of Israel have been traumatized, and healing requires an early review. Further, if one believes the war will end by mid-2025, the commission report would coincide with the end of the war.

The Right wants the inquiry to be launched only when the war has ended, which would likely mean issuance of the preliminary report in late 2025 or early 2026. The main argument for the later date is that the commission would likely be divisive, and division is something we should avoid, at least while the war rages on. Further, delay of a few months does not matter, and in the Right’s view, the real motivation of early timing is to bring down the government so as to advance the date of the next election, currently scheduled for October 2026.

If the decision on timing is made by the government, the launch date will be put off. If the decision is made by the president of the Supreme Court, then the date will almost certainly depend on who is appointed president. The political Left wants to appoint Justice Yitzhak Amit as president of the Supreme Court – he is known to be a liberal, and would likely advance the date. But Justice Minister Yariv Levin, a staunch Likudnik, prefers Justice Yosef Elron, who is a conservative, and would likely wait until the end of the war.

Timing is important, but perhaps an even weightier issue concerns the type of inquiry. There are two main types of commission that might be suited for the current inquiry. These is the state commission, favored by Yair Lapid and the political Left; and the government commission, favored by Benjamin Netanyahu and the political Right. This is a case in which selection of the structure will almost certainly determine the nature of the result – either pro-Left of pro-Right. None of this is explained in the Israeli press, neither in English nor in Hebrew, yet it is a critical question for our political future.

The two forms – state commission and government commission – differ on five criteria: creation; composition of members; scope of inquiry; power of compliance; and nature of the reports.

A state commission is created by the government. However, the political Left feels that if Justice Amit become chief justice, then he will be able to compel a state commission by arguing that any other form, and any delay, would be “unreasonable.” If the Supreme Court does try to impose this form, and if the government objects, then Israel could finally face the so-called “constitutional crisis” we have feared these many years. Needless to say, if the conservative Judge Elron is appointed president of the Supreme Court, then there will be no state commission, and the crisis could not occur.

Anti-judicial overhaul demonstrators protest near the Supreme Court building in Jerusalem, last year. The protest movement generated regular, significant social gatherings, offering its participants a sense of purpose, cohesion, and belonging, says the writer. (credit: YONATAN SINDEL/FLASH90)

Assuming a state commission is called, in whatever way it is created, its members will be appointed by the president of the Supreme Court. The composition will be heavily judicial. Consider, for example, the Agranat Commission of 1973-74, which investigated the events leading to the Yom Kippur War. The members were two judges still sitting on the Supreme Court, the state comptroller, and two former chiefs of staff of the IDF.

The scope of a state commission’s inquiry is defined by the government in theory; but as a practical matter, once launched, the government has no influence on whatever the state commission chooses to investigates. The state commission has full subpoena powers to compel the appearance of witnesses and the producing of physical evidence. The state commission has no limits on the nature of the reports that it may issue. The Agranat Commission, for example, issued reports that included factual findings, recommendations for termination of individuals (the firing of IDF officers, and resignations of political figures), and recommendations for structural changes in both the government and the IDF. The recommendations were accepted – Golda Meir’s government resigned, senior officers were compelled to resign, and the structural changes were implemented.

How would a state commission like this work for October 7?

There would likely be five members, almost certainly at least two judges, and likely one or two senior IDF officers. The members would be selected by Chief Justice Yitzhak Amit, who would appoint figures of the Left, including, as chairwoman Esther Hayut, former chief justice of the Supreme Court. Judge Hayut battled Netanyahu for years on issues related to judicial reform. The reports, both preliminary and final, would almost certainly call for the resignation of the government and an early election. This is the reason that the Left favors a state commission.

The second option, favored by the political Right, is a government commission. Such a commission would be appointed by the government, which would also determine the composition of the members, the exact scope of inquiry, the power of compliance (subpoena or not), and the nature of the final report.

As a realistic example of what might happen, consider the Winograd Commission that investigated the Second Lebanon War (2006). This was clearly a government commission, but it was granted very broad powers. The members of Winograd were appointed by the government, formally by defense minister Amir Peretz, but in reality by both Peretz and prime minister Ehud Olmert. The members of the commission included one retired judge, two professors, and two retired generals. The commission issued its preliminary report on April 30, 2007. Prior to publication, the chief of staff of the IDF had already resigned, almost surely in anticipation of the Winograd preliminary report. This report also called for the prime minister and the defense minister to resign, both of whom refused, which they likely would not have done with a state commission. Olmert and Peretz could have restricted the scope of the report, but they chose not to do so. They did, however, reject the recommendations.

How would a government commission work for October 7?

Netanyahu has already stated that a government commission of inquiry should include members of the government, members of the opposition, and some representation for bereaved families. Such a composition could be done in a government commission if the opposition and the government were to agree on the members, which they should do for the welfare of the state. The scope of inquiry could be as broad or as narrow as the appointers wish, and the report could include only findings, or also recommendations for individuals and/or structural changes. A government commission does not have automatic power of subpoena, but that can and almost certainly would be granted at its formation.

The best commission, whether state or government, would be one where both sides – the government and the opposition – agree on the composition of the members, the scope of inquiry, and the nature of the reports. Such a commission could truly bring together the people of Israel. Unfortunately, it is also extremely unlikely. Lapid has said explicitly that he will never accept any government commission suggested by Netanyahu. Members of the Likud have explicitly said they will never accept a state commission. In the coming months, you will see many articles concerning a commission of inquiry for October 7, but that is where the matter stands now.■

Larry M. Goldstein is a lawyer in Israel and frequent commentator on social affairs.