The High Court of Justice on Thursday heard petitions seeking to compel the government to establish a state commission of inquiry into the October 7 massacre and the subsequent war, in a dramatic hearing that laid bare both the depth of judicial concern over the prolonged delay and the court’s hesitation about ordering such a step itself.
After roughly six hours of arguments, interruptions and repeated clashes in the courtroom, several justices appeared to signal that while the need for a serious investigation is no longer meaningfully in dispute, the harder question is whether the court should force the government’s hand now, just months before elections, or leave the matter to the public and the next government.
Deputy Supreme Court President Noam Sohlberg, leading the seven-justice panel after Supreme Court President Isaac Amit recused himself, said there were “very heavy costs” to a judicial order requiring a state commission of inquiry at this stage, and asked whether the work might better be left to the government formed after the election. Justice Yael Willner went further, suggesting it might be preferable to leave the matter to “the public” at the ballot box. Justice Ofer Grosskopf similarly asked why the court should not leave that decision to voters.
That apparent end-of-hearing signal came after a day in which the bench also sharply challenged the government’s position.
Representing the government, attorney Michael Rabello argued that the court had no authority to compel the government to establish a state commission of inquiry, saying such a step “does not exist in any court in the world.” He also said the government believes that, while investigation is important, now is not the time to conduct it because Israel remains in an ongoing war, adding at one point that “the main thing right now is that the State of Israel win the fighting on all fronts.”
That position drew some of the hearing’s sharpest judicial reactions.
Willner called it a “dramatic” shift, saying it amounted to the government taking the position that for now it should not investigate at all. She pressed Rabello on whether the state was really saying that only after the war fully ends would it begin investigating what happened years earlier. Sohlberg asked bluntly: “How many years can one wait?”
Grosskopf framed the issue as one that also touches the democratic process, asking whether a government can simply avoid investigating an issue that is politically uncomfortable for it, thereby denying the public information it may need as it forms its political judgment before elections.
Justice Khaled Kabub was among the most direct. He said that under the law currently in force, the state must act accordingly, and suggested that “the elephant in the room” was who gets to appoint the commission’s members. In his telling, the real dispute was the government’s unwillingness to have the president of the Supreme Court appoint the panel. He also criticized the broader public messaging around the case, saying he did not understand how the impression had taken hold that the High Court was “against the state.”
At the same time, the justices’ questions to the attorney-general’s representative showed equal concern with the limits of the judicial remedy being sought.
Court not the right body to determine scope of probe, justices suggest
Attorney Yonatan Berman, representing the Attorney-General’s Office, argued that after two and a half years the time question had run out, that continued delay was undermining truth-finding, and that under the law as it currently stands only a state commission of inquiry is truly suitable.
But several justices repeatedly pressed him on why the court should order that specific form of inquiry, rather than some other investigative framework, and whether the attorney-general would agree to a compromise based on the government’s proposed “national commission” model without waiting for legislation. He refused.
Willner made clear that, in her view, the central legal issue was no longer whether there is a need to investigate, or even whether in rare cases the court may intervene, but what the legal basis is for ordering intervention specifically as to the nature of the inquiry. She and Grosskopf also noted a practical problem: even if the court ordered the government to establish a commission, the government could still try to narrow the mandate.
Stein raised a related concern, saying that even if one assumed the government had effectively rendered the Commissions of Inquiry Law a dead letter, the court was not necessarily the right body to define the contours of a military-professional inquiry.
That institutional tension ran through the hearing from start to finish. Early on, Sohlberg pressed the government on its own earlier position, saying that if it had already accepted that some form of investigation was needed, “that check has to be cashed.” If not a state commission, he asked, then what exactly was being proposed in practice? The government pointed to draft legislation for an alternative national commission, but the justices repeatedly noted both the delay and the fact that the legislative process is still incomplete.
The hearing was also repeatedly disrupted by bereaved family members opposed to a state commission of inquiry, some of whom tried to force their way into the courtroom after being denied entry. Proceedings were suspended for security reasons after court guards intervened, and the justices were taken to a side room before the hearing resumed. During the disruptions, Sohlberg told those interrupting that “the pain is terrible and the pain cries out,” but that there had to be a limit. Later, Likud MK Tally Gotliv was removed from the courtroom after repeated interruptions.
By the end of the day, the court had not tipped its hand definitively. But the justices’ questions suggested a divided emphasis: deep skepticism toward the government’s continued delay and its latest position that investigation should wait until the war is fully won, alongside equally serious concern about whether forcing a state commission by judicial order, at this political moment, would produce the legitimacy and public trust such a body would need.
If that reading holds, the likely fault line in any future ruling may be less over whether October 7 must be investigated - a proposition that appeared broadly accepted in the courtroom - than over who should decide the form and timing of that investigation, and whether the High Court believes that answer now belongs to judges or to voters.