An October 7 Commission of Inquiry Could Exacerbate Israel's Civic Tension

A country united in dissatisfaction over the lack of a clear resolution might be better than a country even more bitterly divided by the presence of a clear resolution.

Protesters during a demonstration calling for a hostage deal and against the government of Prime Minister Benjamin Netanyahu on June 15, 2024 in Tel Aviv. Amir Levy/Getty Images.

Protesters during a demonstration calling for a hostage deal and against the government of Prime Minister Benjamin Netanyahu on June 15, 2024 in Tel Aviv. Amir Levy/Getty Images.

Response
July 18 2024
About the author

Evelyn Gordon is a commentator and former legal-affairs reporter who immigrated to Israel in 1987. In addition to Mosaic, she has published in the Jerusalem Post, Azure, Commentary, and elsewhere. She blogs at Evelyn Gordon.

I can confidently answer the main question posed by Scott Abramson in his informative essay on state commissions of inquiry. Yes, such a commission will be formed to investigate the Hamas attack on October 7, because if Prime Minister Benjamin Netanyahu doesn’t do so, then the next government—almost certain to be formed by his opponents—definitely will. That’s exactly what happened the last time Netanyahu lost the premiership: the new government promptly set up two state commissions of inquiry into incidents that occurred during his tenure (a fatal stampede during the Lag ba-Omer celebrations at Mount Meron and Israel’s procurement of submarines and gunships).

But that inevitability is a great pity. Because in the current situation, far from playing the healing role Abramson attributed to previous commissions, any such commission will most likely exacerbate the divides.

In the nine months since October 7, enough information has come out that there is already broad agreement in Israel about many salient points. Everyone agrees that the army bears substantial blame for the attack, from the numerous intelligence warnings it ignored (a failure shared by the Shin Bet security service), through its inadequate deployment along the Gaza border, to the incredible fact that many of the defenders didn’t even have guns (female soldiers serving as spotters weren’t issued guns at all; kibbutz security squads were given guns, but ordered to lock them in a central armory that most couldn’t reach when the terrorists invaded). Everyone also agrees that the government bears substantial blame, from the billions of dollars in cash that it allowed and even encouraged Qatar to funnel to Hamas to its eagerness to drink the intelligence community’s Kool-Aid and then market it to the public—namely, that Hamas was deterred following a military operation in 2021 (possible but unlikely; it hadn’t been deterred by any previous operation) and was primarily concerned with improving life for Gaza’s population (ludicrous to the point of insanity: when has Hamas ever cared about that?).

Finally, most Israelis agree that the judicial reform and the protests against it probably contributed at least to the timing of the attack, by convincing Hamas that Israel was so divided it would be incapable of mounting an effective defense. Many also think it contributed to the very fact that the attack occurred and/or to the army’s multiple intelligence and operational failures. On this point, incidentally, I dissent from the majority view: I think the reform played almost no role. The attack would have happened at some point anyway, given that Hamas had been preparing it for years, long before the judicial reform was unveiled, and had invested massive amounts of time, money, and effort in it. And the IDF’s performance would have been dismal even if it hadn’t spent the previous year convulsing over the reform, because virtually every problem that has since come to light predates the reform.

What Israelis disagree on is exactly how all this blame should be distributed. Was the army more to blame than the government, or vice versa? Was the judicial reform primarily to blame, for sparking the unrest that convinced Hamas Israel was collapsing, or was it the protesters’ response, particularly the threats by army reservists not to report for duty? And since most Israelis already have firm opinions on these questions, the commission’s conclusions are almost certain to infuriate one side or the other.

Abramson argued that the tradition of respect for such commissions would mitigate this danger. But reviewing the historical record, I am less convinced. As he himself pointed out, commissions of inquiry have historically enjoyed widespread respect precisely because they “seldom engage with the issues that divide Israelis most.” The very example he cited to prove his claim of widespread respect—the Mount Meron commission—is a case in point. The members of Netanyahu’s Likud party who backed the commission could afford to be “statesmanlike” because it dealt with an issue that wasn’t of major importance to most Israelis (all the victims were ultra-Orthodox, leaving most of the public unaffected), and because it largely confined its personal recommendations to lower-level bureaucrats.

On more divisive issues, a commission’s conclusions have always been less likely to gain unequivocal public acceptance. A salient example is the Or Commission’s report on the Arab riots of October 2000. As Abramson noted, the report found that police used excessive force in suppressing the riots (thirteen Arabs were killed), which is why it barred Shlomo Ben-Ami, the minister in charge of them at the time, from ever holding that post again.

This finding of excessive force outraged many Israelis, who saw those riots as a violent insurrection that, not coincidentally, erupted on the same day as the second intifada in the West Bank and Gaza and was seemingly intended to replicate the intifada inside Israel. Among other things, the rioters shut down roads throughout northern Israel, shot at and threw Molotov cocktails at police, stoned Jewish drivers and in one case pulled a Jewish man out of his car and killed him, torched buildings and vehicles, invaded a nearby Jewish town and smashed house and car windows, set forest fires, and beat up reporters. Yet unlike the intifada, which raged for another four years, police succeeded in suppressing the riots inside Israel within about ten days. Thus to many Israelis, far from using excessive force, police had saved the country that October, and they were appalled by the Or Commission’s conclusions to the contrary.

But because the Or Commission had few practical consequences, the public could largely let it go. Ben-Ami and the entire government in which he served were already out of office by the time its findings were released in 2003, nor were any police officers ever put on trial. Though the prosecution and the attorney general duly investigated the fatal shootings at the commission’s demand, they notably concluded, in contrast to the commission, that there had been no criminal conduct by the police.

Neither mitigating factor—lack of divisiveness nor lack of practical consequences—would apply to a commission on October 7. That failure was too important to every person in the country; the commission’s recommendations would almost certainly have major political ramifications; the public is too divided on how blame should properly be apportioned; and its views, being already firmly entrenched, are unlikely to be swayed by the commission’s findings in the absence of some smoking gun that hasn’t emerged in the extensive media reporting to date.

Further exacerbating this problem is the fact, as Abramson noted, that state commissions of inquiry are appointed by the Supreme Court president, and the court itself has become a highly divisive body in recent years. As I wrote in my Mosaic essay on judicial reform last year, trust in the court divides sharply along political lines, ranging from 84 percent among leftists to 26 percent among rightists, according to the Israeli Democracy Index. Since Israelis’ opinions on how blame should be distributed also largely divide along political lines—leftists generally blame the government more than the army and the judicial reform rather than the protests; rightists generally blame the army more than the government and the protests rather than the reform—any commission of inquiry would have to walk an almost impossible tightrope to avoid upsetting one side or the other.

But on top of the risk that many on the “losing” side will reject the commission’s conclusions, trust in the court itself might also take a hit. That’s especially likely if the commission adopts the left’s views on apportioning the blame, because the commission’s members will be chosen by either the current acting president of the court or the presumptive permanent president, and both are among the court’s most liberal justices, making it easier for those on the right to attribute political bias to them.

All of the above would be doubly true should a commission be formed because the court itself ordered it. As Abramson noted, a petition has already been filed on this issue, and rather than rejecting it out of hand, the court ordered the government to respond within 30 days. That obviously doesn’t mean it will ultimately grant the petition. But if it did, given that state commissions of inquiry have the power to order dismissals and resignations, a situation could arise in which the court ordered the formation of a commission whose members the court itself would appoint and which would have the power to serve as judge, jury, and executioner over the government. That would be even more devastating for faith in the court—and in the commission’s findings—among one half of the Israeli public.

There is, of course, a solution to this problem. An Israeli commission could take a leaf from the American playbook and confine itself to fact-finding and recommendations for the future, without assigning blame or demanding that heads roll. Indeed, a future Knesset might be wise to consider enshrining such a change in law, once the furor over October 7 has dissipated enough to make disinterested discussion of the issue possible.

A commission that confined itself to fact-finding might well leave both sides of the debate unsatisfied. But a country united in dissatisfaction over the lack of a clear resolution would be better than a country even more bitterly divided by the presence of a clear resolution. And despite everything that has already come out, a comprehensive investigation into the facts would be useful even without any assignation of blame.

Unfortunately, the history of state commissions of inquiry leaves no room for optimism that this commission, whenever it arises, might exercise such modesty. Consequently, far from bringing accountability and healing, it may well bring even more division.

More about: Israel & Zionism, October 7