High Court judges challenge comptroller’s authority, competence to probe Oct. 7

In outburst, bereaved parents at hearing accuse judges of responsibility for October 7 invasion; state comptroller says probe crucial for office’s independence, Israeli democracy

The High Court of Justice strongly questioned the authority of the state comptroller to examine the failings surrounding the October 7, 2023, Hamas invasion Sunday as justices mulled petitions seeking to halt the ombudsman’s probe, which critics fear will act as a largely toothless substitute for a more substantial state commission of inquiry into the massacre.

At the heated hearing, which was punctuated by outbursts from bereaved parents, justices questioned how State Comptroller Matanya Englman had conducted his probes into the disaster thus far, upbraiding him for failing to interview Herzi Halevi, the Israel Defense Forces chief of staff at the time of the unprecedented terror assault.

And Justice David Mintz pointed out that matters of security and strategy appeared to be outside the state auditor’s purview, according to the law empowering the State Comptroller’s Office, indicating agreement with petitioners who argued that the role of the office under Basic Law: State Comptroller is to examine only the processes of agencies under review.

Englman, who was given permission to speak in addition to the oral arguments made by the State Comptroller Office’s lawyer Matan Guttman, contended that the ability of his office to probe the October 7 attack was critical for preserving the independence of his office as well as the framework of Israel’s brand of democracy.

The Military Advocate General’s Corps’ Military Defense unit and the Movement for Quality Government in Israel petitioned the High Court in September to halt Englman’s probe into the events of October 7, alleging that there were “substantive flaws” in Englman’s information-gathering processes, and arguing more broadly that the ombudsman has neither the remit or competence to conduct such inquiry.

The petitions were filed following revelations in August last year that Englman’s probe had drawn up draft reports on his review of the key issues and found Halevi responsible for at least some aspects of the catastrophic invasion, without ever having spoken with him.

Sunday’s hearing was set against the backdrop of the government’s ongoing refusal to establish a state commission of inquiry into the massacre, and a recent decision by the High Court to give the government another two months to decide how it wishes to investigate the catastrophe.

Englman insisted his probe would complement a state or government probe, not replace it.

During the hearing, two bereaved parents briefly interrupted proceedings and began shouting at the judges, accusing them of responsibility for the October 7 disaster.

“They murdered our children because of you,” one parent screamed.

A second parent yelled, “You forbade soldiers from firing on those who broke through the fence… October 7 is on your hands.”

Both were removed by security guards following the outburst.

Their comments reflect a campaign within the right-wing media and political landscape to attribute blame to the High Court for the October 7 invasion, though the court in 2018 explicitly rejected petitions against the IDF’s open-fire regulations and upheld the military’s policy of shooting those who approached the Gaza border security barrier.

Justices expressed strong reservations over the state comptroller’s claim to have the authority to probe an event of the nature and magnitude of October 7.

Guttman responded that the State Comptroller’s Office had probed aspects of the Second Lebanon War, the 2014 war in Gaza, and the 2010 Carmel Forest disaster.

It was pointed out, however, that the reports into the Second Lebanon War dealt only with failings on the home front and not core aspects of the war, while the report on the 2014 war dealt mostly with the issue of the tunnels in Gaza.

The justices also asserted that even if the state comptroller had previously dealt with military issues, that did not mean the office had the authority to do so at the time.

Justice Daphne Barak Erez also noted that Israel had never before seen an event with the magnitude of October 7, as opposed to a military operation like Protective Edge, which was initiated by the IDF.

Asked about Halevi’s omission, Guttman said comptroller staffers “met with hundreds” of relevant officials and that if they didn’t meet with some of the top officials, it was “because the factual foundation about them was clear, from our point of view.”

Judge Ofer Grosskopf said he would have expected the state comptroller to meet with Halevi due to the grave impact the conclusion of Englman’s reports would have on the former army chief of staff.

“You’re getting your information only from secondary sources, from other people,” Barak Erez said. “Maybe if you met with the chief of staff you’d see he did deal with it, and maybe the other people you met with didn’t give you the full picture.”

Speaking toward the end of the hearing, Englman made an impassioned request that the court enable the completion of his probe, arguing that the independence of the State Comptroller’s Office to examine serious failings in the country was a key component of institutional oversight and Israeli democracy.

“What has guided me during the entire review of the war is the Israeli citizen,” said Englman. “Fixing the problems [that are uncovered], with the institution of the comptroller preserving its independence and not being dependent on any official, or the establishment of another [investigative] mechanism, which we see as very important but which we do not think contravenes in any way a state comptroller review.”