High Court inches toward comptroller in battle with IDF over October 7

The High Court of Justice is finally inching toward State Comptroller Matanyahu Englman’s side in his year-long battle with the IDF and Attorney-General Gali Baharav-Miara over the probing of failures related to October 7 and ongoing security problems.

In a hearing and decision on Monday, justices Noam Sohlberg, David Mintz, and Yael Willner gave the IDF three weeks to make more compromises with Englman, after which, if there is no deal between the sides, it is threatening to issue a binding decision.

This small progress comes after Englman himself took the unprecedented step of pleading to the justices in a classified hearing, as opposed to one of his lawyers speaking on his behalf.

It is incremental progress because three weeks is longer than the one week or even 24 hours the justices have given when they want to put pressure on a party, but it is also much less than the three months the justices provided for negotiations in July.

In mid-July, the court told the sides to negotiate and reach a deal by October 31.

This was such a long period of time that the military essentially ignored the comptroller, especially because from late July to late August, and again since mid-September, the Lebanon and Iran crises loomed larger. 

High court pressures IDF

In July-August, the killing of Hezbollah chief Fuad Shukr and Hamas chief Ismail Haniyeh in Tehran took precedence; in mid-September, the IDF was busy decapitating much of Hezbollah, and on October 1, the Islamic Republic attacked Israel head-on.

However, The Jerusalem Post understands that in his time with the judges, the comptroller helped convince them that his intentions to probe were pure and that if kept limited, it would not help Prime Minister Benjamin Netanyahu avoid a later state inquiry. 

It could conceivably help fix some problematic issues. Publicizing information on security gaps related to the Nova festival, east Jerusalem, the drone threat, and other home front defense issues could potentially save lives in the future.

However, the High Court could always force the parties to engage in further negotiations once October 31 arrives.

Since August, it has been relatively clear that the latest version of the fight between IDF Chief of Staff Lt.-Gen. Herzi Halevi and Englman is not just over how busy the military is but also about who will determine the narrative of who is at fault for October 7.

Halevi has been worried that Englman will place all the blame on the IDF and leave Netanyahu relatively untouched, despite the prime minister being one of the fathers of the concept that maintaining a deterred Hamas in Gaza was a good plan. In any case, Halevi wants a broader state inquiry of Netanyahu and the government.

Englman has noted that, for better or for worse, Netanyahu is not allowing a state inquiry and that the country cannot afford to have had no independent, larger review of the disaster, even if a state inquiry might be better and could happen at some later, distant point.

The fight started back in January. From October 7 until then, Englman did not broach the issue of investigating the October 7 failures. As long as tens of thousands of IDF soldiers were fighting in northern Gaza, Khan Yunis, and southern and central Gaza, he knew that it would be problematic to try to move the issue forward.

However, as of January, the military claimed operational control of northern Gaza and alluded to being close to crushing Hamas in Khan Yunis (which it formally announced by early February).

Yet, when Englman pressed to open his probe, Halevi rebuked Englman, saying that there was still fighting going on in Gaza, that the IDF might undertake a new invasion, such as in Rafah, that there were still daily exchanges with Hezbollah, and that the question of establishing a more secure reality for northern residents could lead to a much larger conflict.

With all of these issues, he said that the military being subjected to probing by the comptroller would distract from the ongoing war.

Further, he noted that the comptroller had never probed the IDF mid-war and only afterward.

Englman retorted that he would focus on issues that wouldn’t require interviewing military commanders, such as security for the border villages, clearing the bodies of October 7 victims from the battlefield, and other such issues.

Englman further argued that the war was the longest Israel had fought since the War of Independence (1948–49), such that the country could not wait until an undetermined end date.

Halevi responded that it might make sense for Englman to carry out a probe, but not before the IDF carried out its own investigation.

But, from March until August, the military kept changing when it would publish its findings. In August, it decided to indefinitely delay publishing the probes, though it had committed to publishing them first in June and then in August.

There are still no near-term plans to publish the probes.

In fairness to the military, it agreed to probes on four side issues – up from two – and then up to six side issues up from four.

In fairness to the comptroller, he has agreed to hold back for longer some major issues. At the same time, he has insisted on covering 10 issues, four of which are somewhat major and which the IDF has not agreed to.

The IDF has said that the current crisis with Hezbollah and Iran leaves it too distracted to cooperate with Englman, but the comptroller may have started to convince the justices on Monday that a year into the war, the excuse of being too busy may have become too open-ended.