Who has the right to judge Netanyahu for the events of Oct. 7?

Who was responsible for the greatest disaster in the history of the State of Israel? For those who care about Israel’s future and its security, whether in Israel or elsewhere, getting to the bottom of the catastrophe that occurred on Oct. 7, 2023, is a vital task. It’s also bound up with the sacred obligation to honor the memory of the 1,200 Israeli men, women and children who were slain in the Hamas-led Palestinian orgy of mass murder, rape, torture, kidnapping and wanton destruction, as well as those who died in the war against Hamas and its allies that followed.

In theory, such an effort would be nonpartisan and inspire across-the-board respect. Yet the notion that this objective can be achieved in Israel’s current political environment is a forlorn hope, and there’s no use pretending otherwise. At a time when the country’s politics is largely defined by opinions either for and against Prime Minister Benjamin Netanyahu, the idea that there is any such thing as an impartial panel, let alone one chosen and/or directed by the country’s judicial establishment that is locked in a bitter battle with him, is simply absurd.

An impartial commission?

That’s the context for the controversy over the Israeli government’s decision to attempt to circumvent the Commissions of Inquiry law, passed in 1968. It set up a mechanism for investigations into matters of public concern and state interest, such as those that delved into the failure of the government led by the late Golda Meir to anticipate the surprise Egyptian and Syrian attacks that began the October 1973 Yom Kippur War, or the responsibility for the 1982 Sabra-Shatila massacre of Palestinians by Israel’s Lebanese Christian allies.

The law states that the members of such commissions should be called for by the government of the day and that their membership would be determined by the head of the Supreme Court. The assumption at the time of its passage was that the high court was among the country’s most trusted institutions and that the results of any commission chosen in this manner would prompt universal deference.

This is no longer the case if, indeed, it was ever true.

And that’s why the governing coalition led by Netanyahu is proposing an alternative in which the members of an Oct. 7 commission would be chosen and split 50-50 by both the government and its political opposition in the Knesset.

To say the idea has inspired anger from Netanyahu’s political opponents is the understatement of the year. They believe that any commission so constituted essentially gives the prime minister and the Likud-led coalition a veto over any verdict that might lay the lion’s share of responsibility for the disaster, which happened on his watch, at his feet.

They are right about that. But it is equally true that Netanyahu’s opponents will never accept any judgment about Oct. 7 that doesn’t assign most of the blame to him. And that is equally unfair.

Juristocracy v. democracy

The problem is that far from existing above the day-to-day political fray as many once assumed it did, Israel’s judiciary and the Supreme Court, in particular, have unfortunately become as much a partisan outfit as either group of antagonists in the Knesset. Dating back to the late 1980s, under the leadership of former Chief Justice Aharon Barak, the court gradually grabbed more and more power to the point where it took the position that it was the ultimate arbiter of every possible issue, including those that had nothing to do with its original purpose of interpreting the laws passed by the Knesset.

In this way, it has inserted itself into every conceivable controversy, acting not so much as a check on the power of the Knesset and the prime minister and government that leads it but arrogating to itself the right to decide all issues, including the legitimacy of political appointments and government policies.

It does so in the name of democracy—or so its supporters claim. But what it has done is to turn Israel into a juristocracy dominated by the country’s secular liberal minority. In this way, it denies the power to govern to the democratically-elected nationalist and religious majority that chose the current Knesset. This gives it sway over Israel that is far greater than that of any legal establishment over any other democratic country. And it uses that power to thwart Netanyahu and his coalition at every turn. It has also enabled attempts by his opponents to criminally prosecute him over flimsy and unsubstantiated charges of corruption that have led to the endless trial of the prime minister that continues to be both a national disgrace and an unnecessary and outrageous distraction at a time of war.

The current government, which won a clear majority in the November 2022 Knesset contest after four previous elections had resulted in a political stalemate between Netanyahu and his opponents, attempted to rein in the out-of-control power of the judiciary by proposing reforms that would place some minimal limits on its power. It set off a year-long bitter political standoff that nearly tore the country apart, and arguably served to help give Iran and its Hamas proxies the idea that Israel was too weak and divided to resist the sort of terrorist assault that occurred on Oct. 7.

And that brings us back to the question of responsibility for that catastrophe.

For those who protested against judicial reform, the question of how Hamas achieved a total surprise and thwarted the measures set in place to defend southern Israel is almost irrelevant. They say that the terrible divisions inside Israel were Netanyahu’s fault because he dared to try to change the system. That they were equally, if not more, responsible for convincing the country’s enemies that it was a propitious moment to strike is something they choose not to discuss. After all, it was the opponents of Netanyahu, especially those members of the credentialed elites who serve in some of the most important units in the Israel Defense Forces, such as the Air Force and intelligence, who were threatening not to serve if the prime minister got his way.

A mistaken strategy

To note all this is not to say that Netanyahu is innocent of responsibility for what happened on Oct. 7. His critics properly cite the fact that from the moment he returned to the prime minister’s office in 2009 after the long interregnum between then and his previous term as premier (1996-99), he was ready to leave Hamas in place. From then until he lost power in 2021—and then again in 2023 after his latest election victory—he pursued a strategy based on the idea that the terrorist-run independent Palestinian state in all but name that existed in Gaza was something that Israel had to live with.

Netanyahu ordered a number of military campaigns aimed at deterring Hamas from continuing its efforts to terrorize Israel with rocket and missile salvos, including major efforts in 2014 and 2021. This tactic was widely characterized as “cutting the grass,” an allusion to the idea that the terrorists could be periodically struck down but not completely eliminated. As part of this approach to the issue, he allowed Palestinian Arabs in Gaza to work inside Israel. He also permitted hostile foreign actors like the Gulf State of Qatar to send money to Hamas so as to theoretically buy its acquiescence in maintaining a ceasefire.

In retrospect, this was a terrible mistake that led to a historic tragedy.

Still, those who cite this strategic error as proof that Oct. 7 was all Netanyahu’s fault forget that he was far from alone in thinking that this was the least awful of the list of unsavory alternatives from which any prime minister could have chosen. Throughout these years, leaders of the opposition didn’t advocate a more aggressive approach or propose an Israeli offensive into Gaza that would decisively take out Hamas’s military forces. The only ones who spoke of this as a realistic option were dismissed as extremists or cranks.

The decision to live with Hamas in Gaza was the product of a national consensus that stretched from left to right.

Moreover, it was exactly what the experts in the Israeli military and intelligence establishments believed to be the wiser choice. So convinced were they that many of Israel’s leading generals and spymasters said the status quo with Hamas in Gaza was a model for what would happen should the Jewish state agree to the demands of the Obama administration for a two-state solution in which Judea, Samaria and part of Jerusalem would be surrendered to the Palestinians.

Hindsight is 20/20

Such figures claimed that Israel’s defense could be guaranteed by the country’s high-tech mastery, like the Iron Dome anti-missile batteries, and that territorial depth and control of the high ground were largely unnecessary. The same litany was repeated endlessly to journalists who visited Israel’s border with Gaza. This was widely believed not just because the “experts” said it was true, but because the overwhelming majority of Israelis understood that going into Gaza to eliminate the deadly threat that Hamas posed would have required the country to pay, as it did in the two years of fighting post-Oct. 7, a heavy price in the blood of its soldiers, as well as the opprobrium of an international community that always sides against the Jewish state.

The failure here was certainly Netanyahu’s. However, it must be shared with the entire top echelon of the IDF and security services, all of whom bought into the conceptzia—or widely accepted conventional wisdom—as much as the politicians dependent upon them for advice.

Does Netanyahu nevertheless deserve more reproach because he always represented himself as the country’s leading security expert? Perhaps. Still, the notion that he should have or even could have overruled everyone in the defense establishment and pursued policies that they would have all decried as unnecessarily aggressive and dangerous is not so much foolish as anachronistic. It’s something that can be asserted with the 20/20 hindsight that those commenting on the issue only possessed after the events of Oct. 7.

What those who focus solely on the blame for that dark day also forget is that the prime minister deserves enormous credit for leading the country’s efforts to defeat Hamas and other Iranian-backed enemies afterwards, while also fending off interference from Israel’s American ally and an international community determined to let Hamas win. Judging him only on what happened on the first day of a war that lasted 24 months and ended with Israel defeating its foes in Gaza, Lebanon and Iran—and with the Jewish state in its strongest strategic position since 1973—is as illogical as it is ahistorical.

Wherever you come down on these questions, the idea that a panel to decide this complex question that was convened by Netanyahu’s most bitter foes on the Supreme Court would be impartial judges of the matter is laughable.

It’s also important to remember that the Agranat Commission that investigated the failures at the start of the Yom Kippur War, which is cited as a model for an Oct. 7 inquiry, didn’t cover itself with glory. Its decision to make the IDF Chief of Staff David Elazar the principal scapegoat for the defeats of the first days of that war was both unfair and left his political masters—principally, Israeli Defense Minister Moshe Dayan—off the hook. Meir was also absolved—a decision that 50 years later seems wiser than it did at the time—but it was rejected by an Israeli people that thought, as prime minister, she needed to be held accountable. And so, she was soon forced to resign.

History and the voters will decide

The point being that the question of how to assess decisions made by politicians, as well as Israel’s military and intelligence chiefs, isn’t really something that can be conclusively decided by a committee, even if it were composed of fair-minded and impartial judges.

Responsibility for Israel’s many failures on Oct. 7 will be debated by historians until the end of time. Even a century from now, long after the contemporary political players are dead, it’s doubtful that there will be any sort of consensus that will satisfy everyone. The idea that the answer can be arrived at through a process that is indistinguishable from the campaign of lawfare that Netanyahu’s critics have been waging against him simply doesn’t stand up to scrutiny.

Until history renders its verdict, the only meaningful jury that can have its say about Netanyahu is composed of the country’s voters. In 2026, Israelis will return to the polls when this Knesset’s term expires, after having lasted longer than most of its predecessors in the country’s inherently unstable electoral system.

At that point, the voters will have their say about Netanyahu and Oct. 7—and that will have to suffice.

That won’t placate those who will never accept any answer but to pillory, if not imprison, Netanyahu on any conceivable pretext. But that takes us back to where the debate about his current government began: with a discussion about what it means to protect Israeli democracy. Having failed to defeat him at the polls or unseat him by any other legitimate manner, the issue of a supposedly independent inquiry about Oct. 7 is just the latest effort to find a way to topple the prime minister.

In both the United States and Israel, partisans have attempted to use the judicial system to decide questions that deserve to be left to the voters. Instead of seeking yet another means by which Netanyahu’s foes can force him from office, those who claim to support democracy should cease clamoring for a commission and instead leave the decision to Israel’s electorate.

©JNS