The uproar surrounding the investigation into the October 7th massacre and the question of a “state commission of inquiry” once again brings to the surface the involvement of the Supreme Court and the legal establishment in Israel’s security decision-making.
To any clear-thinking person who is not subservient to the judiciary, it is already evident that the legal system is endlessly involved in Israel’s security decisions regarding its enemies. Yet sometimes the trees obscure the forest, and today there is a popular trend within the legal establishment and among left-wing organizations to categorically deny any Supreme Court involvement in security decisions — and any responsibility of the legal system for the outcomes of October 7th.
This issue is important not in order to dwell on “who is more to blame,” but to understand the decisive shift that has taken place in the moral and legal conceptions of warfare and counterterrorism — and the critical importance of the identity of the judges and legal advisors embedded in our lives, alongside a clear limitation of their authority. This issue must stand at the very center of any investigation into the conceptual failures that led to the massacre.
A. A History of Aggressive Interference
The involvement of the legal establishment in matters of security and warfare lies at the very heart of judicial activism for the past twenty-five years — more than any other field.
The ideological foundation of Aharon Barak's constitutional revolution was the claim that we must never assume that Nazism could not happen here. As he wrote in the opening of his article “Human Rights and National Security”:
“If it happened in the Germany of Kant, Beethoven, and Goethe, it can happen anywhere.”
Accordingly, in one of his earliest rulings on national security matters, Barak stated that the IDF must be forced to fight with one hand tied behind its back. This spirit was embedded throughout the entire legal system, and particularly in the Supreme Court.
From the Second Intifada, through the Second Lebanon War, the operations in Gaza over the years, and up to the current Iron Swords War — this judicial intervention has steadily intensified.
The areas of involvement are extensive: rules of engagement, demolition of terrorists’ homes, destruction of houses and uprooting of orchards for security purposes, interrogation methods and detention conditions, targeted killings, provision of supplies to the enemy, the “neighbor procedure,” and strikes on terrorists embedded among civilians — and more. There is no area left untouched.
The consequences have been the shedding of Jewish blood — unbearable consequences — from the murder of Tali Hatuel and her daughters prior to the Gaza disengagement, to the present day.
The ideological foundation of Aharon Barak's constitutional revolution was the claim that we must never assume that Nazism could not happen here.
Alongside Supreme Court rulings, much of this influence is exercised through directives enforced by legal advisors within the government and even within the military itself. In the review committee established after the Second Lebanon War, Meni Mazuz , described approvingly the growing role of legal counsel in all aspects of warfare, noting a trend that would only intensify. As he predicted, the military leadership has since increasingly subordinated itself to legal guidance in every matter of force deployment.
B. Crippling the IDF with a Low-Visibility Intervention
In his book The Pure Sound of the Piccolo, David Zechariah describes in detail the subtle yet decisive influence of Supreme Court justices.
The justices — the highest authority in this mechanism — avoid leaving a clear, written “footprint” of responsibility in their rulings. A highly visible attribution of responsibility would expose them to accountability for consequences.
Therefore, alongside the efforts of legal advisors to restrict the IDF, the justices send clear signals that the military must restrain itself — or face adverse rulings.
A ruling creates binding precedent, and the military internalizes the message, preferring self-restraint. If restraint is sufficient, no ruling is issued; if not, a ruling follows.
For example, in the case of the “neighbor procedure,” the IDF scaled it down, but not enough in the Court’s view, and it was struck down. In contrast, regarding home demolitions, Barak signaled possible intervention, and the Chief of Staff responded by tightening restrictions — thereby avoiding a ruling that would bear the Court’s name.
This is the method: accepting petitions in real time, conducting a “dialogue,” transmitting signals about expected outcomes, and if those signals are implemented — the petition is dismissed. Thus it was with demolitions, interrogations, and administrative detentions. Pressure is applied, and guidance is transmitted through the very structure of the hearing. This is how authority is exercised without accountability.
C. The Preparations for the Massacre under Legal Directives
This is precisely the mechanism used in the Supreme Court proceedings regarding rules of engagement during the 2018 Gaza border protests — protests that later proved to be part of Hamas’s preparations for the massacre.
Hamas organized mass demonstrations along the fence to normalize approaching it, breaching it, and eventually crossing it.
The justices — the highest authority in this mechanism — avoid leaving a clear, written 'footprint' of responsibility in their rulings.
Petitions were filed, procedures were “refined,” and the justices clarified that live fire was permitted only in highly exceptional circumstances. The petitions were then dismissed.
From that point, the buffer zone was steadily eroded. The IDF gradually allowed protesters to approach the fence — “because they are unarmed” — in line with judicial guidance. Military correspondents documented the complete erosion of the perimeter in the following year. (See Akiva Bigman, Mida, “The Road to the Debacle.”)
This is how the groundwork for the massacre was laid.
Even during the current war, the Supreme Court continues to hear petitions concerning the supply of goods to Gaza, the conditions of Hamas prisoners — specifically Nukhba fighters — and their food rations, among other matters.
D. The Primary Suspects Cannot Appoint the Investigators
No Supreme Court, and no legal system in the Western world, has intervened so extensively and so openly in its nation’s security and existential struggle.
A thorough investigation is required into the legal establishment’s responsibility for the killing of so many Jews in the State of Israel.
Entire intellectual frameworks were constructed around “proportionality” — an attempt to balance Jewish security with the rights of enemies. The October 7th massacre shattered this doctrine like a house of cards, leaving ruins soaked in Jewish blood.
This matter must be investigated thoroughly, to its roots. The post-factum denial of involvement and responsibility is itself part of the failure.
Therefore, it is inconceivable that the same system should appoint those who investigate it. The judges themselves must stand in the front line of those being investigated.
Such a decision is essential — both for survival and for moral integrity.
‘path pavers’
