The parallel chain of command: jurists instead of commanders?

One of the foundational legends of the legal system is that if the Supreme Court rejected a security petition, it means it did not intervene. But this is a mistake, because the power of the Supreme Court is measured not only by the number of petitions accepted, but also by how the very possibility of intervention changes in advance the behavior of the army, the State Attorney's Office, and the political echelon.

This was the case with the petitions against the rules of engagement on the Gaza border in 2018. The Supreme Court rejected the petitions and accepted the state's position that the forces act in accordance with Israeli law and the laws of war.

But in practice, the court brought the rules of engagement into a framework of judicial review and required the state to justify them in terms of international law. This caused the Military Advocate General's Corps to declare "strict" rules of engagement, and on the day the border collapsed and a tank commander saw convoys of Gazans marching toward Israel, he did not know if he was allowed or forbidden to shoot, because we are "moral." Even when a petition is rejected, its shadow remains in the command center.

The main influence occurs even before the discussion. An officer asks not only what is needed to protect the border, but also what the Military Advocate General will approve; the Military Advocate General thinks about what the Supreme Court Department will be able to defend; and the Supreme Court Department evaluates what the panel will accept. Thus, a parallel chain of command is created, at the end of which sit judges who do not bear responsibility for security.

The expectation of Supreme Court intervention in advance, and the threat from the chain of "juristocracy" in the army and the state that the policy "will not pass in the Supreme Court," often do their job: the petition becomes redundant, because the state has changed its policy in accordance with what was requested in the petitions.

Professor Yoav Dotan described in his research the "pre-Supreme Court" mechanism: an informal practice, not born of law, through which the Supreme Court Department investigated complaints against authorities even before a petition was filed. Dotan showed how the department turned from a representation unit into a nerve center for decision-making, and how arrangements and compromises behind the scenes allowed the Supreme Court to influence policy without issuing a verdict.

I know the system from the inside. I was an intern for attorney Nili Arad, during whose time as director of the Supreme Court Department the pre-Supreme Court mechanism was institutionalized in the nineties. It was a tremendous source of power: a body that is not a court, without an evidentiary and public process, could demand explanations, delay decisions, and direct policy — by the power of the threat that the matter would reach the Supreme Court.

Over time, the Supreme Court began to penetrate the field of operational military activity, to a level that has no precedent in any country. Thus, during Operation Defensive Shield, the Supreme Court discussed petitions concerning the siege of the Church of the Nativity, the supply of food and medicine, the removal of bodies, and the entry of medical teams. The court declared that it does not manage the fighting or the negotiations, but the very discussion in real time and the issuance of orders during operational activity turned it into a player within the event.

In the Beit Surik case, the Supreme Court canceled part of the route of the separation barrier after ruling that the harm to the residents does not stand in proper proportion to the security benefit. Aharon Barak wrote that the question of whether the route is "proportionate" is a legal question in which the expertise lies with the court. But this is exactly the problem: a vague term like proportionality allows judges to decide how much security is worth sacrificing for other values — which is actually a political decision disguised as a legal doctrine.

This was also the case in the ruling on targeted killings. The Supreme Court did not prohibit the policy, but set conditions for its implementation, demanded individual examination, proportionality, and independent review after the attacks. Again: the petition was not accepted in the simple sense, but the court wrote part of the operational instructions, while maintaining its power to intervene in each and every case like a sword of Damocles hanging over the heads of the soldiers.

Against this background, the opposition on the right to a state commission of inquiry is understandable. The debate is not only about the ideological bias of Supreme Court judges toward the left, although the word "professional" in Israel has often become a whitewashed name for one hegemony.

The problem is deeper: the President of the Supreme Court appoints the members of the committee, while the Supreme Court itself has for years been a partner in shaping the legal framework of security policy. An institution that was involved in setting the rules cannot alone appoint those who will investigate their consequences.

State security must be determined by the government and the army. They hold the information, make the decisions, and bear responsibility to the public. Judges can examine a clear deviation from authority or an explicit violation of the law. They should not sit, openly or in the shadows, as unelected members of the war cabinet.

Professor Moshe Cohen-Eliya is an expert in constitutional law and founder of "Masad Haaretz - The Research Institute of the People of Israel."