Even When the Petition to the High Court Is Rejected, Its Shadow Remains in the War Room | Prof. Moshe Cohen-Eliya

Prof. Moshe Cohen-Eliya argues that the power of Israel's High Court of Justice is not measured only by petitions that were accepted, but by its early influence on military and state decisions. He describes how the mere possibility of judicial intervention changes the behavior of the military and the prosecution, creating a parallel chain of command where judges who bear no security responsibility influence operational policy. The article references the 2018 Gaza border open-fire orders petitions, the Beit Surik case, and the targeted killings ruling, linking this to opposition to a state commission of inquiry into the October 7 events.

In his article, Prof. Moshe Cohen-Eliya argues that the power of Israel's High Court of Justice is not measured only by petitions that were accepted, but by its early influence on military and state decisions. He describes how the mere possibility of judicial intervention changes the behavior of the military and the prosecution, creating a parallel chain of command where judges who bear no security responsibility influence operational policy. As an example, he cites the 2018 Gaza border open-fire orders petitions, which the High Court rejected but placed under judicial review, leading to the military prosecution's declaration of "stringent" orders. He also mentions the Beit Surik case, where the High Court invalidated part of the separation barrier route, and the targeted killings ruling that set conditions for implementing the policy. The article links this to the right-wing opposition to a state commission of inquiry into the October 7 events, arguing that the High Court was complicit in shaping the legal-security framework and therefore cannot unilaterally appoint its investigators.