The Hamas attack that killed at least 1,200 people in Israel last month presented its leaders with difficult decisions about how to both wage war in Gaza and free the hostages held there. But it also posed a longer-term dilemma in government circles that has received less attention so far: What should Israel do with the Palestinians suspected of perpetrating the mass killing?
The Hamas attack that killed at least 1,200 people in Israel last month presented its leaders with difficult decisions about how to both wage war in Gaza and free the hostages held there. But it also posed a longer-term dilemma in government circles that has received less attention so far: What should Israel do with the Palestinians suspected of perpetrating the mass killing?
Israel captured several hundred of these suspects on Oct. 7 and the days that followed the massacre. In other circumstances, Palestinians from the Gaza Strip who commit crimes in Israel would be tried in the country’s regular court system.
But experts say this case is almost unprecedented in its scope and severity, and it poses particularly vexing questions and complications for the legal system. So many that some officials are calling for the formation of a special judicial framework—possibly a military tribunal—where the suspects would stand trial.
The dilemmas span every stage of a legal process: How should the suspects be treated in detention until their trials, and who will represent them? Are Israel’s regular criminal courts adequate for the heinous nature of the crimes, or the sheer number of defendants? Why is the investigation so complicated, given the abundance of evidence? And should the sentencing options include the death penalty?
Hovering over all these are questions about the very purpose of the judicial system. How does it address the crimes committed against individual Israelis on Oct. 7 while also addressing the collective existential wound inflicted on Israeli society? Legal proceedings are supposed to give the victims a sense of justice, deter future crimes, and demonstrate the value of the rule of law more broadly to society. And in this case, “society” doesn’t just mean Israel. Given how the Hamas attack and Israel’s subsequent war on Gaza have both captivated and polarized people around the world, the international community will no doubt watch the proceedings closely.
With these heightened stakes, there are risks even at this early stage; already, some people are raising concerns about the suspects’ prison conditions.
Hassan Jabareen, a human rights lawyer and the director of Adalah, an Israeli nongovernmental organization focusing on the rights of Arab citizens of Israel, has gathered testimonies from prisoners who “say they hear [other] Hamas prisoners screaming, yelling; we’ve heard about people being dragged on all fours, being humiliated.”
Jabareen said that some of the prisoners appeared to be bound while incarcerated, underfed, and held in overcrowded conditions. Human rights groups have raised concerns about torture in their interrogation as well as potential damage to due process.
Israel’s minister of national security, the ultranationalist Itamar Ben-Gvir, has actually boasted that the Hamas prisoners captured on Oct. 7 are being held in the “harshest possible conditions,” including “eight bound terrorists in a dark cell, iron beds, toilets that are a hole in the floor, and Hatikvah [the Israeli national anthem] playing constantly in the background.”
The government has amended the rules of detention following the attack through state-of-emergency mechanisms that allow it to skip Knesset approval. Suspects can now be held for a total of up to 90 days and denied a meeting with a lawyer for the same total amount of time.
The issue of legal representation is complicated by the fact that Israeli lawyers do not want to represent these detainees. The public defender’s office has said that it would not defend them, and Jabareen also declined, saying that Adalah’s focus is on Palestinian citizens of Israel. He explained in an interview that no lawyer wants to invite the public wrath that would likely come with working for the defendants; however, a court has appointed a private lawyer in at least one case, he said.
The question of representation will be just as critical in the trial phase. But there is a historical precedent, a comparison that seems intuitive in Israel these days: When Israel put Adolf Eichmann on trial in 1961, then too, no lawyer would represent him.
Eichmann was one of the main architects of the German genocide against European Jews during World War II. (Ben-Gvir and other Israelis, including news broadcasters, have been routinely referring to Hamas as a Nazi or Nazi-like group.) In Eichmann’s trial, the state was determined to demonstrate a legitimate legal process and thus approved foreign representation. Eichmann found a German attorney, and the Israeli state paid his fees.
The Israeli Public Defender’s Office—in addition to withholding representation—also stated that Hamas’s attack was so extreme that it should be adjudicated not under regular criminal proceedings, but through a special judicial framework “appropriate” to the circumstances.
Other public officials concurred. Simcha Rothman, the legislator from the far-right Religious Zionist Party who chairs Israel’s Constitution, Law, and Justice Committee, has publicly advocated for a “new infrastructure” to deal with “crimes against humanity, rape, and a barbaric massacre that criminal law cannot handle.” Yisrael Katz, an Israeli cabinet minister from the ruling Likud party, has called for a special military tribunal—which recalls the trials of alleged al Qaeda terrorists at the U.S. military base in Guantanamo Bay after the attacks of Sept. 11, 2001. Since Hamas’s attackers are as bad as Nazis, Katz argued, the military tribunal should apply laws designed in 1950 to try Nazi criminals in Israel and prevent genocide. Those laws do carry the death penalty.
A military tribunal would offer advantages for the prosecution. The evidence standards are lower, and defendants have fewer rights than those tried under civilian law; in the West Bank, these courts have close to a 100 percent conviction rate. This approach would also avoid exacerbating a long-running backlog problem in Israeli courts. Israel’s court system is particularly short-staffed at present, in part because the justice minister has refused to appoint new judges all year after his government failed to reengineer the judicial appointment committee to its liking.
Israel tries West Bank Palestinians in military courts, which are broadly criticized by international jurists and human rights advocates. In Israel itself, the military court system was phased out decades ago. But one case from 1972 that was heard before a military tribunal might have certain parallels to the case of the Hamas attackers. In May of that year, Kozo Okamoto, of the Japanese Red Army, and two other gunmen killed 26 people in a shooting spree at Ben Gurion Airport. The attack had been planned jointly by the Japanese Red Army and the Popular Front for the Liberation of Palestine (PFLP). Okamoto received a life sentence but was released in a prisoner exchange between the PFLP and Israel in 1985.
But several legal experts raised concerns about trying the Hamas suspects in a military tribunal. Yoav Sapir headed the public defender’s office for nearly a decade until 2021, and he is now on the faculty of law at Tel Aviv University; he is also active in the Israeli Law Professors’ Forum for Democracy, an ad hoc group that sprung up following the current government’s assault on the Israeli judiciary.
Sapir emphasized the importance of a legitimate process, particularly in the case of an ad hoc court. Guantanamo, he said, “was a bad experience in many ways. They didn’t have great legitimacy, and they weren’t effective. Lots of time passed, they got very little done … it was just a failure.” He favors trying the suspects in existing courts and adapting them if needed. If the district courts are overburdened, he said that additional judges could be provided from other courts.
Roy Schondorf, who served as Israel’s deputy attorney general for international law for nearly a decade, said it was crucial for the legal process to be seen by the world as proper and legitimate: “These legal proceedings are important first and foremost, of course, for victims and for doing justice. [But] there is also an international angle … the whole world will be watching.”
Although military tribunals can be legitimate, Schondorf said, they are often seen from the outside as less “institutionally independent,” while “for some in the international community, civil courts will have a greater perception of legitimacy.” Schondorf, who is now in private practice as the head of international dispute resolution with the Herzog law firm, noted that Eichmann was tried in the Jerusalem district court, albeit in a special hall with the presiding judge borrowed from the Supreme Court.
Once the Oct. 7 trials begin, the evidence itself will present further challenges. The area of the Hamas attacks was an active battleground for several days, and then a closed military zone—hindering the process of gathering forensic evidence. There is ample video evidence of what happened that day, from security cameras, the cell phone cameras of victims, and the body cameras of the Hamas militants themselves. Attorneys will have to pore over interrogation transcripts, confessions, and documents found on the militants—including attack plans.
But it’s not clear that individual perpetrators can be identified from the footage, and it will be hard to distinguish which people committed which gradations of crimes.
This is particularly problematic in the case of sexual crimes. It’s increasingly clear that women and children were sexually assaulted during the rampage. But in the chaotic aftermath of the attack, first responders failed in many cases to properly document the evidence. Since the victims of these alleged crimes are either dead or deeply traumatized, meeting the normal standards of evidence could prove difficult.
The death penalty question will inflame public debate further. In an emotional Knesset hearing last week, far-right politicians discussed a new bill (proposed earlier this year and revived now) advocating the death penalty for terrorists. Families of hostages protested the hearing bitterly, worried that the debate could endanger their family members being held by Hamas.
Analysts say the hearing was mainly posturing on the part of the politicians. For one thing, Israel has an interest in keeping prisoners alive for future hostage deals. Also, the death penalty already exists in Israeli law—both in the laws developed for Nazi crimes or treason, and in the military courts still operating in the West Bank—though it has not been used in decades. A special military tribunal would operate under British mandate-era colonial laws that include death penalty as well.
Eichmann was sentenced to death in late 1961 and executed a few months later. But since then, the state has avoided requesting the death penalty. Former Prime Minister Shimon Peres (then the transportation minister) favored it for Okamoto in 1972, calling the killing of 26 people a “genocide,” according to the state archive summary, but he was overruled. So far, the Hamas fighters are not expected to be charged with genocide under Israel’s 1950 laws. In other words, while the death penalty option exists, it has long fallen out of legal and social norms.
Sapir, the former head of the public defender’s office, pointed out that the Israeli security agencies have opposed the death penalty for years, for good reason. He cited studies that show the death penalty rarely deters criminals or terrorists and risks turning them into martyrs.
“It very much troubles me that they’re talking about this now, and often from people seeking political capital,” he said, referring to certain politicians. Sapir said the death penalty would likely be unconstitutional in Israel, since it could violate human rights legislation passed in the 1990s, long after Eichmann was executed.
But most of all, Sapir emphasized, “If, God forbid, political leaders [seek the death penalty], there are moral and legal reasons to avoid it, like most democratic countries, including the international tribunals dealing with crimes against humanity.”
There’s another issue that should concern Israelis: High profile trials can quickly devolve into spectacle, with performative speeches from prosecutors and political manifestos from defendants. Okamoto used his tribunal as a platform for his ideology about the proletariat’s revolution against the bourgeoisie. Palestinian leader Marwan Barghouti became a symbol of resistance by raising his hands in victory at the opening of his trial in 2002. Jabareen, the human rights lawyer, said the trial of Hamas suspects could showcase arguments that Israelis don’t want to hear.
“What [Hamas] did is terrible—it’s a war crime—but they can explain about their lives, people living under closure of Gaza, the Israeli occupation … growing up under wars with Israel,” he said.
For these reasons, Jabareen believes that the Hamas attackers might not stand trial at all. Israel could just hold them for a long time—possibly under the Unlawful Combatants’ Law, which allows for lengthy, renewable detention—until they are either forgotten or bargained away.
But Sapir argued that Israel should not miss the opportunity to recommit itself to the rule of law, even in these extreme circumstances.
“Israel has a legitimate interest in putting these people on trial … we’re a state under rule of law and must stay that way,” Sapir said. “Even if there’s no empathy for people who committed these atrocities, we have to maintain the rules in order to protect ourselves, to protect our character as a state under the rule of law.”
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