In the immediate wake of the savage October 7 massacres committed by Hamas and amid the IDF’s operations to liberate Israeli towns and communities overrun by the terror group, Israeli security forces captured several dozen of the 3,000 terrorists involved in the atrocities.
These terrorists participated in the massacre of 1,200 Israelis — mostly civilians including babies, children, and the elderly — and also committed acts of torture, rape, and other severe crimes.
Prison Service Commissioner Katy Perry said on October 17 that Israel was holding some 118 “unlawful combatants” from Gaza, in reference to the Hamas terrorists captured on and after October 7, although more recent figures have not been released.
In the weeks since, law enforcement authorities have been grappling with the question of how to put on trial the terrorists who committed these atrocities.
The State Attorney’s Office and the Justice Ministry in general have remained tightlipped on the matter, but estimations can be made as to what the trials will look like if Israel does end up prosecuting these terrorists.
First is the question of what framework they would be tried in.
Since the atrocities these terrorists perpetrated were committed on sovereign Israeli territory and that’s where they are being held, they will likely be tried in a regular court.
In that case, the relevant court would be the Beersheba District Court since it holds jurisdiction over the Gaza border region and the southern towns where Hamas perpetrated the October 7 massacres.
Another option would be to try them under military law, where the death penalty could be sought by the prosecution for charges of murder.
Prof. Barak Medina of the Hebrew University of Jerusalem Faculty of Law notes that Palestinian terrorists are frequently tried under military law, but says that using the military courts might blemish the international legitimacy of the legal process.
The terrorists could also be held in detention indefinitely under the law for illegal combatants, which would make it easier for the state to release them in any exchange for the hostages currently being held by Hamas in Gaza.
That solution, though, would likely create legal problems, and the release of such murderers would create a political outcry.
Genocide
Should the terrorists be tried in the regular court system, there are numerous crimes on the statute book which they could be charged with, some of which are especially relevant for the atrocities committed on October 7.
One of those is Israel’s Law for Preventing and Punishing Genocide, 1950, based on the UN’s Genocide Convention, which stipulates that anyone convicted of intentional “total or partial genocide” against a national, ethnic, racial, or religious group be sentenced to death.
The law was passed against the background of the Nazi crimes perpetrated during the Holocaust, but is applicable outside of that context.
The death penalty is the only punishment provided by that law, meaning anyone convicted of it would have to be sentenced to death.
Medina says he thinks Hamas’s massacres and other crimes on October 7 could constitute a violation of the genocide law, in that the terrorists set out to kill as many people as possible from a specific group of people — that is, Jewish Israelis.
But he notes that convicting low-level combatants on genocide charges is very difficult.
Gal Levertov, who served for eight years as director of the international division of the State Attorney’s Office, says similarly that securing a genocide conviction against foot-soldiers and lower-ranking members of an armed force is particularly difficult.
Levertov noted that a Serbian soldier by the name of Aleksandar Cvetkovic who participated in the 1995 Srebrenica massacre during the Bosnian War in which 8,000 Bosnian men were killed in Bosnia-Herzegovina was extradited from Israel in 2012 to stand trial on genocide charges in a special Bosnian court, but that he was acquitted and released because of difficulties proving the charges.
Cvetkovic had married an Israeli woman after the Bosnian War and obtained Israeli citizenship
Levertov also noted that the only time that charges of genocide have been brought in Israel’s history were against Nazi war criminal Adolf Eichmann and John Demjanjuk, a Ukrainian guard at Nazi extermination and concentration camps.
Death penalty
Other crimes Hamas terrorists could be charged with include assisting an enemy in war, acts of mass terrorism, murder involving exceptional cruelty, and murder as a member of a terror organization.
According to a report by the Kan public broadcaster on Monday, the terrorists in Israeli custody are likely to be charged with the last three of those crimes, among others, but not with genocide.
Testimony has been borne by October 7 survivors of mass rape perpetrated by Hamas terrorists, while some Hamas captives have admitted to raping women during the attack, so rape charges could also be issued in some cases.
The 2016 Law for the Fight Against Terrorism says that rape as an act of terror is subject to a punishment twice that of rape under ordinary circumstances, but cannot exceed 25 years in prison.
Assisting the enemy carries with it a punishment of either the death penalty or life imprisonment, meaning the judge has discretion over which punishment to impose, while the penalty for an act of mass terrorism is life in prison.
The acts of murder with which the Hamas terrorists could be charged all provide for a life sentence without eligibility for parole.
However, a 2014 law allows the government to release prisoners from Israeli jails for three purposes: to secure the release of Israeli hostages from captivity; as a foreign policy gesture; or as part of a foreign policy agreement or treaty.
Levertov said he doubted that the death penalty would be sought against any of the Hamas terrorists currently being held by Israel, especially while Hamas continues to hold Israeli citizens hostage in Gaza, for fear of reprisals against them.
And Medina mentioned another obstacle to any possibility of executing Hamas terrorists, saying that he believed the High Court of Justice would rule that the death penalty violates Israel’s Basic Law: Human Dignity and Liberty.
Nevertheless, there is heavy political pressure from some quarters to have the death penalty applicable to the October 7 Hamas terrorists.
Bills introduced to the Knesset by the far-right Otzma Yehudit Party and the hawkish Yisrael Beytenu party at the beginning of the year, before October 7, would require that the death penalty be applied to anyone convicted of murder with a terrorist motive.
And Otzma Yehudit leader National Security Minister Itamar Ben Gvir insisted that a hearing on the bill go ahead in the Knesset National Security Committee on Monday, despite the opposition of fellow coalition parties and relatives of hostages held in Gaza who fear retribution against their family members by Hamas.
Otzma Yehudit is a member of the coalition, but senior figures in the coalition oppose such sensitive legislation at this time, including Likud whip MK Ofir Katz who said the bill would not be advanced.
It is unclear exactly when a decision will be made as to the format of the trials and what charges the State Attorney’s Office will bring. The Justice Ministry declined to comment.
The trials themselves, however, will be a critically important aspect of Israel’s efforts to process and come to terms with the savagery of the most severe assault against its citizens and their sense of security in the 75 years of the country’s existence.
The eyes of the country will focus on those trials like never before, and the people of the country will demand that justice be done for the some 1,200 people who were brutally murdered on October 7, the over 240 people taken captive, the thousands who were injured, and the countless others who were affected by Hamas’s barbaric assault.
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