TIA GOLDENBERG
Hamas’ unprecedented raid on southern Israel has prompted a legal predicament: How does a country scarred by the deadliest attack in its history bring the perpetrators to justice?
Israel is holding hundreds of Palestinians from Gaza accused of taking part in the Oct. 7 attack that sparked its war with Hamas. It is grappling with how to prosecute suspects and offer closure to Israelis, including victims’ families.
None of the available legal options seem to fit.
Mass criminal trials could overwhelm Israel’s already sluggish courts. An ad hoc war crimes tribunal established under Israel’s far-right government could lack credibility. Freeing the suspects as part of a deal to release hostages held in Gaza would trouble many traumatized Israelis.
“They slaughtered, raped, looted and were caught red-handed,” said Yuval Kaplinsky, a former senior official in the Israeli Justice Ministry. “There is no silver bullet here for how to try them.”
Rights groups say the longer Israel takes to decide the right legal path, the longer suspected perpetrators languish in poor conditions and with no known contact with the outside world. At least 27 Palestinians from Gaza have died in Israeli custody since the war began, according to Israeli figures.
HOW DOES ISRAEL HANDLE PALESTINIAN SUSPECTS?
Israel has long contended with legal issues surrounding Palestinian suspects — and has long been criticized for its approach. It regularly uses a measure called administrative detention to hold Palestinians without charge or trial.
Palestinian suspects from the West Bank are tried in Israeli military courts that have been a longtime fixture of its open-ended occupation of the territory. Palestinians and human rights groups say the system almost always renders guilty verdicts. Israel says it provides due process and imprisons those who threaten its security.
Shawan Jabarin, who heads the Palestinian rights group Al-Haq, said any trial held by Israel would not be credible.
“This is the system that Israelis have: Inhuman. Unfair. No due process,” he said.
In the Oct. 7 attack, thousands of Palestinians crossed the border from Gaza into Israel, breaking down the country’s defenses and rampaging through sleepy communities. They killed entire families, hunted down revelers at an outdoor music festival and committed sexual violence.
Hamas took roughly 250 hostages, including women, children and older adults, and is believed to still be holding 100 of them.
Israel’s subsequent invasion has killed more than 31,000 Palestinians and led to widespread hunger.
WHAT ABOUT THE CRIMINAL COURTS?
Israel’s criminal courts are distinct from the military courts and are widely seen as independent of political influence.
But Barak Medina, a law professor at Jerusalem’s Hebrew University, said trying the hundreds of suspects there would overwhelm the backlogged system and could take years.
Israel’s public defenders’ office has said it will not provide a state-funded attorney for the suspects, seeing Israeli lawyers also scarred by Hamas’ attack as unsuitable and unwilling to do so.
According to Israel’s public broadcaster Kan, the office has suggested foreign lawyers be enlisted, like in Israel’s 1961 criminal trial of Adolf Eichmann, one of Nazi Germany’s main organizers of the Holocaust.
Some experts have pointed to that trial as a possible precedent because it was high profile, dealt with a traumatic event and challenged Israel’s existing legal framework. In publicly airing the Nazis’ heinous crimes, the trial offered some catharsis for Holocaust survivors.
Eichmann, who was captured by Mossad agents in Argentina, was represented by a German lawyer and was found guilty of crimes against humanity, crimes against the Jewish people and war crimes. He was executed in 1962, the only time Israel has carried out a death sentence.
A similarly public trial for Hamas’ crimes might offer Israelis some sense of justice. But Eichmann’s trial focused on just one defendant.
Kaplinsky, the former Justice Ministry official, said the narratives presented at criminal trials could also work against Israel by providing fodder for its opponents.
For example, if prosecutors fail to include rape charges in any indictment because the evidence they have doesn’t meet the legal threshold, that could fuel arguments about whether sexual violence occurred at all. Defense attorneys might use friendly fire shootings to whip up suspicions about the death toll from the attack.
WHAT ABOUT A TRIBUNAL?
Kaplinsky presented a plan to an Israeli parliamentary committee that suggests creating a tribunal that takes the events of Oct. 7 as established fact. The tribunal would not call witnesses but would be based on documents from Israel’s security forces as well as the suspects’ interrogations. Suspects would fund their own defense.
It was not clear if his plan was being considered.
Dahlia Scheindlin, a political analyst who wrote a book about Israel’s democracy, said any tribunal created under Israel’s current far-right government would be politically tainted.
“It will look like the laws are tailored according to the political whim of the current government,” she said.
Medina, the law professor, said it appeared the state was holding off on making any decisions on how to try the suspects because it was expecting them to be released as part of a deal to free hostages.
The Israeli Justice Ministry declined to comment.
WHAT IS HAPPENING TO SUSPECTS NOW?
For now, many of the suspects are said to be considered “unlawful combatants,” meaning Israel can extend their detention indefinitely, delay their access to a lawyer and keep legal proceedings classified. Rights groups say that lack of transparency can enable abuse.
Israel’s predicament is similar to the one the U.S. faced after the 9/11 attacks as it sought to capture al-Qaida leader Osama bin Laden. The U.S. sent hundreds of suspects to Guantanamo Bay in Cuba. The detention center became the focus of international outrage because of the torture of prisoners and the U.S. insistence that it could hold men indefinitely without charge.
Avi Kalo, who heads the international law program at the International Institute for Counter-Terrorism at Israel’s Reichman University and is a former legal advisor to the Israeli military’s intelligence corps, said this situation is different because the Oct. 7 detainees are being held in Israeli territory and are subject to Israeli law. That includes judicial oversight on their cases, though rights groups say that oversight is flawed.
Tal Steiner, executive director of the Public Committee Against Torture in Israel, said that accounts from freed prisoners indicate detainees are receiving little food and experiencing inhumane treatment that could amount to torture.
The Israel Prison Service, which holds some of the suspects, said prisoners are granted their basic rights.
Steiner said the committee hasn’t taken a position on the best way to bring the attackers to justice.
“It’s a complicated legal question,” she said. “But the alternative of holding them in lengthy detention, incommunicado, in such harsh conditions is also not a normal legal option.”
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