In recent days, concerns have been raised in the Israeli media that the delay in collecting findings from the massacre near the Gaza Strip will make it difficult to bring Hamas terrorists to justice.
The disturbing concern is based on the fact that many of the victims' bodies have not been photographed, some of the bodies have been buried without documentation, hundreds of survivors have not yet been interrogated, the houses near the Gaza Strip have not been documented or blocked from entry, the videos taken by Hamas terrorists are slowly being erased from the Internet and it is doubtful whether they have been preserved, tractors are destroying the scenes where the offenses were committed, and so on.
At its core, this is a justified concern: it is a basic rule in criminal law that every element of the act that a person has committed must be proven in order to establish that he is guilty of committing it. For example, if you want to prosecute a person for committing murder, you have to prove that that person caused the death of another person, prove the way he caused the death, and so on.
Moreover, if a person commits a criminal act in one place, it is prima facie impossible to tie him to a criminal act that someone else did elsewhere, even though they were committed in close proximity, and even in a certain context. In our case, for example, it should be difficult to prosecute one terrorist who committed crimes in the village of Gaza for crimes committed by another terrorist in Nahal Oz. But on closer examination, it appears that even without factual findings against each and every one of the terrorists who participated in the massacre, it will be possible to prosecute all the terrorists. Not only that, but terrorists who participated in the massacre could be prosecuted for all the offenses committed by Hamas members in the October 7 massacre.
This is because, according to Israeli law, a person who participated in the commission of an offense "while doing various acts for the purpose of committing" is considered a joint perpetrator. In other words, there is no difference if all the deeds were done together, or if some of the deeds were done by one person and some by another.
By defining the partners in criminal activity as joint perpetrators, it is possible to relate to all the acts carried out on Black Sabbath as a single entity, and not to be specifically required to address each and every specific action of each and every terrorist.
Thus, in fact, all Hamas terrorists can be attributed to all the offenses committed on Black Saturday – rape, abuse, murder, kidnapping and more – even if some of the Hamas terrorists were not active participants in all the acts. In addition, even a person who committed acts that do not constitute a criminal offense at all as part of the massacre can be considered a joint perpetrator, if he took part in the commission of the offenses.
Thus, for example, in a case in which about ten terrorists planned to enter Israel in order to carry out terrorist activity, and entered Israel together. Five of them went down to the village of Gaza and raped women, and the other five came to a Nova party and murdered civilians. Due to the fact that this is preliminary planning within the framework of a common goal – to commit offenses together as part of an overall terrorist plan – it will be possible to attribute all the offenses to all the terrorists, even to the terrorist who "only" drove the car.
This is because there is no difference whether all the acts were carried out together, or if some were carried out by one terrorist and some by another. The terrorists were aware that they were entering Israeli territory to commit offenses, and knew that they were working together.
By defining the partners in criminal activity as joint perpetrators, it is possible to relate to all the acts carried out on Black Sabbath as a single entity, and not to be specifically required for each of the specific actions of each and every terrorist
Alongside all this, the state will be able to attribute to every terrorist, at least to some extent, all the massacres and atrocities committed in the entire Gaza envelope and even in Sderot, due to the general joint planning of the infiltration into Israel.
In conclusion, it seems that the criminal trial will make it possible to prosecute every terrorist caught participating in the Black Saturday massacre for participating in several criminal acts, out of hundreds of murders, atrocities, abuse and other terrible crimes committed there, and that the fears that there is insufficient evidence that the crimes were committed have no basis.
Wrong? We'll fix it! If you find a mistake in the article, please share with us