More than a month has passed since the horrific massacre carried out by Hamas in the Gaza envelope, and the Justice Ministry is still thinking about how to judge the Nukhba terrorists who led the terrible incident in the Gaza envelope. Meanwhile, the national public defender, Anat Metzev Ne'eman, whose people by law represent the heaviest murderers and rapists, has already announced that they too have a limit and that public defenders will not take part in representing terrorists.
"The extreme and exceptional events of any scale that occurred in the October 7 attacks are not suitable to be clarified in the framework of the ordinary criminal process," declared Neeman's founder, "Therefore, a thorough consideration of the system is required to examine a judicial framework appropriate to the extreme circumstances. Therefore, it is clear that it will not be possible to apply the regular representation arrangements in the framework that will be established."Such thinking takes place in the Ministry of Justice in the framework of staff work, which mainly deals with the question of whether to try the terrorists in a regular criminal trial or to enact another legal framework, and if so, which exactly, and perhaps even in special courts. According to a Justice Ministry source, the Shin Bet asked Attorney General Gali Baharav Miara to suspend any legislative initiative on the matter until the investigations are completed.
Duvdevan Forces activity in the Gaza Strip // Photo: IDF Spokesperson
The missing link
In the meantime, the Justice Ministry has divided the detainees into two groups – the junior group that will be tried in a regular criminal trial, and the group of murderers, in which, as stated, it is still unclear in what framework they will be tried.
"It is very doubtful to me whether ordinary Israeli criminal law is suitable for prosecuting the participants in the massacre," says Lt. Col. (res.) Attorney Morris Hirsch, who served for 19 years in the Military Advocate General's Corps and in his last position as the Judea and Samaria attorney put dozens of terrorists in prison. "First, ordinary offenses such as murder, rape, arson and the like do not truly describe and reflect the severity of the horrific acts committed by the terrorists. These were acts carried out out of a clear ideological motive and out of a perception of the need to exterminate, degrade and desecrate as many Jews as possible.
"Second, on the face of it, there may be evidentiary difficulty in proving, at the level of each and every terrorist, that he was part of a large malicious plan, and therefore a situation may arise in which each and every terrorist will be charged only for the acts he committed, and not for all the acts deliberately committed by all the terrorists, as part of the grand plan."
Hamas terrorist under interrogation, photo: uncredited
Not only does the criminal trial fail to match the severity of the acts, Hirsch touches on a central problem discussed by the Justice Ministry, namely that there is not enough evidence to prosecute the terrorists for serious offenses. The chaos on October 7 made it difficult to gather sufficient evidence at the high threshold of criminal trials, so even if the IDF captures the Hamas leadership, there may be evidentiary difficulties linking them to the massacre.
"For example, it was with Ahmed Sa'adat, head of the PFLP," says Hirsch, "It is clear to everyone that he bears responsibility for the murder of Minister Rehavam Zeevi, but in practice, since there was no evidentiary link, he was never prosecuted for the act. As for the Hamas leadership, there may be an evidentiary disconnect between them and the terrorists operating on the ground."
Between "Participate" and "Execute"
Attorney Lior Epstein is a veteran defense attorney who is appalled by the thought that the rights of suspects and defendants recognized by the court ruling, and which he uses every day to protect his clients, will be used to protect the participants in the massacre. "The law grants the defendant a variety of rights in the form of representation, the right to investigative materials, the burden of persuasion that rests forever on the prosecution – all in order to fortify the freedom of all citizens. The goal is that this liberty will not be violated, but by the rules of the law and in a way that of two possibilities, the defendant will always be the one who is chosen," Epstein explains.
As someone who has carried out countless defense juggles, Epstein warns that if they are used by terrorists, the prosecutor's files will almost certainly collapse. "The investigative proceedings in the events of the accursed Saturday must not pass through combs and the limitations of criminal procedure. The difficulties of the investigation will be a beacon in the courtroom and will float and will not survive the order of evidence. Will the unfortunate soul that was injured and saved from the massacre be severely cross-examined by the terrorist's defense attorney? Criminal law will require it."
A house damaged in a Hamas attack, in Kibbutz Be'eri, photo: AFP.
So what should be done? Epstein, like many others, proposes a new, military tribunal: "Such a tribunal, like military law, will focus on whether the defendant 'participated in it' rather than on the question underlying any criminal case whether the defendant 'committed it.'"
An example of a similar solution overseas does not bode well: after the World Trade Center bombing, the US established special courts to try al-Qaeda members. The new courts turned out to be so cumbersome that even 20 years after the attack, they had not finished trying all the terrorists.
The Headquarters of the Families of the Abductees holds a legal opinion according to which the participants in the massacre can be prosecuted for an offense existing under the Israeli law of genocide, punishable by death. Hirsch believes that the path to such punishment is different: "In my opinion, the solution is to enact a law that is identical in its characteristics to the law for bringing Nazis and their collaborators to justice, which will enable the provision of a new-old normative framework, which reflects the full severity of the massacre and attaches to the offense the punishment it deserves – the death penalty. These trials must take place day after day, without breaks, and with a rigid judicial approach, which will not allow the terrorists' defense lawyers to withdraw the trials as is happening today."
Hamas terrorist under interrogation, photo: uncredited
Prevent time smudging
A source in the Justice Ministry says that the tendency of the attorney general, as well as of the political and security echelons, is to try to rely as much as possible on existing law. The death penalty is also being rejected for the time being by the Justice Ministry, as are senior officials, for fear that it will lead to international criticism of executions. In addition, there is concern that the enactment of such a law, or an indictment of an offense with such punishment before the return of the abductees, may endanger their lives.
Punishment that is not the death penalty but imprisonment will allow terrorists the comfortable cells of the Israel Prison Service – with sweets in the canteen, television, hot showers and an intelligence officer who will respond to their demands in exchange for quiet. Either way, the political, security, and legal echelons face an enormous dilemma, which will almost certainly bring them public criticism – in any way they choose. Meanwhile, the echelons are cooperating and backing each other.
Silent testimony to the massacre. Burnt cars at the entrance to the teen lane, photo: uncredited
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