The Israel Police investigators are working on an in-depth collection of evidence, under the guidance of the prosecutor's office, for the purpose of preparing significant indictments against the Nuh'ba terrorists, who are responsible for planning and carrying out the October 7 massacre.
However, it is still unclear how the Israeli justice system will deal with their prosecution.
Two options that do not require legislation or special adjustments are prosecution in military courts, or in criminal proceedings according to existing law.
These options have significant drawbacks.
For example, the special military court can be renewed.
Also, the military court is conducted by virtue of the mandatory defense regulations, in which there are no crimes of murder, rape and looting, but crimes such as possession of weapons and use of weapons or explosives.
Another disadvantage is that the international trust that will be given to the decisions of the military court will be low, because the army is the one fighting the prosecution.
Through an existing criminal procedure, it is possible to rely on several laws - for example, regarding aggravated murder, rape, property crimes and the fight against terrorism.
This procedure has several disadvantages: the prosecution will have to prove the involvement of every Hamas terrorist who is accused beyond a reasonable doubt;
These are trials that may go on for years;
And there is the lack of manpower - in order to conduct the trials for the aforementioned types of offenses, a composition of three judges is required, and there are no standards for at least 600 district judges.
However, criminal proceedings will help to brand Israel as a law-abiding and objective justice system manager.
Therefore, it seems that the most correct option is to base it on the criminal law, and enact a dedicated law for the prosecution of Hamas criminals and their aides, similar to the legislation that prosecuted Nazi criminals such as Eichmann and Damianiuk.
Hamas terrorists will be charged with, among other things, aggravated murder, assault, rape in the highest degree, imprisonment and human trafficking.
These are serious offenses in any legal system, in Israel and in the world.
A dedicated law will allow Israel to present to the world the crimes committed within the framework of justice.
At the same time, there will be attempts to undermine his legitimacy, as Eichmann and Demjanjuk previously claimed.
Both claimed that the law did not apply to them because it was enacted after the offenses were committed, in addition to being a small cog in the system and the fact that they only carried out instructions (Demianiuk also claimed a mistake in identification).
Additional difficulties may be evidential and legal.
The "Wall Street Journal" reported that the police investigators are aware of the problems in presenting the evidence, so they are using 200,000 photos and videos and 2,000 testimonies to consolidate evidence, so that the prosecution will submit detailed and incriminating charges.
Also, to the extent that the law will be based on levers that already exist in the penal law and the law on the fight against terrorism and related offenses, it will be possible to deal with claims of lack of evidence, and to convict even without the need to prove the full involvement of each terrorist in all the elements of the offense.
The prosecution will have to prove the involvement of every Hamas terrorist who is accused beyond a reasonable doubt;
These are trials that may go on for years;
And there is the lack of manpower - in order to conduct the trials for the aforementioned types of offenses, a composition of three judges is required, and there are no standards for at least 600 district judges
Another sensitive issue is the death penalty.
As mentioned, military courts are allowed to impose the death penalty, and the dedicated law is also required to allow judges to determine such a penalty.
But it is clear that as long as the abductees are in the Gaza Strip, it will not be possible to impose the death penalty, for fear of harming the negotiations.
The events of October 7 are more similar to the Holocaust than to any other nationalistic murder, in terms of the amount and type of crimes, the way they were carried out, and also the evidentiary need to prove them.
Conducting the trial of Hamas terrorists in a manner similar to the trials of Eichmann and Demjanjuk will show the world the atrocities of Hamas through evidence.
The more Israel chooses the right legal way to prosecute the Hamas terrorists, which will also include publicity and transparency of the hearings, the more it will be able to convict the terrorists and publicly prove the atrocities they committed, certainly when we are already encountering denial attempts on behalf of Hamas and its supporters.
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