Toward the Oct. 7 Trials

The Oct. 7, 2023, massacre carried out by Hamas in Israeli communities, on military bases, and at a music festival was unprecedented in scope and brutality. Although Israel hasn’t officially disclosed how many of the attackers were captured alive that day or in the days that followed, Israeli press have estimated that thousands of Palestinians crossed the border into Israel, killing more than 1,200 people, committing sexual violence, and kidnapping more than 250 others into the Gaza Strip. In the ensuing war, Israeli forces detained thousands of Palestinians. Some were later released as part of hostage-exchange agreements with Hamas (though, according to Israeli reports, those released were not generally directly involved in the Oct. 7 attacks). The Israel Prison Service has stated that several hundred detainees are members of Hamas’s Nukhba commando unit. Yet to date, none of these individuals has been indicted for their crimes.

The Oct. 7 attacks and their aftermath raise an array of complex legal questions. One issue concerns the future prosecution of those captured on Oct. 7. These proceedings are likely to present unprecedented dilemmas for Israel’s justice system on at least four levels: (1) whether criminal prosecution is the appropriate legal avenue; (2) which court should exercise jurisdiction; (3) what charges can and should be filed—and what evidentiary and doctrinal challenges each would entail; and (4) what sentences should be on the table in a country that has generally avoided capital punishment (with one notable exception).

Whether and Where to Prosecute

Is the prosecution of potentially hundreds of Oct. 7 perpetrators practicable under the ordinary criminal procedural structures? Israel’s criminal justice system has long experience handling terrorism cases, but it has never confronted the challenge of trying hundreds of defendants who participated in the same attack simultaneously. Such a proceeding would demand extraordinary resources, including judicial capacity, prosecutorial manpower, secure facilities, and qualified defense counsel.

Complicating matters further, the matter of representation in these cases is far from clear. In an announcement a month after the massacre, Israel’s Public Defender’s Office stated that “[n]o lawyer from the public defense has been appointed to a single case of Hamas terrorists or any other terrorist related to October 7” and that “the procedure against these terrorists is not suited to the judicial procedure available today to deal with terrorists and terrorism.” In other words, the Public Defender’s Office will not provide representation to Oct. 7 defendants.

Later, the Knesset enacted legislation authorizing the use of Palestinian Authority funds held by Israel to finance private legal representation for these defendants. Despite this funding, it is unlikely that enough qualified Israeli attorneys will be willing to represent these defendants. Since the Public Defender’s Office has essentially refused to represent Oct. 7 defendants, and if no private attorneys are willing to represent them either, Israel might allow a foreign attorney to defend the Hamas militants. Israel has been in this position before: During his 1961 trial in Jerusalem, Nazi leader Adolf Eichmann was represented by German lawyer Robert Servatius.

Once these Hamas militants obtain counsel, some legal experts have argued that ordinary criminal prosecution may be ill-suited to this context. Yuval Kaplinsky, a former senior prosecutor who headed the International Law Department at Israel’s State Attorney’s Office, wrote that criminal prosecution “is not right and does not fit” the circumstances, warning that it would result in a “legal quagmire.” Indeed, applying Israel’s regular criminal procedure and full due process protections to the Oct. 7 cases would certainly pose serious challenges, given the vast evidentiary record and the number of defendants. Kaplinsky has instead proposed an alternative path: amending Israel’s Unlawful Combatants Law to create a tailored legal framework for handling these cases.

The term “unlawful combatant” generally refers to a person who takes part in hostilities without meeting the conditions that grant lawful combatant status—such as belonging to the legitimate armed forces of a state or otherwise qualifying for prisoner-of-war protections under the laws of armed conflict. Israel’s Unlawful Combatants Law authorizes the detention of such individuals and provides for procedural and judicial oversight of their detention, without pursuing full criminal prosecution, at least for limited periods of time. Kaplinsky has suggested amending the statute to create a formal status-determination procedure, allowing unlawful combatants to be detained or incarcerated on the basis of that designation rather than through the full criminal process. Such an approach, he argues, would avoid the burdens of mass criminal trials while still ensuring that detention decisions receive judicial review.

This and similar proposals have attracted some attention and political support. However, deliberations and investigations toward ordinary criminal proceedings at the State Attorney’s Office are reportedly moving forward rapidly. Recent reports indicate that prosecutors have prepared indictments against the first 22 suspects accused of participating in the massacre at the kibbutz Nir Oz.

If the State Attorney’s Office does hand down these traditional indictments—and hundreds more like it in the future—Israel would have to determine which court has jurisdiction over the cases. Under Israeli law, offenses that carry a potential sentence of more than seven years fall within the jurisdiction of the district courts. Given that the Oct. 7 attacks took place entirely within the Southern District of Israel—and that the charges against the defendants will most likely include homicide, sexual assault, kidnapping, arson, and other grave crimes, all carrying maximum penalties well above that threshold—the Be’er Sheva District Court would be the default venue for adjudication.

According to its website, the Be’er Sheva District Court currently has 27 sitting judges. Given its existing caseload, the court is unlikely to be able to effectively handle hundreds of additional, complex, and high-profile prosecutions while maintaining regular operations. To address this practical constraint, several options could be considered. One possibility is the establishment of an ad hoc tribunal or judicial department dedicated to adjudicating cases stemming from the Oct. 7 attacks. Further, under Israeli law, if the prosecution seeks the death penalty—an option available only in exceptional circumstances and very rarely used—a special trial must be held within the district court but presided over by a Supreme Court justice.

Another proposal for trying these defendants, advanced by Talia Einhorn, is to establish a special military tribunal with the specific mission of handling the Oct. 7 prosecutions. Israel has a parallel system of military justice, composed of two types of courts: courts-martial—which try members of the Israel Defense Forces for offenses committed during their service—and military tribunals—sometimes referred to as occupied territory courts, which adjudicate mostly national security-related cases involving Palestinians accused of offenses committed in areas under Israeli control in the West Bank. These tribunals exist primarily because Israel has not annexed the West Bank and does not consider it part of its sovereign territory.

The military court system, therefore, generally functions as the judicial authority for a population that falls under Israeli security control but lies outside Israel’s formal legal jurisdiction. The laws and procedures in these courts are not identical to “regular” Israeli law, but they offer a full adjudication process with due process of law. As Einhorn pointed out, until 2000, Israel operated such a court within Israel too for certain terrorism and national security cases, including the case of a Japanese terrorist who committed a massacre in Israel’s main airport in 1972, or that of the Palestinian terrorist who committed the infamous “refrigerator bomb attack” in Jerusalem in 1975. She has highlighted that on a comparative level, other democracies have established military courts to adjudicate war criminals—such as those established in Nuremberg by the Allies after World War II, or even those established by the Bush administration under the Military Commissions Act. Accordingly, Einhorn argues, the establishment of a military tribunal for the adjudication of the Oct. 7 cases may be appropriate. It is worth noting that certain offenses are applicable only through martial law in military-operated tribunals. One example could be Article 58(d) to the Defense Regulations (Emergency), 1945. This archaic piece of legislation, originally legislated under the British mandate, is partially still in place. The specific article prohibits the “membership in any group or association of persons [who] while being members of that group or association” committed certain types of offenses, which may be applicable in the Oct. 7 trials. Crimes under this article are punishable by “death or such lesser punishment as the court may impose.”

Another jurisdictional proposal—already the subject of debate in the Knesset—would combine the creation of a special tribunal with amendments to the Unlawful Combatants Law. A bill sponsored by Members of the Knesset Simcha Rothman and Yulia Malinovsky envisions designating the detainees as “special unlawful combatants,” thereby extending the period during which they may be held in custody, while bringing at least some of them to actual trial before a newly established special court. This bill could be of significant importance on the political level. Rothman, who championed the bill and chairs the Constitution, Law, and Justice Committee of the Knesset on behalf of the Religious Zionism party, is a member of Prime Minister Benjamin Netanyahu’s governing coalition. Malinovsky is a member of Israel Beiteinu, a right-wing party that did not join Netanyahu’s coalition, and is therefore part of the political opposition in the parliament. As a result, the bill does seem to enjoy what could be considered a partial equivalent of bipartisan support, making it somewhat more politically likely to pass the necessary votes.

Under this proposal, this special tribunal would consist of 15 judges drawn from individuals “qualified to serve as Supreme Court justices” or from “legal experts who are not Israeli citizens or residents” but whom the justice minister, in consultation with the foreign affairs minister, deems to possess the relevant expertise and experience. The bill proposes that the exact policies for prosecuting the Oct. 7 defendants will be determined by a political “steering team,” but finds that the special tribunal will be empowered to adjudicate the illegal combatants who will be prosecuted for trying to commit genocidal acts. Some of these proposals may raise complex constitutional questions. Israel’s Ministry of Justice opposes this bill, with the attorney general’s representative warning it “undermines the independence of law enforcement authorities and could harm the international legitimacy of the proceedings.” According to a recent report in the Israeli media, the Ministry of Justice and the politicians involved had recently reached an agreement, under which a special tribunal will indeed be convened, but only sitting or retired Israeli judges will preside there. The Ministries of Justice, Defense, and Foreign Affairs will lead professional discussions regarding the prosecution policy but will not be authorized to discuss any particular, specific case.

From an American perspective, it is particularly important to note that, although Israel is a common law jurisdiction, it does not hold jury trials. Judges serve as the sole finders of both fact and law. Consequently, the composition of any tribunal—and the identities of the judges who preside—carries significance that extends well beyond procedural or administrative considerations. 

No Ordinary Trial

In addition to the question of which tribunal should adjudicate the Oct. 7 cases is another critical issue: what charges can be brought. The defendants will almost certainly face indictments for murder of the highest degree. The attacks also involved the systematic use of sexual violence and the kidnapping of civilians—each a grave offense under Israel’s Penal Law. Yet even where the legal framework is relatively clear, a conventional criminal trial raises evidentiary and practical challenges.

Under ordinary circumstances, prosecutors must obviously link a specific act to a specific perpetrator beyond a reasonable doubt. But when thousands of assailants carry out coordinated massacres across multiple sites, the conventional evidentiary practice will pose significant challenges. Many crime scenes were destroyed or heavily disturbed during prolonged military engagements required to regain control. As noted by Shai Farber and Ofek Efraim Alaluf in the Journal of Conflict and Security Law: “A substantial portion of the atrocities occurred under turbulent and unstable circumstances, with limited availability of physical evidence and eyewitness testimonies. The extensive damage caused by terrorists further complicated the collection and preservation of forensic evidence.” In such conditions, attributing an individual murder, sexual assault, or act of arson to a particular defendant may often prove nearly impossible. The question, then, is how Israel’s criminal procedure and the constitutional protections it offers—with its traditional burdens—can accommodate the realities of this mass atrocity.

Another set of challenging evidentiary and procedural questions may arise if the prosecution will seek to admit evidence that was obtained using confidential intelligence sources, or evidence collected in Gaza during the war. This may be especially challenging in two particular contexts. First, given the obvious nature of a war, chain of custody questions may arise, and it is not clear whether regular standards could apply regarding evidence that has been obtained in the strip during active war. Another complex question may surround evidence that is currently classified, especially if declassifying the evidence may reveal classified military operations.

A potential path forward could be to rely on doctrines of aiding and abetting, accomplice liability, or joint criminal enterprise to connect defendants to the crimes committed at the locations where they were captured—without requiring proof of who fired each bullet or committed each individual act. Israeli criminal law, like American criminal law, recognizes such theories of liability and guilt, permitting courts to hold individuals responsible for offenses committed by their partners in crime.

Yet the Oct. 7 prosecutions are likely to stretch these doctrines to their currently existing limits. The magnitude of the violence and the number of participants will invite novel legal arguments and complex defenses. Even under these frameworks, prosecutors will be required to disclose relevant evidence to the defense, allow representation, and attribute specific conduct to each defendant in connection with specific events—a process that will likely be extremely complex, time consuming, and resource intensive.

Some might also question whether treating Oct. 7 as a matter of “ordinary” homicide or kidnapping law captures the moral and historical gravity of the event. The attacks constituted a premeditated campaign of mass violence, which resulted in “the deadliest day for the Jewish people since the Holocaust.” To many, this was no ordinary crime, and it may not call for an ordinary prosecution.

Another approach under discussion is to charge the Oct. 7 defendants with broader, more symbolic offenses that may be both easier to prove and more reflective of the unique nature of the crimes committed. Such charges, however, would introduce a distinct set of legal and precedential challenges.

One proposal—advanced in the bill sponsored by Rothman and Malinovsky—seeks to define the Oct. 7 massacre as an act of genocide and to prosecute the defendants accordingly. While the notion of retroactive legislation, in the sense that it will retroactively amend criminal legal standards after the offenses have already been committed, raises difficult legal questions, Israel incorporated the Convention on the Prevention and Punishment of the Crime of Genocide into its domestic law as early as 1949, thereby allowing for prosecutions under that statute. Still, pursuing genocide charges would open a complex field of political, diplomatic, and doctrinal dilemmas, touching on Israel’s interpretation of international law and the meaning and application of the term “genocide.” For instance, it will require determining Hamas’s specific intent, debating how to define the “group” that has been targeted during the attacks, and drawing a distinction between the legal definition of massacre and genocide.

Another option—one that Eldar Gilran and I advanced in a Hebrew article published shortly after the Oct. 7 attacks—is to prosecute the Hamas militants under Article 97 of Israel’s Penal Law, which criminalizes infringement of state sovereignty. This offense is among the most severe in the Israeli code and enables the prosecution of individuals who unlawfully infringe upon the sovereignty of the State of Israel. More specifically, Article 97(b) states that “[w]hoever, with intent that any territory be removed from the sovereignty of the state or be brought under the sovereignty of a foreign state, commits an act capable of bringing about such a result, shall be punished by death or life imprisonment.” It could be possible to argue in court that on Oct. 7, Hamas militants tried to control parts of sovereign Israel, with the stated purpose of removing them from the sovereignty of the country.

According to publicly available legal databases, the provision has never been used in an indictment before. While prosecutions under Article 97 would still be unprecedented, they would not require retroactive legislation. The statute also provides for extremely harsh penalties—a life sentence or even capital punishment—and, importantly, may present fewer evidentiary obstacles, for instance, because it will not necessarily require proving which militant killed or attacked each victim specifically.

A related dilemma concerns the question of punishment and, in particular, whether the death penalty should be considered. Under Israel’s black-letter law, capital punishment is permitted only in a handful of narrowly defined circumstances. In practice, however, the death penalty has long been regarded in Israel as a dead-letter law and a legal and moral taboo. Despite the efforts of some politicians—especially from the far right—who have campaigned for years on promises to execute convicted terrorists, such measures have not been implemented. In fact, on Nov. 11, the Knesset voted in support of a bill championed by the far-right, that further institutionalizes the death penalty in terrorist cases, hence allowing it to advance in the legislative process. Israel, however, has carried out a lawful execution only once in its history: that of Eichmann, a key figure in the implementation of the “Final Solution,” who was hanged in 1962 after standing trial in Jerusalem.

If the prosecution were to consider seeking the death penalty at the sentencing stage following conviction, that decision would carry significant procedural implications for the adjudication itself. Under Israeli law, as described above, capital punishment cases must be heard as a special trial, technically within the district court, but presided over by a Supreme Court justice. Given that Israel has lawfully executed a person only once, in the 1960s, many constitutional aspects of this potential act were never challenged and are therefore likely to be challenged if the prosecution decides to test this path with Hamas militants. For example, Israel’s Basic Law: Human Dignity and Liberty—which could be described as Israel’s bill of rights—was legislated in the 1990s. Some observers would argue it limits the ability of Israel’s courts to execute defendants, given the constitutional status it grants to human rights, including the right to life and bodily integrity. In any case, Israeli courts never determined the legal questions that may arise under any constitutional doctrine in this regard. Any competent defense will certainly argue in that direction.

If, however, the prosecution adheres to Israel’s long-standing practice of avoiding capital punishment, it would likely seek multiple life sentences instead. That approach raises its own set of constitutional questions concerning the conditions of confinement for those serving such sentences. In a recent decision, Israel’s Supreme Court underscored the state’s obligation to “ensure the minimum standards [...] owed to every person held by it,” signaling that even in cases involving the most abhorrent acts of terrorism, the treatment of prisoners remains subject to judicial scrutiny and basic human-rights constraints.

In summary, following the ceasefire agreement between Israel and Hamas, Israeli authorities are likely to move forward with the prosecution of those responsible for the Oct. 7 attacks. These proceedings will raise a range of complex legal questions—spanning the framework of prosecution, jurisdiction, specific charges, evidentiary standards, and renewed debates over capital punishment and conditions of confinement for convicted terrorists. Whatever path the State Attorney’s Office ultimately chooses, the Oct. 7 trials will be unlike any in Israel’s legal history. They will require a fundamental reexamination of procedural structures, substantive doctrines of criminal law, and the practical mechanics of trying mass atrocity cases. The prosecution has at its disposal a range of tools to ensure that the Oct. 7 defendants stand trial and receive the full protections of due process—before, at long last, they face justice.