How should Israel bring Oct. 7 terrorists to justice?
Mass criminal trials could overwhelm Israel's already sluggish courts. An ad hoc war crimes tribunal established under the current government could lack credibility. Freeing the suspects as part of a deal to release hostages held in Gaza would trouble many traumatized Israelis.
Adolf Eichmann in the
Jerusalem courtroom where he was tried and convicted of war crimes
committed during World War II. He was hanged on June 1, 1962.
Hamas' unprecedented and brutal attack on southern Israel on Oct. 7 has prompted a legal predicament: How does a country scarred by the deadliest attack in its history bring the perpetrators to justice?
Israel has arrested hundreds of terrorists from Gaza for taking part in the massacre that sparked its war with Hamas. It is grappling with how to prosecute suspects and offer closure to 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 the current 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 Justice Ministry. "There is no silver bullet here for how to try them."
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 seniors, and is still holding 134 of them.
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.
Kaplinsky presented a plan to a Knesset 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.
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