Changes to the regulations regarding the arrest of suspects; defining terrorists as “unlawful combatants'; setting up special courts; indicting hundreds of detainees under the same charge; and examining the implications of imposing the death sentence. These are just some of the weighty issues that a special thinktank from the Israeli Justice Ministry has been grappling with for the past five weeks as it tries to decide how the State of Israel’s legal system will deal with the Hamas terrorists who perpetrated the October 7 atrocities and who are currently being held by Israel. The thinktank’s discussions are being held in secretary  because of the fateful significance that some of these issues could have on the very nature of the country.

“These are discussions that happen once in many years – if at all,” one official from the justice system told Shomrim. Like many of the other people interviewed for this article, he preferred to remain anonymous due to the sensitivity of the issue. “They will have very profound ramifications, and I have no doubt that everyone involved is all too aware of the importance of the moment. But we are no less aware of the clash between ensuring that Israel adheres to its own regulations as a law-abiding country and the fact that all of us – and by that, I mean the whole country – would not object to seeing those terrorists with a bullet in the head.”

The Justice Ministry said that it is not responding to questions on the subject at this time.

Indeed, the legal challenge currently facing the Israeli justice system is the kind that countries are only forced to address under extremely rare circumstances. In fact, October 7 was such an extreme criminal incident that it is doubtful that the legal system is capable of dealing with it. Although Israel has faced weighty and complex legal challenges in the past – the trials of Adolf Eichmann and John Demjanjuk, the abductions of Mustafa Durani and Sheikh Abdel Karim Obeid, and so on – none of these cases bear any resemblance to the massive terror onslaught that Israel is now dealing with.

There are hundreds of Hamas terrorists currently detained by the Israeli security forces, and they must be brought to justice. But in which court? Should Israel prosecute them in accordance with the country’s criminal laws? Should their cases be handled by the military courts, which operate in the West Bank? Indeed, is the existing legal framework even capable of passing judgment on terrorists who took part in such a monstrous incident?

“I’ve been thinking about the Nuremberg Trials and something that the Chief United States Prosecutor Robert Jackson said. He said that we must stay the hand of vengeance to the judgment of the law,” says Prof. Amichai Cohen, an expert in the law of armed conflict at the Israel Democracy Institute and a member of the Faculty of Law at Ono Academic College. “Of course, we are instilled with the desire for revenge but we are a Western nation, so we will conduct a proper legal process, we will expose the crime to the world, we will put the terrorists on trial and maybe in the end it will be decided to execute them. But it will not be barbaric revenge.”

"It will not be a show trial – we have to be careful of that expression – but Israel has excellent reasons to settle the score with the October 7 terrorists and we must do so in a normative way. What we will soon see here will be a significant milestone for the Israeli judicial system.”

The Emergency Regulations Have Changed: Unlimited Detention for Terrorists

Even now, more than five weeks since the terror attack, Israel is not revealing how many terrorists have been captured and detained. At the same time, it is known that several hundred of them have been moved to detention centers across the country. Since their arrest, investigators from the Shin Bet and Military Intelligence’s 504 Unit have been extracting intelligence information from the terrorists. These spine chilling details have shed much light on Hamas’ meticulous planning for the attack, how they learned the lay of the land in advance, memorized maps and the names of targets – as well as the organization’s plans to capture targets in the center of the country as well. Videos of some of these interviews are occasionally shared with the media, at the initiative of the defense establishment.

These interrogations are yielding a lot of important intelligence but they take time and Israel, as a country that abides by the rule of law, has to decide: By what authority are they being detained. 

One of the first problems that arises in this context is how to define Hamas terrorists. The first option was to define them as prisoners or war, but this was immediately rejected since it would be de facto recognition of Hamas as a “state.” Moreover, to do so would be to prevent Israel from charging them and the terrorists would be predefined as destined to be returned to their “country” as part of an exchange. In light of this, it was decided that at least some of the terrorists would be defined as “unlawful combatants,” a legal status that was introduced in Israel in 2002, when the Knesset passed the Law on Incarceration of Unlawful Combatants in response to the prolonged incarceration of Obeid, who had been abducted from Lebanon in 1989 over his suspected involvement in holding missing Israeli airman Ron Arad.

The concept of unlawful combatant is not recognized by the international rules of war but the United States also made use of the idea in the aftermath of the September 11 terror attacks. As far as Shomrim knows, not all of the October 7 terrorists have been defined as unlawful combatants and the Shin Bet has the authority to decide which of them meet the criteria. It appears that the decision will be made in accordance with the rank of the terrorists within Hamas, the role they played in the attacks or the information they pass on. Those terrorists who are not defined as unlawful combatants will be processed in accordance with Israel’s criminal system; their remands will be extended at supervised court hearings and the evidence against them will be presented.

This presents one immediate problem since Israel is not equipped to bring hundreds of terrorists before judges for more and more remand extension hearings. Therefore, the first change was introduced a few days ago: Shomrim discovered that the Justice Ministry has changed Israel’s (Emergency) Defense Regulations in relation to detaining suspects – specifically the detention of Hamas terrorists – so that following the first detention hearing for a terrorist, he only needs to appear against before a judge within 45 days. Currently, the law obligates the state to hold a second remand hearing for a suspect within 15 days.

The change also stipulates that, the moment the prosecution submits a statement indicating that an indictment is coming, the suspect can be held indefinitely. The current law only allows the state to hold a suspect for five additional days. The change to the emergency regulations was not granted automatically and was preceded by a discussion. The Justice Ministry backed the move, but the Public Defense had reservations, in part because the state is obligated to conduct close judicial monitoring of the October 7 detainees given concern that there may be some innocent people who were detained by mistake. These arguments were rejected, however, and the changes were approved.

The concept of unlawful combatant is not recognized by the international rules of war but the United States also made use of the idea in the aftermath of the September 11 terror attacks. As far as Shomrim knows, not all of the October 7 terrorists have been defined as unlawful combatants and the Shin Bet has the authority to decide which of them meet the criteria.

Charges in the Chaos: Joint Trials Would Need New Laws

When it comes to the criminal process, the work that police teams did on the ground will be hugely important: locating DNA (and semen, too, in the case of rape) and any other forensic evidence that will later be used in court to prove that the suspect committed the crime. The atrocities that were perpetrated in the western Negev on October 7, however, left a trail of total chaos, making it hard to put together cohesive cases against individuals. Investigators from the Lahav 433 crime fighting unit have been working round the clock for the past month to collect testimony from terrorists and to locate evidence that proves each crime they have confessed to. At the same time, testimony has been collected from most of the survivors of the communities that were attacked and the party at Re’im.

“Collecting the bodies – of the terrorists and the Israeli who were murdered – was done under terrible conditions and not from the perspective of the criminal legal process, of course. It was only at a relatively late stage that they started to think about the criminal element,” says Cohen. “The problem is that you do not embark on a criminal prosecution unless you know all the forensics. If you want to accuse a specific terrorist of a specific murder, you have to be able to locate the body of the person he killed. In this incident, quite naturally, no one marked where they found a body and no one checked the immediate surroundings. It was not an incident when anyone was thinking about collecting evidence.”

The problem of creating personal files, with irrefutable evidence, against each and every terrorist is one of the main issues that top Israeli jurists are now wrestling with. “It is quite clear  that the October 7 detainees are going to be singled out legally. We currently speak of those who were involved in the actions of the initial attack, and not about all the accompanying security cases. one legal official involved in the matter told Shomrim. “That will be the case for anyone involved in the initial attack and not all of the accompanying security cases.”

“The evidential problem is huge. Even if it is clear that everyone who was arrested took part in the atrocities, in murder, looting, rape – it’s still extremely difficult to say who did what. A lot of material has been collected [mainly messages and videos – RS] and the police are doing the painstaking work of trying to connect each terrorist to the events. To identify the terrorists sitting in the interrogation rooms. But you don’t always see everything in all of the videos and the survivors are not always able to say exactly who attacked them. There’s no clear evidential chain. There are a lot of evidential questions which motivate us to try and come up with a solution whereby everyone is tried together. They could, for example, all be charged with a series of crimes as co conspirators. This, however, also raises a number of issues in terms of how the trial is conducted. Even now it is clear that these terrorists will have to be handled with different and special legal tools because the existing tools simply are not suitable.”

The acknowledgment of guilt by many terrorists during interrogations, with some expressing pride in their heinous acts, does not simplify the intricate legal challenge at hand. While confessions can serve as a basis for indictment, additional evidence is essential. Opting for prosecution under the criminal legal code in Israel would require the presentation of proof for each crime, necessitate evidentiary hearings, and entail debates over the details of every video frame. Conversely, a choice to collectively prosecute the terrorists would compel Israel to modify its legislation to align with international law standards.

Investigators from the Lahav 433 crime fighting unit have been working round the clock for the past month to collect testimony from terrorists and to locate evidence that proves each crime they have confessed to. At the same time, testimony has been collected from most of the survivors of the communities that were attacked and the party at Re’im.

The Representation Issue: Which Israeli Lawyer Would Agree to Defend a Terrorist?

A few days ago, the Public Defense denied reports that emerged in the immediate aftermath of the October 7 attacks that it was refusing to represent terrorists, saying that any such move would open the door to lawyers refusing to represent certain clients in other criminal cases. At the same time, for now at least, it seems that there is not a single defense attorney in the State of Israel who is willing to take on these cases. The Public Defense has informed the Justice Ministry that it does not believe that these terrorists belong in the criminal legal system and that the state should consider a different judicial framework and a different form of representation.

Now the question is: Who will represent them? Eichmann was represented by a German lawyer, Robert Servatius, after no Israeli attorney would agree to defend the Nazi war criminal. Servatius’ fees were paid by the state and Israeli law had to be changed to enable this. “In the Eichmann trial, there was no danger of exposing information to a foreign attorney since the Holocaust ended long before that,” Cohen explains. “In the current case, we are still in the middle of an ongoing event. The state would have to share information with any lawyer representing a Hamas terrorist and that would be highly problematic.”

According to Cohen, defense attorneys in military courts do not get full access to all of the information availble and, as a result, they have long sought for the adoption of the same model that the United States chose for inmates at Guantanamo Bay: “Appointing local defense attorneys who have undergone security vetting, who work with a foreign attorney – but only the local attorney has access to the case material. But it’s a very complicated process.”

Shomrim has been told that many of the detained terrorists said during interrogation that they do not want legal representation. As soon as one of them does, however, Israel is obligated to provide them with one. At least, that is what the law currently stipulates.

“Everything is being conducted with a sense that, in the aftermath of a massacre like the one we witnessed, we all want to put a bullet in these terrorists’ heads. But the question of the death penalty, and whether Israel should seek it for these terrorists, has dramatic ramifications.”

The Judgment Issue: Will Israel Open a Special Court for Terrorists?

Another significant dilemma facing the Israeli judicial system is where these terrorists will be put on trial. If they are tried in the regular criminal justice system, their cases will go before three-judge panels in the District Court. Since only three District Courts in Israel have three judges, holding the trials of the October 7 terrorists there would create a bottleneck that the legal system simply cannot deal with. The Director of the Court's Office warned about this just last week.

“There are several models that are doubtless being considered,” Cohen says. “First is the regular criminal justice system, which means the District Courts. With all of the complexity this entails, this is how murderers and security prisoners have been tried until now. Others have been tried in the military court system, which operates a similar criminal system.” In this context, it is important to note that the military courts can only try residents of Judea and Samaria [the West Bank]  and not those from the Gaza Strip, where the October 7 terrorists are from. In the past, a military court operated in Lod where people who were neither Israelis nor from the West Bank were put on trial. That court has closed, but it is not inconceivable that a similar solution will be adopted for the October 7 trials.

“The option that is doubtless being weighed most seriously is the establishment of a dedicated court. At the heart of this idea is the argument that October 7 was a unique crime and, to express the contempt in which we hold its perpetrators, we want to set up a special judicial system,” says Cohen. “Within the framework of international criminal courts, there is a significant place for the victims and their standing – something that Israel would no doubt be glad to give prominence to.

“On the other hand, in these courts, there is a desire to show the international nature of the attack. That is, that the war crimes in question were not committed just against citizens of Israel, but against the entire world. These courts have judges from different countries, to show that the handling of the crimes is international, and that is something that I cannot see happening in Israel. A special court for the October 7 terrorists would define the terror attack as an extreme and unique event and would seek to publicly display the heinous crimes committed.”

Jurists involved in the current discussions have confirmed to Shomrim that all the above mentioned models are being examined. “The establishment of a special tribunal is one possibility. So is copying the military committees that operated at Guantanamo. In Bosnia, they set up a court that was given different powers, rules and judges – and then of course one could look at the international courts that were established ad hoc in Yugoslavia and Rwanda. Each of these options presents challenges and limitations, so it is obvious that we have to create a different and special framework here – but one that the world will look at and understand that Israel is a country that abides by the rule of law and by international law, in a measured manner. The legal proceedings in this case must be conducted with strict adherence to the rules. It must happen openly and transparently, so that the world sees everything.”

“No normal or even democratic country executes people through the legal channels without making extraordinary efforts to ensure that they are killing the right person. The process must be exacting if that is to be the punishment,” Cohen points out.

The Death Penalty: ‘Judges Have to be 100 Percent Convinced’

Questions about how Israel will judge the October 7 terrorists inevitably also raise the question of the death penalty. “The discussions within the Justice Ministry come at a very tough time for the Israeli legal community,” says one person involved in the talks. “Everything is being conducted with a sense that, in the aftermath of a massacre like the one we witnessed, we all want to put a bullet in these terrorists’ heads. But the question of the death penalty, and whether Israel should seek it for these terrorists, has dramatic ramifications.” And all of this comes before one considers that the death penalty in Israel is, first and foremost, a political issue.

Some seven months ago, the Knesset approved the preliminary reading of a bill submitted by MK Limor Son Har-Melech (Otzma Yehudit) imposing the death penalty on terrorists, even if the judges’ verdict is not unanimous. Moreover, the death penalty would be mandatory for anyone convicted of a nationalist-motivated murder – providing the culprit is not Jewish, that is. The proposed law infuriated human rights organizations and did not garner much support from members of the ruling coalition in its original form. A few days ago, National Security Minister Itamar Ben-Gvir demanded that the security cabinet convene to advance approval of the law.

In Israel, the death penalty is only applicable to Nazi war criminals and anyone who abetted them, to soldiers found guilty of treason and to terrorists convicted of murder, as long as their conviction was unanimous. In practice, since the establishment of the state, Israel has only ever executed two people. “I understand that it would be a catharsis, but you have to understand that it is extremely hard for judges to impose the death penalty in practice,” says another person involved in discussions when asked whether dozens or even hundreds of October 7 terrorists could be executed. “The judges have to be 100 percent convinced that the terrorist standing in front of them committed the acts he is accused of. Given that it is far from clear how you can argue conclusively that any given terrorist committed a certain crime, this could be highly problematic.”

The Public Defense also objects to any move in that direction, warning that “the moment the dam is burst and we start executing people, the question will then be asked why we don’t also execute someone who undoubtedly rapes little girls. And how will we differentiate between a horrific murder committed on October 7 and one committed on a different date, for which the punishment until now has been 30 years in prison? Exception arrangements seep through into criminal law and we have to be extremely cautious from the outset.”

“No normal or even democratic country executes people through the legal channels without making extraordinary efforts to ensure that they are killing the right person. The process must be exacting if that is to be the punishment,” Cohen points out. For that reason, and for all the others, Israel must have an ordered legal process. In part to create international legitimacy, but also for us as a nation. Only that way can we find out the truth and ascertain exactly what happened.”

“The historical, international and national elements are important. A trial like this, no matter where it takes place, must be an expression of national trauma,” the source who spoke to Shomrim says in summary. It will not be a show trial – we have to be careful of that expression – but Israel has excellent reasons to settle the score with the October 7 terrorists and we must do so in a normative way. What we will soon see here will be a significant milestone for the Israeli judicial system.”