Hamas’ unprecedented raid in southern Israel has prompted a legal predicament: How does a country scarred by the deadliest attack in its history bring the perpetrators to justice?
Israel is holding hundreds of Palestinians from Gaza accused of taking part in the Oct. 7 attack that sparked its war with Hamas. It is grappling with how to prosecute suspects and offer closure to Israelis, including 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 Israel’s far-right 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 Israeli Justice Ministry. “There is no silver bullet here for how to try them.”
Israel’s criminal courts are distinct from the military courts.
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 an Israeli parliamentary 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.
For now, many of the suspects are said to be considered “unlawful combatants,” meaning Israel can extend their detention indefinitely, delay their access to a lawyer and keep legal proceedings classified.
Israel’s predicament is similar to the one the U.S. faced after the 9/11 attacks as it sought to capture al-Qaida leader Osama bin Laden. The U.S. sent hundreds of suspects to Guantanamo Bay in Cuba.
(AP & YWN Israel Desk – Jerusalem)
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One Response
If we wanted to read associated press articles we would. We don’t need YWN taking an AP article that blames Israel, editing it, and copy-pasted here.
You should be ashamed to take articles from anti Israel media.