On May 11, the Knesset voted 93-0 in favor of a law providing a legal framework for the prosecution of terrorists involved in the Oct. 7, 2023, Hamas invasion. The law was hailed as “historic” by its legislators.
The legislation details how judges and prosecutors are to be selected, how trials are to be conducted, and provides for an appeals process.
“The purpose of this law is to regulate the prosecution of perpetrators of acts of hostility, murder, sexual crimes, kidnapping and looting carried out by the Hamas terrorist organization and its partners as part of the murderous terrorist attack,” its explanatory section says.
Analysts JNS spoke with hope that it will facilitate the trial and conviction of the terrorists responsible for the worst massacre of Jews since the Holocaust. Gazan invaders killed at least 1,200 people and took 251 others hostage.
The law establishes a special military court in Jerusalem dedicated to trying the terrorists involved in the attack on Oct. 7-10, 2023. These will include the Nukhba terrorists, the “elite” Hamas force that spearheaded the attack.
There are an estimated 300 Nukhba terrorists in Israeli prisons. They are among several thousand terrorists and suspected terrorists detained by Israel since the war’s outbreak.
Indictments are expected to be brought against 400 suspects. That number may increase dependent on ongoing investigations.
Judge Haran Fainstein, a retired Israeli judge who teaches at Bar-Ilan University’s Department of Criminology, told JNS, “The ‘regular’ courts and the military courts do not have the manpower or the facilities to handle such complicated cases.”
Knesset member Simcha Rothman of the Religious Zionism Party, who sponsored the law together and MK Yulia Malinovsky of the Israel Beiteinu Party, told the Knesset Channel this week that a regular court would have taken a minimum of 15 to 30 years to reach a verdict. “Here, we will start to see verdicts within three to five years, even less,” Rothman said.
Avraham Russell Shalev, an international law expert at the Jerusalem-based Kohelet Policy Forum, told JNS: “The recently passed law is a rare opportunity for justice to be done. While Israel is falsely accused of atrocities, the world has mostly forgotten the real horrors perpetrated by Hamas on Oct. 7. This is a chance to remind the world and punish the perpetrators.”
Rothman referred to the importance of the educational component of these trials. “There’s an interest in broadcasting this to the world and broadcasting it to the public in Israel. Everything will be recorded and preserved in the archives for the coming generations,” he told the Knesset Channel.
Justice Minister Yariv Levin of the Likud Party also referred to the historical aspect of the trials. “This law ensures not only justice, but also historical documentation,” he said.
Malinovsky said, “There will be an orderly, filmed and broadcast legal proceeding. These will be the trials of the modern Nazis, and it will go down in the history books.”
‘The inexcusable delay’
Avi Bell, an Israeli professor of law at the University of San Diego School of Law and at Bar-Ilan University’s Faculty of Law, told JNS, “Hopefully the new law will end the inexcusable delay, and result in the trial and conviction of the Palestinian terrorists, and the imposition of capital punishment.”
He lays the delay in trying the terrorists at the feet of senior Israeli law enforcement officials, who “for reasons that have not been articulated, and are unfathomable to me,” have refused “to take any steps to try, convict and punish the thousands of Palestinian terrorists who have been captured by Israel and bear responsibility for the atrocities of Oct. 7, 2023.
“It is evident that the pursuit of justice for the Palestinian terrorist crimes will remain in a deep freeze unless law enforcement is forced to act,” Bell said.
Although one of the law’s key provisions permits courts to apply the death penalty, not only for acts of murder but for extreme crimes, such as rape, which the Oct. 7 terrorists carried out with abandon, Bell said one of the issues he has with the law is that it doesn’t go far enough “to advance the probability of capital punishment for convicted terrorists.”
The law also prohibits the inclusion in prisoner release deals of terrorists who are “suspected, charged or convicted of an offense committed” in connection to the Oct. 7 atrocities.
“The law’s success will ultimately depend on the degree to which military prosecutors live up to their legal duty, a duty that law enforcement has shirked to date, and the degree to which the judges understand that every punishment must leave the terrorists with no hope that their comrades in arms will win their future release by seizing new hostages,” Bell said.
Those who brought about the law are positive it will be effective. Rothman, speaking before the Knesset plenum just before the vote, said: “This is a historic plan designed to do justice and bring to justice the terrorists who carried out the most horrific massacre in the history of the state.”
Malinovsky said in her speech: “The State of Israel is a state of law. These terrorists will be tried in court, according to all the rules, and the judges will sentence them. … I dedicate this law to all the murdered, the hostages and the families. In the end, our spirit and our ability to cope and face the immense pain—that’s what makes us great.”
