Israel is preparing a special military tribunal to prosecute an estimated 300 suspects captured during the Hamas-led invasion of Israel on Oct. 7, 2023. Any tribunal defendants convicted of the gravest crimes, including genocide and mass murder, may be subject to capital punishment. Israel has imposed the death penalty only twice, most famously after the 1961 trial and conviction of Nazi official Adolf Eichmann in Jerusalem.
Israel’s military tribunal law, called the “Prosecution of Participants in the October 7, 2023 Massacre Events Bill,” which went into effect on May 11, has been condemned by pro-Palestinian advocates as a travesty of due process. Their arguments lack merit.
Israel’s tribunal law contains the same basic due process protections found in the U.S. and other democracies. There is a presumption of innocence. The prosecutors bear the burden of proof. Guilt must be proved beyond a reasonable doubt. Each defendant may retain counsel or the court will appoint one. Attorney-client privilege is respected. The defendant may attend the trial, cross-examine witnesses and avoid self-incrimination. There are opportunities for appellate review, including automatic appeals of any death penalty convictions.
This legal framework resembles the major war crime tribunals of the last century. Such tribunals were established in Nuremberg and Tokyo after World War II. Then came the 1993 tribunal in The Hague to prosecute war crimes in the former Yugoslavia and the 1994 tribunal formed in Tanzania after the Rwandan genocide.
Israel’s tribunal guidelines meet the due process standards of the International Criminal Court, which prosecutes certain international crimes.
A review of the main due process challenges to Israel’s tribunal law reveals where they fall short:
Public Trials: Israel’s tribunal proceedings will be streamed to the public through a dedicated website. According to the groups the Palestinian Human Rights Organizations Council (PHROC), Adalah and Justice Info, making a spectacle of the proceedings will reduce them to political “show trials” and thereby undermine the presumption of innocence.
The tribunals in Nuremberg, Tokyo, The Hague, Tanzania and Jerusalem were all open to the public. Article 54(f)(1) of the ICC’s rules also makes trials open to the public. As Americans know, the Sixth Amendment of the United States Constitution guarantees criminal suspects the right to a “public trial.” The public role is considered a pillar of democracy because it keeps prosecutors, witnesses and judges accountable.
Joint Indictments: Israel’s tribunal rules permit a single indictment to charge multiple defendants. Adalah and the International Bar Association’s Human Rights Institute (IBAHRI) say this protocol will create “mass trials” of defendants that suppress individual defendant rights.
The Nuremberg tribunal prosecuted 24 defendants under a single indictment. In the Tokyo tribunal, 28 suspects were prosecuted under one indictment. An indictment in The Hague tribunal covered three suspects. In Tanzania, four individuals were charged jointly. ICC Article 64(5) expressly permits the joint indictment of suspects.
Joint indictments are standard in the United States, Canada, the United Kingdom and other democracies. Where multiple criminal suspects act within a common set of circumstances, prosecuting them together promotes judicial efficiency. Such consolidation is especially appropriate for the Oct. 7 trials if investigators cannot tell exactly which militants killed which victims.
Flexible Rules of Evidence: Israel’s tribunal law allows judges to deviate from the state’s regular rules of evidence where necessary to resolve questions of fact. Justice Info and IBAHRI say the judicial latitude erodes the right to fair trials in the 1966 International Covenant on Civil and Political Rights (ICCPR).
The ICCPR endorses the right to fair trials but does not address military tribunals or any rules of evidence. In the tribunals of Nuremberg, Tokyo, The Hague, Tanzania and Jerusalem, judges were given broad discretion to apply the rules of evidence. Similar leeway is granted in ICC Articles 15-18.
Judges need flexibility to retrace the atrocities of a war zone, where parties may find unusual types of evidence or evidence that is hard to authenticate. Questions may also arise regarding whether and how to disclose classified information.
Majority Decisions: Israel’s tribunal law requires the appointment of professional judges and permits each three-judge panel to convict a defendant based on a two-thirds majority vote. PHROC, Adalah and IBAHRI insist the verdicts should be unanimous, especially in capital cases.
The rules for tribunals in Nuremberg, Tokyo, The Hague, Tanzania and Jerusalem permitted convictions by majority vote. ICC Article 74(3) takes the same approach.
In many democracies, a criminal trial verdict is decided by a majority vote among professional judges. Other democracies prefer a unanimous verdict by a lay jury. Still others seek a majority vote among a mix of professional and lay judges. There is no consensus on the point.
Simon Wiesenthal, a Holocaust survivor and hunter of Nazi war criminals, said the Nuremberg prosecutions delivered a fitting blow for justice and a vital record for history. If he could see Israel’s tribunal law, he would be proud.
