Twenty-two Hamas terrorists who raped and murdered their way through Kibbutz Nir Oz on Oct. 7, 2023 will be hanged, British tabloid newspaper The Sun reported on May 3. Analysts JNS spoke with cautioned that justice will not be swift, however.
“It should be imminent. It should be quick. It should be easy. But the chances that’s actually going to be the case are very slim,” said Israel Defense Forces Lt. Col. (res.) Maurice Hirsch, who served as director of the military prosecution for Judea and Samaria and currently holds a senior position at the Jerusalem Center for Security and Foreign Affairs.
Israeli intelligence officers have collected reams of evidence to charge 22 Hamas terrorists, according to The Sun report. All of them were involved in the attack on Kibbutz Nir Oz. More than 40 residents of the kibbutz were murdered during the massacre and 76 kidnapped, including the Bibas children and their mother, who were later returned in coffins.
“Israel’s leading prosecutors believe that because of the callous nature of Hamas’s crimes, the beasts will likely be executed,” The Sun reported.
Hirsch, who was interviewed for an April 21 article by The Press Service of Israel (TPS-IL), which partly served as the basis for the Sun piece, told JNS that Israel’s state prosecutor has not moved forward with its case against the Oct. 7 terrorists.
“From start to finish, I think the Nuremberg trials took 19 months and we’re not even close. We haven’t even started yet,” Hirsch said. The prosecution could be taking its marching orders from Israel’s leadership, he noted, which may want maximum flexibility while negotiating for the release of the hostages still held by Hamas in Gaza.
Hirsch expects that the trials will drag on. The terrorists’ lawyers will demand copies of the evidence (a six-month process even before the trial begins, he estimates). Then, a lengthy trial will follow, which will include the testimonies of families. An “automatic appeal” process will kick in afterwards.
“From representing families of victims of terror, I can tell you they never understand why a case, in which the murderer was caught at the scene of the crime with the murder weapon in his hand, still takes a year,” Hirsch said.
“Remember the murder of Rina Schnerb in August 2019? That is still ongoing. Most of the time they’re arguing about the admissibility of confessions given by the defendants,” Hirsch said.
The Oct. 7 cases will be far more complicated with hundreds of terrorists involved and evidence to sift through to prove their complicity. “An additional requirement, which is the fundamental basis of all of these proceedings, is to prove that this was a wider attack on Israel as part of a coordinated Iranian-funded plan set out by Hamas,” he said.
Whether the terrorists will ultimately be put to death remains an open question. Israel has carried out only one execution in its history—that of Nazi Adolph Eichmann in 1962.
IDF Lt. Col. (res.) Meir Indor, founder of the Almagor Terror Victims Association, told JNS that the death penalty is necessary for both security and morality.
“We need the death penalty as another tool in the fight against terrorism. Will it stop terrorism? No, but it will reduce it. Now, terrorists sit in prison. It’s not the greatest pleasure, but from their perspective, it’s OK,” Indor said. “In jail, they understand there’s a chance to be released. That’s why it’s so important to them to continue kidnapping. The answer to that is the death penalty.”
As to the moral element, Indor says there are victims’ rights, which include the right to redress. “Families don’t want to see a terrorist walking around with a smile on his face, whether in or out of prison, while their child is buried in the ground.”
Nothing will happen unless the public demonstrates that it wants a death penalty, Indor said. “It all depends on how many people dedicate themselves to a public struggle. It will not be a top-down decision of the political leadership.”
Over the years, there have been legislative efforts in the Knesset to introduce a death penalty for terrorists. Most recently, Otzma Yehudit Party MK Limor Son Har-Melech submitted a bill that passed a preliminary reading in the Knesset plenum in March 2023. It has since stalled. In November 2023, the Likud Party said it had no plans to advance it.
Hirsch said special legislation isn’t needed. “The regular criminal code has a death penalty. The 1951 Genocide Law has a death penalty. These things already exist. There’s no need to reinvent the wheel here,” he said.
The death-penalty bills concern the military courts in Judea and Samaria. (Not being under Israeli sovereignty, the area follows a different system.)
The military courts there require a unanimous decision of a three-judge panel, all of whom must hold the rank of lieutenant colonel, Hirsch explained. “The Knesset bills are generally attempts to make it so that the court’s ruling doesn’t have to be unanimous. And that the judges’ rank can be lower,” he said.
The crimes committed on Oct. 7 were not in Judea and Samaria but in southern Israel, which falls under Israel’s civilian court system. While there are military courts within Israel proper, they’re ill-equipped to deal with punishing terrorists, Hirsch said.
Israel’s military courts haven’t heard a case involving terrorism in more than 25 years. The last time was when the Lod Military Court tried a terrorist in 1997-98, Hirsch said.
Israel’s military court system derives its authority from a 1945 security regulation that has “no offense for murder, no offense for rape and deals with things like wrongfully discharging a firearm,” he said.
The civilian courts are therefore the best place to bring the terrorists to trial, Hirsch said, especially as the death sentence is applicable if the crimes are carried out during a time of war, “which was obviously the case on Oct. 7.”
“There are no legal impediments. It’s just a question of whether we have the guts and the determination to ensure that these butchers receive the maximum punishment,” Hirsch said.
Hirsch agreed with Indor that Israeli public pressure would have to play a crucial role, if only to prevent judges who have an “ultra-liberal agenda” from deciding they won’t hand down the death sentence because they don’t philosophically agree with it.
“Support for the death penalty would need to be voiced to ensure that the judges put aside their personal opinions and actually work according to the law,” Hirsch said.
Israel also will have to withstand international pressure. “There will be a tremendous outcry while the trial is going on and while waiting for the appeal. ‘How can this happen, even to the most heinous of criminals?’ That’s what the world will say,” he said.