Over 100 days after they massacred Israelis in kibbutzim and cities near the Gaza border, hundreds of Hamas terrorists who participated in the Oct. 7 attack remain in Israeli prisons. The terrorists are in administrative detention, and a recent Knesset amendment extended the period in which the state can bar them from seeing a lawyer until April, as they await trial.

But the kind of trial they will face remains an open question — one that the Justice Ministry began to consider shortly after the attack, and one that will likely require legislation. The Knesset Law, Constitution and Justice Committee has established a confidential subcommittee meeting to discuss prosecuting Hamas terrorists who are part of the group’s special forces unit, Nukhba; the subcommittee held its second meeting on Sunday.

Committee Chairman Simcha Rothman of the Religious Zionist Party told Jewish Insider that “the Justice Ministry already understands that we need an amendment to the law, because current criminal law does not fit the events of Oct. 7.”

Regular courts would likely be overwhelmed by the number of terrorists who would need to be put on trial, creating a backlog and long delays, Chagai Vinizky, a military judge and candidate for the Supreme Court in 2021, noted in a paper for The Begin Institute for Law and Zionism submitted to the subcommittee. 

Rothman expressed concern that such lengthy regular criminal proceedings “would be taken advantage of to disrupt investigations and coordinate between [the Nukhba terrorists].”

There are also difficulties in finding evidence to tie individual terrorists to specific victims beyond a reasonable doubt, as required in a murder trial. DNA samples were not collected according to usual procedure in light of the scale of the attack — 1,200 killed and thousands injured — and the need to collect the bodies in what remained an active combat zone for days. Other than the attack on the Nova music festival, the vast majority of the survivors hid and were unable to provide eyewitness descriptions of the killers. In addition, the terrorists burned many structures and bodies that could have carried evidence.

Yet, Israeli law allows for the death penalty or life in prison for those who abetted or failed to prevent genocide, including incitement or attempted participation, which may be easier to prove. In the case of Oct. 7, GoPros and cell phone recordings provide video evidence of the presence of terrorists during the attack. In addition, genocide charges would “express the unique severity of the actions,” according to the Begin Institute paper. 

“There is no doubt that the goal of the massacre was to murder as many Jews as possible because they were Jews … There is no need for the massacre to have been of hundreds of thousands of victims,” the paper stated, noting that in 2013, Israel extradited a participant in the 1995 Srebrenica massacre, in which 7,475 people were murdered, for the crime of genocide.

Israel abolished the death penalty for murder in 1954, but crimes against humanity and treason are still capital crimes. The only people to be sentenced to death and executed in the State of Israel are Meir Tobianski, a military officer accused of espionage in 1948, who was exonerated after his death by firing squad, and Nazi mastermind Adolf Eichmann in 1961.

Professor Amichai Cohen of the Israel Democracy Institute told Walla! News that, to allow for the option of the death penalty, the regular criminal process cannot be used because even if the law is changed such that capital punishment for murder is brought back, it can’t be applied retroactively to Oct. 7. 

As such, the only existing options in Israel law, according to Cohen, are to establish a military court for terrorism committed in Israel, or to establish a special court for the Oct. 7 attack.

The massacre “reminds us of the Eichmann trial, but he was one person. In this case, we have to establish a special court system that will try a large number of terrorists,” Cohen said. “The advantage of such a court system is that it gives the victims the chance to make their voices heard strongly. That is part of what the Eichmann trial did, and that is the model that is supposed to deal with crimes against humanity and the death penalty is more understandable in relation to such severe crimes.”

However, Cohen also expressed concern that executing Oct. 7 terrorists could lead to Hamas killing Israeli hostages.

Israel had a military court in Lod, in which the perpetrators of especially heinous terror attacks committed inside sovereign Israel were prosecuted until it shut down in 2000; currently, military courts only hear cases of terrorism in the West Bank.

The Begin Institute recommended the reestablishment of the Lod court as a “Special Military Court for Crimes against the Jewish People, the Citizens of Israel and Humanity,” with the authority to try the Nukhba terrorists for crimes that are already on the books in Israel, such as genocide, not preventing genocide, terrorism and others. The evidentiary standard in a military court is lower than in a civilian court, based on British Mandatory law, and similar to U.S. equivalent courts.

A military court would also mean that the military defense attorneys would be appointed to the terrorists, who may have difficulty finding attorneys in the civilian world after the Public Defender’s Office announced it would not represent Oct. 7 terrorists.

The paper compared the establishment of a special military court to the Nuremberg Military Tribunal established by the U.S. after the initial Nuremberg Trials, in which only very senior Nazis were tried. Ultimately, the tribunal held 12 group hearings and tried a total of 177 Germans, some of whom were sentenced to death. Cohen said that group hearings for Oct. 7 terrorists may be possible.

The Begin Institute viewed the example of American military commissions, such as the one established in Guantanamo Bay after the Sept. 11 attack, as more relevant. The paper stated that Israel’s situation is similar to what President George W. Bush described in the November 2001 order establishing the commission: “Given the danger to the safety of the United States and the nature of international terrorism … it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” In addition, 9/11 perpetrators could only be represented by military lawyers or civilians with security clearance.

Though Israeli experts seem to favor a military court of some kind, Rothman said that “many options are on the table.”

“I think we really need to consider these processes very thoroughly and pay attention to lawsuits from the hostages and their families,” Rothman said. “We have to think outside the box. I don’t know that a military court solves all of the problems. I do think that the more time that passes, the more it seems the regular criminal process is not the right direction for many reasons, but mainly how long it takes and the large quantity of people potentially on trial … It will be endless.”

Rothman also said that the decision will have broader implications, pointing to the Palestinian terrorist infiltration into the town of Adora in the West Bank earlier this month: “If the terrorists had succeeded, they would have done the same thing [as Oct. 7]. If they had been caught alive, would we say it doesn’t count because it didn’t happen in the Gaza envelope? This raises questions about responding to terrorism not only because of the Nukhba force, but rather more broadly.”

The Religious Zionist lawmaker said that the Knesset is the place to advance the matter, because “the [legal] establishment is acting based on a conception that we know is no longer appropriate, but [its members] aren’t able to build something new…The Knesset must have its say.”

As one of the leading figures advancing judicial reform, Rothman had a highly controversial 2023. Yet on this issue, he said the opposition and coalition are cooperating well.

“There are some gaps, [Yisrael Beiteinu MK] Yulia Malinovsky wants the Knesset to be more proactive, Yoav Segalovich [of Yesh Atid] wants the Justice Ministry to do more, but there is no real disagreement that there needs to be action. There is an understanding that we need to find a consensus,” Rothman said.

Rothman said that the Hamas terrorists’ trials will not begin as long as intense warfare continues.

Still, he said, “it is urgent for the State of Israel to decide what it wants…Building the strategy is important.”

Rothman plans to travel to the U.S. at the end of the month to meet with legal experts, whom he declined to name for security reasons, to help him come up with new ideas.

“This is a global issue because Oct. 7 sparked international support for terror,” he said. “The struggle to develop new legal tools or to adjust existing tools [to fight terror] should be universal.”