The return of the final, living hostages to Israel last week has reopened discussion of putting the Palestinian perpetrators of the Oct. 7, 2023, atrocities in Israel on trial.

Israeli Justice Minister Yariv Levin threw his support behind legislation to allow for the formation of a special tribunal to prosecute Hamas terrorists who are part of the Nukhba, the terrorist group’s special forces unit, on charges of genocide, which carries the death penalty.

The bill is meant to “ensure that the legal process will be run efficiently and to ensure that justice will be done and seen,” Levin said in a joint statement with the bill’s sponsors, Knesset Law, Constitution and Justice Committee Chairman Simcha Rothman of the Religious Zionist Party and Yisrael Beytenu lawmaker Yuli Malinovsky. The group plans to bring the legislation to a first vote as soon as possible and usher it through the process “at the greatest speed, with a shared aim to bring the Nukhba terrorists to justice soon.”

Levin, Rothman and Malinovsky said that the office of the Israeli state attorney, the country’s chief prosecutor, has drafted indictments against Nukhba terrorists.

They noted that during the two years since the Hamas attacks on southern Israel, the State Attorney’s Office, police and Shin Bet have interrogated the Nukhba terrorists and collected evidence “of an unprecedented scope,” including thousands of hours of video of the atrocities and of testimony. 

During that time, the Law, Constitution and Justice Committee held a series of meetings to examine possible ways to put the Nukhba terrorists on trial and ensure they are prosecuted to the full extent of the law.

“We met with the Justice Ministry once every few months,” Rothman told Jewish Insider. “Levin finally supports [the bill]. Every obstacle was standing in our way, and [Levin] didn’t make an effort to remove them. Now, there’s nothing preventing it from moving forward.”

The move toward putting Oct. 7 perpetrators on trial comes soon after the return of the living hostages, as well as weeks after a heated debate in the Knesset over instituting the death penalty for terrorists. The legislation’s explanatory portion says it is meant to “nip terrorism in the bud and create a heavy deterrent.” 

The death penalty has only been carried out once in Israel’s history — following the conviction of senior Nazi official Adolf Eichmann for crimes against the Jewish people and crimes against humanity.

The bill, which applies to terrorists broadly, not only those who participated in the Oct. 7 attacks, was proposed by members of National Security Minister Itamar Ben-Gvir’s Otzma Yehudit Party and brought before the Knesset National Security Committee, chaired by Tzvika Foghel, also of Otzma. The Prime Minister’s Office asked Ben-Gvir to postpone the vote. 

Gal Hirsch, the coordinator for the hostages, said in the committee meeting that Ben-Gvir’s effort was potentially harmful to the ongoing discussions to secure the release of the remaining hostages. Representatives from hostage families have also pleaded with the lawmakers to stop the proceedings, concerned that the moves could endanger their loved ones.

On Monday, Ben-Gvir made an ultimatum to Israeli Prime Minister Benjamin Netanyahu that either the death penalty bill passes a first Knesset vote in the next three weeks, or his party will no longer vote with the coalition. 

“When terrorists remain alive, the terrorists outside are motivated to carry out kidnappings in order to free their Nazi brothers in future deals,” Ben-Gvir said. “If they murder a Jew, they do not stay alive.”

Rothman argued that his bill is significantly different from Ben-Gvir’s, and pointed out that he held a committee meeting the same week as the one that courted controversy, and neither Netanyahu nor Hirsch asked him to hold off.

“It’s a question of whether you want real results. [Otzma lawmakers] don’t understand what they’re dealing with. The law they want to pass [is so broad], I think it would end up giving a Jewish Israeli the death penalty first,” he remarked.

While Rothman said that having all of the living hostages home will help the Oct. 7 trials to move forward, when he asked senior defense figures over the last two years whether there was a risk to the hostages’ lives from his actions, “they said no. They said when there’s a conviction or maybe even an indictment, possibly, but just building the framework is not a risk.”

As such, Rothman said that though it may seem like a long time has passed, “the time hasn’t been a waste. A lot of material was collected and we oversaw the legislative and political decisions that needed to be made.”

Rothman and Malinovsky’s bill would establish a special tribunal for those who participated in the Oct. 7 attacks, with the proceedings made public. The legislation sets different rules for presenting evidence to protect the privacy of victims and their families, and to streamline the process of prosecuting large numbers of defendants. It also allows for non-Israeli judges to be appointed. In addition, it would establish a committee of representatives of Israel’s justice minister, defense minister and foreign minister to determine government policy as to whether to prosecute the Nukhba terrorists on genocide charges, which carry the death penalty, taking national security into consideration.

In a Knesset Law, Constitution and Justice Committee meeting on Wednesday, the first since Levin publicly supported the bill, Malinovsky said that she and Rothman “understand that it was difficult to gather evidence … and I know that law enforcement and the State Attorney’s Office overturned every stone to find evidence. [Regular] criminal justice proceedings do not have a response for the events of Oct. 7, therefore MK Rothman and I wrote this bill to regulate the jailing and prosecution of the terrorists who participated in the Oct. 7 massacre.” 

Malinovsky said that there is difficulty tying specific terrorists to specific murders, and genocide is a collective crime, by which they can be charged as a group. In cases in which there is no evidence tying a terrorist to genocide, they can be tried in a military court as illegal fighters who committed acts of terror against Israel, a crime that carries a life sentence. 

Much of the bill is focused on clear criteria for genocide charges.

“At first, the Justice Ministry said that genocide charges won’t work,” Rothman recalled earlier this week, “but today, I think they understand that they need to go there.”

The special tribunal is meant to prevent the Oct. 7 trials from getting caught up in the Israeli justice system’s significant backlog.

“It’s a lot of heavy cases that will block up the whole justice system” if the trials are in regular courts, Rothman explained. 

In addition, he said, “I don’t want a situation where a judge is with the Nukhba in the morning and in the afternoon is dealing with an Israel who stole a car. We could end up lowering the standards of defendants’ rights in all of Israel. When we authorized preventing meetings [of terrorists] with lawyers, [judges] used it for all kinds of other cases, just because they can. We’re not going to allow that.”

Rothman said that the question of appointing foreign judges to the tribunal remains open, because it may be too complex. However, he said, “bringing a major jurist from the U.S. or somewhere else can give the trials an international imprimatur.”

Malinovsky said at the committee meeting that the Oct. 7 attacks “are like nothing else in the world, and I invite anyone who has knowledge to speak. We need creative solutions, outside of the box, and therefore we need a change of attitude, especially in the Justice Ministry.”