"Revenge trials and dozens of gallows": The mines on the way to judging the Nukhba

The bill for the trial of the terrorists who committed the October 7 massacre has already been approved in the Knesset plenum, but the road to its implementation is still long. Nearly three years have passed since the "Black Saturday," and Hamas terrorists have not yet been brought to trial, the court has not yet been established, and fundamental issues such as representation and the method of filing indictments have not yet been decided. According to the estimates of those leading the program, the sentences are expected to be handed down only seven to ten years after the start of the hearings.

The law promoted by Knesset members Simcha Rothman and Yulia Malinovsky is intended to regulate the unprecedented legal situation, in which it was decided to establish a military court in Jerusalem. The IDF Chief of Staff will select the judges upon the recommendation of the President of the Military Court of Appeals and with the approval of President Isaac Herzog, and the prosecutors upon the recommendation of the Military Advocate General. Some of the hearings will be broadcast live.

A steering committee established to lead the implementation of the law, with the participation of the Ministries of Justice, Foreign Affairs, and Finance, the Ministry of National Security, the National Public Diplomacy Directorate, and the IDF, will meet once a quarter. The committee is responsible for overseeing the readiness of government ministries and allocating the necessary resources. One meeting has already taken place.

Sources in the committee estimate that between 10,000 and 12,000 victims of the crimes will testify in court. "The goal is to expose the relevant victims to the materials and indictments before the trials begin," they detailed. Among other things, it became known to Walla that long hours of conversations were held with released hostages, and their testimonies were collected.

At least 400 defendants are expected to stand trial, and the number may even double along the way. Investigations are still ongoing into detainees caught later in the war. These did not necessarily invade on October 7 but are, for example, suspected of harming hostages.

In terms of timelines, the estimate is that at least another year and a half will pass until the start of the first trial. The administration was established in February, and the budget approved by the government still needs to pass through the Finance Committee. Due to the Knesset going on recess, Constitution Committee Chairman Simcha Rothman updated that the approval will be transferred to the consent committee, which will be composed of the coalition chairman and the opposition coordinator.

Sources predicted that the final number would be between 750 and 800 defendants.

The court will be established in the Atarot area of Jerusalem using light structures. Inside, separate complexes will be built for the judges, the prosecution, and the victims of the crimes. The place will contain nine halls where hearings will take place simultaneously to expedite the proceedings. Ten panels of judges will hear cases in the first instance, and five will constitute an appellate instance, to which death penalty sentences will be automatically appealed. In total, more than 60 judges will be appointed.

The panels will be divided by major events and areas where the massacre was carried out, such as the Nova festival or Kibbutz Be'eri. Although the court will be military, Walla learned that it appears the judges will not wear IDF uniforms, a sensitive issue that was raised in discussions. The reason: fear of harming the ability to present the Israeli narrative to global public opinion.

With careless conduct, legal experts warn, the law could become a minefield for Israel. "I see enormous importance in these trials — also in terms of doing justice, like in the Eichmann trial. They are historic," Prof. Yoav Sapir of the Tel Aviv University Faculty of Law, former National Public Defender, told Walla. "The big challenge is how to ensure that the trials are trials. To maintain a fair process and its legitimacy, which are important, both internally and internationally. Over the years, Israel has prided itself on an independent and functioning judicial system that protects the rights of defendants and suspects. Precisely because of the historical importance and attention, it is necessary to keep them as such."

Shortly after the Black Saturday, Prof. Sapir identified the significance of the Nukhba trials. In January 2024, he held a conference that tried to wonder about the best way to hold them — and the main obstacles they would pose. Raz Nizri, former Deputy Attorney General, participated in that conference and revealed that he had received offers from politicians to help amend the legislation. The request was refused. Nizri believed that one should "take out of the equation the possibility of new legislation."

"The world is not ideal, it may be that we should have legislated in advance with the Counter-Terrorism Law. I didn't want to join because I said that the cost would outweigh the benefit," he explained. "Creating legislation retroactively is not right. We know that judges in uniform are independent, but try to explain this picture to the world. We will lose everything we want to achieve in such a situation. The death penalty has a populist dimension. It does not deter. What is here is the principle of retribution, and this is a value-based question, not a legal one."

Recently, Prof. Sapir published a call for papers for a legal journal issue that will deal with the dilemmas the law raises, together with Prof. Leora Bilsky, head of the Minerva Center for Human Rights. Another conference will be held in December. "It involves many cases of murder and atrocities, dozens if not hundreds of defendants, with significant challenges in terms of evidence. It was a war zone and some of it was destroyed. It is important not to turn this into a circus," he clarifies.

"The law is important, but mistakes were made, for example, the decision that it would be in a military court. Many in the system opposed this. The position of the State Attorney's Office and the Attorney General was that there would be regular courts, like in the Eichmann case. In the end, I think that under the pressure of politicians, it moved to military ones, which by their very nature have less legitimacy. The army is fighting Hamas and is now judging it. Probably many judges and prosecutors will be appointed in an expedited process without the independence of those currently serving," he added.

Indeed, the recruitment of judges and prosecutors has not yet taken place. The judges will be required to commit to seven years in the first instance and ten in the appellate instance. The sensitivity of the task and the difficulties raised by Prof. Sapir may deter potential candidates, and on the other hand — the high profile of the proceedings can be a point of attraction. On the other hand, Knesset member Rothman said in a conversation with Walla: "There is no shortage of manpower for the event." According to him, "A great many people want to be involved. I know this from conversations with people from the Military Advocate General's Office and from people who approach me and want to apply, including judges."

One of the clauses that raises questions concerns the representation of the suspects. The law states that the court will appoint a defense attorney for those who are not represented, but they will not be part of the Public Defender's Office, and not from the Gaza Strip. If not from the Public Defender's Office, it is unclear who will defend the defendants, as required in a judicial system in an advanced country. At this stage, it is not yet known about lawyers who have taken on the task, and it is unclear to those leading the implementation of the law how this will be solved.

"It is mandatory to regulate representation for the defendants," emphasizes Sapir. "Offsetting lawyers' fees from payments to the Palestinian Authority is a mistake that unites it with Hamas. The state should bear the costs for those who have no representation. After all, we will spend huge sums on these trials — on training, investigations, building courtrooms. Capital is justified because of the importance of the trials. Just as representation is funded elsewhere for crimes we despise, so it is the state's responsibility here too. Without representation, there is not even a semblance of justice."

Another clause defines that "the military court may deviate from the rules of procedure and the rules of evidence, if it is convinced that this is necessary for the clarification of the truth and the doing of justice, and this does not cause real harm to the fairness of the process." The goal is to allow for prosecution within the chaos of the fighting that disrupted the proper legal process, but it constitutes a dangerous opening.

"They gave a kind of 'carte blanche' to the court. This is a mistake. The law explicitly states that it is possible to deviate from instructions including on the subject of investigation material, what does that mean? How will they implement this? That the materials will not be passed to the defendants and they will not have the possibility to defend themselves? Surely there will be things that it is not in the state's interest to pass on, but there are tools for dealing with this, such as confidentiality certificates. Giving permission in advance hints that there is an intention to deviate from the principles of a fair process," warns Prof. Sapir.

Prof. Sapir points to another question — the way of building the indictments. "One big one, dozens of separate ones, a limited number. The prosecution will have to decide. My position is that the right way is to divide the horror into main arenas: Be'eri, Kfar Aza, Nova, and so on. This way it will be possible to tell the story of that place and also overcome problems of attributing responsibility to the defendants."

The former National Public Defender continued: "It will not be necessary to prove whose bullet hit whom. If it is proven that a group of terrorists entered a settlement with a common goal to kill and kidnap as many people as possible — they are all co-perpetrators. One must be careful of a maximalist perception and try to prosecute for crimes that are difficult to prove. There is enough evidence on the main perpetrators."

The hot potato is the death penalties that the judges will be able to impose on the defendants. "In the discussions in the Knesset, a thought arose to charge with offenses that carry the death penalty. There is the death penalty law for terrorists promoted by Ben Gvir, but it cannot apply retroactively. What did they do? They applied a series of provisions from the Penal Code that authorize the military court to judge offenses that carry such a penalty, such as the law for the prevention of genocide and provisions in the treason chapter," explains Sapir. "The increased severity that leads to the death penalty in them is the act against your own community. Here it does not apply. It may be that they will try anyway."

"In terms of genocide: until today, this concept referred to the Holocaust for us, and I believe it is appropriate to preserve the uniqueness of the horrors of the Holocaust. I am also not sure that it is smart on the part of Israel, which is accused in The Hague of the crime of genocide, to support an expansive interpretation of the concept of genocide, just to allow the imposition of a death penalty," he expanded.

According to him, "asking for the death penalty will be a mistake. It is already outside the lexicon of international legitimacy. This will be exactly turning the trials into revenge trials. Suddenly putting up dozens of gallows here, with the festival involved in that, is a thing that is hard to imagine. I have no doubt that there are those who want this to happen, in the Knesset there is a majority for this. I hope they will come to their senses and not do this."

Sapir warns of the significance of the death penalty for Israel's global status. "Reinstating the death penalty where it was abolished is considered a deviation from international law. In terms of foreign relations, all European countries have abolished it except for Belarus," he detailed. "There are important agreements with the European Union, with economic and security importance, that are based and depend on the existence of shared values. Opposition to the death penalty is one of them and there are already condemnations of the law by the Union. It is immoral and will certainly harm the State of Israel. It will turn the trials, which have the potential to raise the horrors of October 7 to global consciousness, into ones that will be perceived as political, vengeful, and not as trials of justice."

Rothman acknowledges the complexity involved in the decision. "That is why we asked that there be representatives of the Ministry of Foreign Affairs in the steering committee and that we act together with the Ministry of Public Diplomacy. The law has not changed from the military court that operated for many years in Lod. You cannot decide that so-and-so did — a bullet in the head," he clarified. "Whoever wants to smear the State of Israel does so also to the regular criminal justice system, to the Supreme Court, and to the legal advice, and it does not bother him. The question is whether we will know how to work correctly and make it accessible in the right way."

"When it comes to war crimes and crimes against humanity, it is definitely legitimate and possible also in international law," he emphasized. "A society that has no red lines pays very heavy prices. The picture that is etched in the consciousness is that people entered, massacred, and murdered and are going out without punishment. Doing justice is a very important thing. If there are people for whom this is not legitimate, I have a value-based argument with them. The ABC of morality is that the State of Israel will act for punishment, just as it dealt with the Nazis. Like in the Nuremberg trials."

At this stage, even if the threat of the death penalty is realized, it has not yet been defined how it will be carried out. "I am not interested in whether by injection or by rope, I am interested in them not breathing this world anymore," said Rothman. "The question itself is immoral. When talking about people who committed the most terrible crimes, to say 'I am uncomfortable,' I will allow them to live and be released in a hostage deal is an anti-moral statement. What would I think in the opposite case? If we had committed genocide? I do not think we killed innocents, surely that was not the goal. There are clear definitions of genocide."