20 No. 72 JUSTICE ne of the most complex issues facing Israel’s legal authorities today, and arguably the greatest challenge ever encountered by the Israeli legal system, is the prosecution and enforcement of justice regarding the Hamas terrorists captured on October 7, 2023, and during the War of Iron Swords. The challenge arises from a series of questions touching on every stage of the possible legal procedures. The questions requiring clarification concern the ability to find a normative framework for legal hearings suitable to the nature of the grim events without turning them into “more cases,” and the investigatory and practical abilities to find evidence connecting each of the many terrorists detained in Israel to the crimes that were committed. The following questions arise regarding the prosecution itself: in which forum will the charges be brought? Will they be brought before “ordinary” Israeli criminal courts, or before military courts? Should a new tribunal be established to deal with the weightiest crime that has ever beset the State of Israel? Lower-level questions arise immediately regarding how the trials may be conducted. They are mainly questions of legal procedure and of rules of evidence. Regarding legal procedure: how can proper, speedy, and well-focused trials be ensured that will clarify the criminal responsibility of thousands of terrorists? Regarding the rules of evidence: how can the challenge that arises from the lack of a traditional investigation of the October 7 events by an investigatory body be handled? The actions undertaken were, of course, not intended from the outset to be the collection of legal evidence but rather to save lives and to overcome threats. Can materials gathered during such actions be admissible evidence in a criminal trial? Upon answering those questions, practical issues arise: How are the courts to handle thousands of criminal cases involving the most serious crimes in the code concurrently, when each case could extend to thousands of hours of hearings and sessions? How can such criminal proceedings be handled if respecting each terrorist’s rights as a defendant means that each case could take years? Another practical question is the issue of who would agree to represent the Hamas terrorists in court, given the announcement from the National Public Defender’s Office1 that it would not agree to represent the Hamas terrorists in court (and given a pending bill that would prevent the Public Defense from representing them).2 It is difficult to believe that private defense attorneys will be found in Israel who would agree to undertake the representation of those terrorists. Will it be necessary to “import” foreign defense attorneys, as was done when Adv. Robert Servatius represented Adolf Eichmann? Alongside the aforementioned challenges, it appears that the greatest challenge facing the legal system is how to detach itself from customary patterns of thinking that developed under entirely different circumstances. In order to confront a singular situation that has no precedent in the history of the State of Israel, usual patterns of thinking must be replaced by a response to a present-day reality, without adherence to familiar conventions. Any solution must take into account the collective nature of the event. The terrorist murderers did not set out to kill a specific Israeli person but mounted an indiscriminate murder spree against Israel as such. Classic criminal law, based on individualistic principles, is not necessarily the appropriate tool for this case of collective nationalist slaughter. It is important to remember the foundation upon which all branches of the law are based – the obligation to increase justice and reduce injustice. It cannot be that adherence to legal rules, without adjustment to the unimaginable reality that has been created, will be the very thing that increases injustice and reduces justice. Prosecuting the October 7 Terrorists: A Challenge for the Israeli Legal System Ran Cohen Rochverger 1. Lital Dobrovitsky, “The Public Defender’s Office refuses to represent the October 7 terrorists: ’Our blood is boiling’,“ YNET, Nov. 8, 2023, available at https://www. ynet.co.il/news/article/hjedthfma (Hebrew). 2. https://main.knesset.gov.il/news/pressreleases/pages/ press04.03.24.aspx (Hebrew). O
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