21 Fall 2024 In such a case, the possible mass exoneration of terrorists with blood on their hands – on the grounds of “reasonable doubt” resting solely on the traditional courtroom rules – could deal a critical blow to the social contract from which the law derives its power and authority. This article presents the legal dilemmas and possible solutions in the above contexts – on the assumption that mass trials will be necessary if there is no “deal” returning most of the terrorists in exchange for Israeli hostages and prisoners held in Gaza. Detention of the Terrorists from the Massacre – the Incarceration of Unlawful Combatants Law The terrorists who were captured on October 7 and later, mostly during the ground operation in the Gaza Strip, are currently being held by Israel under the Incarceration of Unlawful Combatants Law of 5762/2002. These terrorists are not categorized as “prisoners of war,” since under international law they do not belong to the “regular armed forces” of a state and are considered instead as belonging to a “terrorist organization.” The 2002 law covering the incarceration of unlawful combatants – hereafter, “the Incarceration Law” – was intended in practice to legally provide for administrative detention of all terrorist operatives, stipulating that a person who is a member of a force perpetrating hostile acts against the State of Israel or who has participated in hostile acts of such a force, either directly or indirectly, shall be deemed to be a person whose release would harm State security as long as the hostile acts of such force against the State of Israel have not yet ceased, unless proved otherwise.3 The Incarceration Law enables the Hamas terrorists and the perpetrators of the massacre to be held in detention – under specific judicial supervision – until the end of fighting. Recently the Knesset’s Constitution, Law and Justice Committee gave its approval for both further extending an Incarceration Law amendment intended to prevent the terrorists from meeting with attorneys, and for further extending their detention itself. The terrorists’ lengthy detention is thus provided for by law, and the arrangement has passed the scrutiny of the High Court of Justice.4 Thus, the question of detaining the terrorists until their future is decided has an answer that will serve even for an extended period of time. The more serious question is what can be done afterward to ascertain their degree of responsibility and deliver justice against those found guilty. The Appropriate Tribunal for the Terrorists' Prosecution The first question is deciding which tribunal is appropriate for trying the terrorists. The ramifications of the answer will determine many legal and practical matters regarding the nature of the eventual legal proceedings. Initially, the establishment of a designated international tribunal was considered, one that would also consist of judges from other countries and allow for a certain internationalization of the process (as was done in the Nuremberg Trials and the Tokyo Trials). The underlying rationale was based on the importance of preserving international legitimacy for the legal proceedings and prevent any allegations of a “show trial” among international and diplomatic channels. That idea appears to have fallen away some months after the outbreak of war. One reason was the need, especially after the assault on Israel’s sovereignty in the severe attack of October 7, to present Israel as exercising its sovereignty at the judicial level. Another reason is the suspicion that geopolitical interests would seep into the legal proceedings through judges representing foreign countries. As a result of Israel’s insertion into the docket of the International Court of Justice, and the subsequent wave of vicious criticism regarding Israel’s wartime actions, the international option has lost its feasibility. Two practical options remain for holding trials in Israel: employing either the existing civil courts; or to employ the military courts under the Defense (Emergency) Regulations of 1945. The first option would mean criminal trials before the district courts of Israel, which would not require any legislative amendment. The advantage lies in using an existing mechanism rather than inventing a new normative institutional framework, which would also require generating public and international recognition of its legitimacy. In considering the military courts, which operate under the Defense (Emergency) Regulations, the special 3. Incarceration of Unlawful Combatants Law, 5762/2002, §7 (2002). 4. https://supremedecisions.court.gov.il/Home/Download?p ath=HebrewVerdicts\06/590/066/n04&fileName=06066590. n04&type=4 (Hebrew).
RkJQdWJsaXNoZXIy MjgzNzA=