22 No. 72 JUSTICE experience of Israeli military judges must be noted. They have tried terrorists for security-related crimes before, and they also have the advantage of speed as they conduct proceedings without “clogging” the already overburdened Israeli court system. Specifically, the intent is to revive what is known as the Lod Military Court. This court was fundamentally intended to try terrorists who harmed Israelis on Israeli soil, and it was oriented toward security-related offenses. In the past, this court delivered sentences against terrorists who attacked Israel – for example, against Kozo Okamoto after the 1972 massacre at Lod Airport and against the terrorists who were responsible for the 1978 Coastal Road terror attack. The Challenge Concerning the Legal Procedure and the Rules of Evidence Before proceeding to examine the substantive law under which the defendants will stand trial, we will consider the procedural and evidentiary aspects, which carry farreaching importance in this context. The point of departure regarding evidence is that the real-time investigation was never intended to exhaustively collect evidence in anticipation of criminal proceedings, but rather to obtain information that would assist the military’s efforts. The juridical challenge of admitting confessions as evidence will be complex, given that the initial interrogation of the terrorists was conducted by Israel Security Agency interrogators who used measures intended to thwart further harm, and only later were “ordinary” criminal interrogations conducted by the police. This can be expected to result in threshold challenges as to the admissibility and weight of the evidence. The “chain of evidence” is liable to be challenged as faulty with respect to exhibits such as weapons. There will be claims of inadmissibility regarding the videos captured from the cameras that the terrorists carried. There will also be claims of “investigative failures” such as lack of lineups and lack of crime scene documentation. We note that according to recent reports, the police themselves announced that despite many efforts and the allocation of staff to deal with the evidentiary issue, they have not achieved any significant breakthrough in obtaining evidence regarding those involved.5 A significant challenge will be the handling of cases involving charges of severe sexual offenses, particularly since samples were not collected from the victims in real time. Additionally, those interrogated were often not “advised” about suspicions of sexual crimes during their initial interrogations but only later when the authorities began to understand the nature of the crimes that had been committed. With regard to legal procedure, the proceedings will create significant challenges. Aside from the necessity of conducting a huge number of trials concurrently, with a very large number of prosecution witnesses, there is the absence of any vision covering such an unusual task in the accepted scheme of legal procedure. It should be assumed that most of the defendants will plead not guilty, necessitating the conduct of evidentiary proceedings for thousands of terrorists accused of homicide and other serious offenses. These trials could potentially drag on for years and consume enormous resources. In order to deal with those complications, appropriate amendments could be added into the legislation for evidentiary rules and for legal procedure. Such amendments would need to display balance: they should enable proceedings to be conducted in a timely fashion, while not reaching any extremes that would deprive the criminal proceedings of their substantive validity. There are other solutions for the possible evidentiary difficulties. One solution comes from substantive law – the principle of co-perpetration.6 Clause 29(b) in the Penal Law of 5737/1977 defines a “coperpetrator” as follows: “Those participating in the perpetration of an offense by performing deeds for the perpetration are co-perpetrators; and whether all the deeds were performed jointly, or whether some were performed by one perpetrator and others by the other, is immaterial.” The question of identifying the co-perpetrators who performed “deeds for the perpetration” has been treated extensively by the courts. Regarding coperpetration, the details of the offense need not be planned jointly in advance and the actual perpetration need not coincide exactly with the original intent of the co-perpetrators … Indeed, anyone choosing to participate as a coperpetrator 5. Liran Tamari, “Police document: difficulty in producing evidence of knives and bullets to prosecute Hamas terrorists,” YNET, Dec. 10, 2023, available at https:// www.ynet.co.il/news/article/sjt4gx7ia (Hebrew). 6. See, for example, the suggestion by Prof. Kenneth Mann: https://www.globes.co.il/news/article.aspx?did=1001462570 (Hebrew).
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