24 No. 72 JUSTICE A fundamental element in that clause is “treason against the State” which on the surface does not appear to apply to residents of another “state,” but it has been contended10 that the law could apply to foreign citizens because the aim of the clause is to protect the integrity of the State’s sovereignty. That idea is also supported by the following remark by the Supreme Court: The fact that the prosecuting authorities have refrained from filing against certain enemies of Israel – who are not residents of the State in connection with the perpetration of this offense – does not necessarily indicate that a disloyalty to the State constitutes a part of the mens rea for the existence of the offense; and this is contrary to the contention of those appealing.11 The significant advantage of charging the defendants under this law is that the clause gives expression to the extreme severity of the massacre’s deeds. Additionally, it refers to the extreme effect of organizing to harm the State’s security, unlike a criminal offense merely against Jewish citizens. Consideration should be given to invoking the Nazis and Nazi Collaborators (Punishment) Law of 5710/1950, with amendments, and applying it to crimes committed at the massacre. The law’s retroactive application enables the court to depart from traditional rules of evidence12 and it allows the perpetrator’s mens a rea to remain unexplored.13 In those ways, the law diverges from a number of basic principles of criminal law on the understanding that for a horrific situation, the handling cannot remain within the normal everyday framework. We note that for many of the crimes committed, no real problem of retroactive legislation arises, because many of the offenses perpetrated – murder, sabotage, arson, rape, etc. – are already firmly covered by existing law. In this situation, the problem of legislation is less imposing. This law could provide a suitable framework emphasizing the national-level context surrounding the crimes committed by Hamas.14 This would provide a significant advantage in the ability to hold a public trial where the antisemitic background of the Gazan rioters would reverberate. Another possibility is to address the offenses according to the Crime of Genocide (Prevention and Punishment) Law of 5710/1950, which adopts the UN Convention on the Prevention and Punishment of Genocide. The law 10. Y. Berger & E. Gilran, “Sovereignty as a protected value in criminal law,” RESHUT HARABIM, Nov. 29, 2023 (Hebrew). 11. Al-Bay'a v. State of Israel, HCJ 5536/18, ¶ 31 (Isr. 2019), (Judge Elron’s verdict). 12. Note, in this connection, that recently a private member’s bill has been submitted for a “Hamas and Hamas Collaborators (Punishment) Law,” available at https:// main.knesset.gov.il/activity/legislation/laws/pages/ lawbill.aspx?t=lawsuggestionssearch&lawitem id=2210530 (Hebrew). 13. Ibid., ¶ 15. 14 Lon. L Fuller, THE MORALITY OF LAW (1964). 15. This law too stipulates that use may be made of the first part of the penal ordinance that deals with parties to an offense. 16. Especially where use of firearms is involved. stipulates the death penalty for those who commit crimes with genocidal intent in whole or in part. This law requires no additions or changes in order to be applied against the Hamas terrorists, and it may serve as a significant framework for bringing to light the collective-nationalist aspect of the October 7 events.15 If tried before the Lod Military Court, the Hamas terrorists could be charged with significant offenses under the Defense (Emergency) Regulations of 1945. Clause 58 of those regulations stipulates the death penalty for many actions that may be attributed to the rioters in the area bordering the Gaza Strip.16 It should be recognized that the Defense (Emergency) Regulations are considered, not without reason, as archaic legislation unsuited to the reality of present-day life. And it must also be assumed that although a trial before that military court carries practical advantages, it may lead to international criticism of the tribunal’s establishment and of its judicial character. Conclusion The question of prosecuting those involved in perpetrating the horrible massacre of October 7 is one of the most complex questions ever faced, not merely by Israel but by any Western democracy. Therefore, it would be wrong to separate the question of legal handling for the massacre’s participants from the need for rethinking with respect to the fundamentals of the legal system. It is no secret that the terrorist organizations have learned the laws of modern warfare well and, adaptable
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