Taking War to Court

A surprise attack launched by Hamas on October 7 ignited yet another period of violence in Israel and Gaza. During the attack, the Hamas attackers targeted soldiers and civilians alike, killing a total of 1,200 Israelis. In response, Israel launched an unprecedented invasion of the Gaza Strip, which resulted in the deaths of over 25,000 Gazans, most of them civilians. While the war does not seem to come close to an end, Israel has meanwhile encountered a different kind of problem; following the October 7 attack, Israel captured hundreds of Hamas fighters – members of the elite Hamas Nukhba unit who had perpetrated the attack. Immediately following the start of the war, voices in Israel urged the government to launch criminal prosecutions of these attackers, with some arguing that Israel should impose the death penalty on the perpetrators.

The current contribution attempts to explain the different legal paths that Israeli law creates for the prosecution of the Hamas fighters. Specifically, the different military and civilian jurisdictions found in Israeli law will be discussed, and their applicability to the current situation will be examined. In addition, the contribution will also discuss the possibility of imposing capital punishment on the perpetrators. It will be argued that while Israeli law allows for the imposition of the death penalty, it should not be imposed on the Hamas militants.

The October 7 Attack – Why Prosecute

Immediately after the October 7 attack had taken place, voices in Israel called for the criminal prosecution and subsequent execution of the perpetrators, and the Israeli Attorney General announced that the state was examining the various legal actions that could be taken against the Hamas fighters. Notably, Israeli law allows the state to indefinitely detain the Hamas militants even without launching a criminal prosecution.

Israel’s Unlawful Combatants Law allows for the government to hold members of illegal militant groups, such as Hamas, in indefinite administrative detention. Considering the administrative nature of the proceeding, the burden of proof on the government is lower than that of a criminal proceeding, and the government is also allowed to present administrative evidence, even when such evidence would not be admissible in a criminal trial. The law authorizes the state to hold the detainees so long as hostilities between Israel and the respective militant group continue. The detention is continuously monitored by the courts, and if the detainee is found not to pose a security threat to the State of Israel, then the court may order their release. Hence, this type of proceeding is not concerned with the past actions of the detainees but is instead concentrated on their prospected risk to national security. Accordingly, if a detainee’s risk for national security is deemed to have ceased, then they should be released irrespective of their past actions.

The procedure of administrative detention thus allows Israel to hold the Hamas militants behind bars even without launching a criminal prosecution. However, it would seem that Israel does not only plan on detaining the perpetrators of October 7, but it instead wants to punish them for their past actions and bring them to justice. This sense of justice can only be achieved through a fair criminal trial.

The Hamas Trials – Military vs. Civilian Court

Even if Israel decides to launch a criminal prosecution against the perpetrators of October 7, as seems the likely course of action, the Israeli government will still need to decide on the jurisdiction in which such prosecution will take place. Similarly to the US, Israeli law creates two different jurisdictions for the prosecution of terrorism and security offenses: special military tribunals and civilian jurisdiction.

The military tribunals have jurisdiction over any security-related offense committed in the areas occupied by Israel, as well as any offense committed by residents of the occupied areas in Israel. The civilian courts, on the other hand, have jurisdiction over any offense committed inside Israel’s sovereign territory (that is, excluding the West Bank and Gaza), as well as jurisdiction over crimes committed by Israelis in the occupied territories. Despite this presumably territorially-based distribution of jurisdictions, the decision whether an individual will be prosecuted before a military tribunal or in Israel’s civilian jurisdiction is made predominantly based on the question of nationality – Israeli nationals are usually prosecuted in the civilian jurisdiction, while Palestinians are prosecuted in the military tribunals.

Military tribunals typically grant fewer protections to criminal defendants than the civilian jurisdiction does. Thus, for example, the military jurisdiction would be more likely to admit a confession extracted when the suspect was under physical pressure. The services of Israel’s renowned Public Defender’s office are only granted to defendants in the civilian jurisdiction, while defendants in the military tribunal need to rely on private representation or third-party NGOs. These and other differences also result in unequal conviction rates in both jurisdictions: While the conviction rate in Israel’s civilian jurisdiction is below 90%, virtually all cases prosecuted in the military jurisdiction in the past year have resulted in a conviction.

It would thus be fitting for Israel to choose to prosecute the Hamas militants in a military tribunal – the military court is the usual forum where Israel prosecutes Palestinians for security-related offenses, and it would also be easier to prove the guilt of the Hamas militants in a military tribunal, compared with the civilian jurisdiction. Nonetheless, if Israel attempts to gain international legitimacy and pursue justice by launching the prosecutions, then a military tribunal with relaxed protections on defendants’ rights and a 100% conviction rate hardly seems the way to go. Instead, in pursuit of justice and legitimacy, Israel should choose a forum that guarantees standards of due process. Israel should hold the criminal prosecutions in its civilian jurisdiction.

Seeking the Death Penalty

In its entire history, Israel has executed only one person – Adolf Eichmann, a notorious Nazi general who personally took part in the extermination of Jews during the Holocaust. Some argue that the extreme circumstances of the October 7 attack were so extreme that they warrant the imposition of capital punishment. However, such a penalty might adversely affect Israel’s own interests.

While capital punishment has not been implemented by Israeli authorities for over sixty years, it still appears on the books in both its civilian and military jurisdictions. Article Two of Israel’s civilian Criminal Code creates several offenses punishable by death for conduct that harms the sovereignty of the state or otherwise undermines national security. Thus, for example, section 99 of the Criminal Code stipulates that “[i]f a person, with intent to assist an enemy at war against Israel, commits an act that is liable to do so, then he is liable to the death penalty or to life imprisonment.” The section then specifies that it is irrelevant whether Israel was indeed in a state of war at the time when the conduct took place. Other offenses in Article Two prohibit similar types of conduct, where some of them also impose capital punishment.  Additionally, capital punishment can be found as a possible penalty in other Israeli laws, such as the Law on the Prevention and Punishment of Genocide, which stipulates that a person guilty of Genocide should be punished by death.

The military tribunal enjoys an even greater discretion in its ability to impose capital punishment. Many of the criminal offenses governing the criminal proceedings in the military tribunals are stipulated in the Defense Regulations (Emergency) orders originally imposed during the British Mandate over Palestine in 1945. These regulations allow the military tribunal to impose the death penalty for crimes such as discharging a firearm, carrying a firearm without a license, and various other offenses. Accordingly, the prosecution of the Hamas militants in the military tribunal will allow Israel to seek the death penalty even without proving that every one of the militants is guilty of murder – merely the carrying of a firearm, or even the membership in a group of persons who illegally carry a firearm (section 58), is an offense punishable by death in the military jurisdiction.

Thus, both Israel’s civilian and military jurisdictions allow for the imposition of capital punishment. Nonetheless, the reintroduction of the death penalty may still raise some issues for Israel from an international law perspective. The legality of the reinstitution of capital punishment has no clear answer. International treaties such as the Second Protocol to the ICCPR and the American Convention on Human Rights, none of which Israel is a signatory of, prohibit the reintroduction of capital punishment. Additionally, Article VI of the ICCPR is argued by some to prohibit the reinstatement of capital punishment. Nonetheless, it is unclear whether customary international law prohibits the reintroduction of capital punishment. However, even if Israel is not precluded by its international obligations from reinstating the death penalty, the mass execution of hundreds of Palestinians is set to draw stark international criticism, as well as undermine the prospect of reconciliation with the Palestinian people. Thus, even from Israel’s own interests, seeking a less extreme form of punishment will both comply with trends in international law, as well as open the door for diplomacy and reconciliation.

Conclusion

The prosecution of the October 7 perpetrators will inevitably lead to extreme repercussions for Israel, both in the diplomatic and domestic scene. The current contribution set forth the legal framework that Israeli law offers for the prosecution of the Hamas militants and attempted to show the benefits and drawbacks found in these various legal alternatives.  It was argued that the best course of action for Israel would be the institution of criminal proceedings in Israel’s civilian jurisdiction. These proceedings will be expected to adhere to due process standards and ought not to result in the imposition of capital punishment. The prosecution of the Hamas militants must not appear as a Kangaroo Court, and the imposition of extreme penalties will only hinder the possibility of future reconciliation between Israel and Palestine.