How Israel is planning to bring Hamas terrorists to justice – and why it’s so alarming

A burnt down house in Kibbutz Be’eri following the 7 October 2023 attack

Dahlia Scheindlin writes in Haaretz on 29 May 2025:

How do you bring Hamas’ depraved Nukhba force fighters – the so-called ‘elite’ unit that slaughtered whole families on October 7 – to justice?

One possible answer appeared this week, when the Knesset passed the preliminary reading of the “Bill on the imprisonment and trial of participants in the events of October 7.” If passed, the legislation would answer some of the most troubling questions about how Israel plans to put the perpetrators on trial – but through some of the worst possible solutions.

The law would establish a special tribunal, rather than prosecuting the suspects in regular court through existing criminal law; it lowers the standards of evidence and transparency, brings political figures from the government directly into the process, and reduces judicial oversight to allow practically unlimited detention. If the suspects are convicted, they can be sentenced to death – a sentence famously used in Israel’s history once, in 1962, against Adolf Eichmann.

The bill might never become law. Reportedly, Prime Minister Benjamin Netanyahu and Israel’s southern district attorney Erez Padan oppose it. The legal advisors to the Justice Ministry and Israel’s attorney general, Gali Baharav-Miara, oppose it too; they argue that regular criminal proceedings are adequate, and warn of sensitive international ramifications, without specifically mentioning the broad repudiation of the death penalty in most democratic countries.

But this government excels at doing the unthinkable. As such, the proposals in this bill raise a long list of legal and political questions – and dangers – that should alarm all Israelis.

First, it’s worth noting that there can legitimate reasons for establishing a special court. According to Jessica Montell, director of Hamoked, an Israeli human rights organisation, Israel is holding as many as 1,800 people as “illegal combatants,” captured either on October 7 or during the war, nearly all of them from Gaza. No one knows how many of them will be put on trial specifically for participation in the massacres that day, or held as bargaining chips for future hostage release deals, which is a violation of international law. But even hundreds would create a major burden on Israel’s infamously overloaded, backlogged system, dragging down the procedures of justice for ordinary citizens.

However, these are not the true considerations of the authors of the bill: Simcha Rothman of the far-right Religious Zionism party, head of the Knesset’s Constitution, Law and Justice Committee and a key proponent of the 2023 attempted judicial coup, and Yulia Malinovsky of Yisrael Beiteinu, Avigdor Lieberman’s party. The latter has long supported the slogan “death to terrorists” and associated legislation over the years, which never passed – so far.

In its preliminary reading on Wednesday, the bill passed with 39 votes from the coalition and opposition, and two opposed. The opposition National Unity party, led by Benny Gantz, supported the bill.

The new law draws on existing legislation regarding “illegal combatants” from 2002, which allows the state to hold suspects in prolonged detention. The bill breezily does away with a range of normal standards of evidence, and summarily strips provisions for judicial review over detention of these detainees every six months, as per the original 2002 law. The spirit of the new law is to hold the suspects indefinitely – another notch in the slow erosion of due process in Israel.

The law brazenly permits Israel’s justice minister and foreign minister to select foreign justices to sit on the 15-member court, essentially making sure politicians hand select like-minded individuals. It then provides for a “steering committee” – a team of several political figures appointed by ministers, to advise the prosecution; rather like an executive invasion of the judicial process.

But the most important element is that under the law, illegal combatants prosecuted for participation in the events of October 7, will be tried for genocidal actions intended to “destroy the Jewish people and the State of Israel, which is the nation-state of the Jewish people.” The bill specifically refers to Israel’s 1950 law on the “Prevention and Punishment of the Crime of Genocide.”

The 1950 law’s definitions of genocide were modeled on the UN convention under the same name, first enacted in 1948 in response to the crimes of the Nazi regime. Israel’s version mirrors the language of the convention, with a significant difference: Article 2 of Israel’s 1950 law states: “The sentence for those convicted of genocide: Death.” Or as Maariv’s reporter, Avraham Bloch, put it: “The Rothman and Malinowsky law…means that all terrorists who will be tried for participation in the massacre will meet the noose.”

In November 2023, the families of hostages begged the Knesset’s National Security Committee – then debating the death penalty – to stop the discussions. They were frantic that even legislative debates over the death penalty would risk the lives of their loved ones, if Hamas retaliated by killing hostages (hostages released in the two major deals have since told of severe violence and deterioration of their conditions in direct response to Israel’s actions during the war). Two of the prominent voices at the mid-November hearing were Hen Avigdori, whose wife and daughter were held hostage, and Gil Dickman, cousin of the hostage Carmel Gat.

Avigdori’s own family members were released. Carmel Gat was executed by Hamas alongside five other hostages in Gaza’s tunnels in September 2024. Israel’s security establishment, which had reportedly opposed the legislation in the past, no longer opposes it – according to the lawmakers (as reflected in the Knesset transcripts and leaked committee discussions from earlier this week). Some of the hearings are classified, but it sure looks as if the security establishment and lawmakers are no longer concerned about the impact of such a law on the 58 hostages still in captivity.

And Israel’s politicians definitely don’t care about collapsing standards of justice, the politicization of the legal system, or resurrecting the barbaric practice of the death penalty – which won’t stop with the Nukhba prisoners.

This article is reproduced in its entirety