Hamas attack, towards trials: hypothesis of military tribunals and death penalty

The problem of the burden of proof holds back judicial proceedings. Difficult to determine individual responsibilities, Israeli authorities evaluate options

Difficulties in discharging the burden of proof against individual Hamas militants suspected of taking part in the massacre of more than 1,200 people in Israel are hampering the work of the Israeli Ministry of Justice towards the opening of trials. Officials from the same ministry and the office of the Attorney General, Gali Baharav-Miara, have been working on the charges since immediately after the massacre, but the sheer number and scale of the crimes makes it difficult to gather sufficiently specific and solid evidence for any single prosecution.

In some cases, Haaretz highlights, there is no way to establish which suspect committed a particular crime, while in others the nature of the evidence makes it difficult to obtain a severe conviction of the accused. According to some sources, many ministers of the Netanyahu government are pushing for those responsible for the massacres carried out on October 7 in the kibbutzim near the border with Gaza to be sentenced to death.

One of the proposals put forward to the Ministry of Justice is to divide the suspects based on the kibbutz, village or city in which they committed their acts and prosecute each group separately. Another is that they be tried under the anti-genocide law.

Israel’s Genocide Prevention Law, enacted in 1950, could provide an easier evidentiary basis for convictions and provides for the death penalty, which was actually carried out only once in 1962 in Israel against Nazi war criminal Adolf Eichmann . The law requires that every death penalty case be heard by a panel of three judges including one from the Supreme Court, which would create a serious burden on the justice system.

Alternatively, the government is evaluating the possibility of approving an ad hoc law that would allow terrorism suspects to be tried in military rather than civilian courts, as US authorities did with al-Qaeda terrorists captured in Afghanistan. Trial in a military court would facilitate possible death sentences.

Yet another option is to enact special legislation for the October 7 massacres, allowing anyone involved to be prosecuted without proving their specific acts, but all officials interviewed rejected this proposal. The final decision on the prosecution’s approach, Haaretz emphasizes, will be made only after the completion of the investigation and the collection of all evidence, which is expected to take a long time.