Israel approves a law to punish those responsible for October 7th with the death penalty

The Israeli Parliament approved this Monday one of the most exceptional legal initiatives in its recent history: a special legal framework to try those responsible for the Hamas attacks of October 7, 2023, with the possibility of imposing the death penalty. The legislation, dubbed the law for the prosecution of participants in the events of the October 7 massacre, has achieved unusual political consensus between the government and the opposition. It has been driven by the Israeli Minister of Justice, Yariv Levin, and sponsored by MPs Simcha Rothman, a member of the government coalition, and Yulia Malinovsky, from the opposition. The law advanced this Monday to its second and third readings in the Israeli Parliament, and was finally approved with 93 votes in favor out of a total of 120. The legal text foresees the creation of a special military tribunal in Jerusalem to begin trying at least 300 attackers captured in Israel after the October 7 assault. For the last two and a half years, Israeli authorities have held these detainees in various penitentiary centers while they debated which legal framework would allow them to be prosecuted.An 'ad hoc' law

The law is created to judge crimes committed between October 7 and 10, 2023, and will classify murders, rapes, kidnappings, looting, and other crimes as “crimes against the Jewish people”, “crimes against humanity”, and “war crimes”. It also includes offenses committed subsequently against hostages transferred to Gaza, including those who died during captivity. To be able to impose death sentences, the court will rely on existing laws in Israel, such as the Prevention and Punishment of Genocide Offenses Law of 1950, offenses against the sovereignty of the State, or the anti-terrorism law approved in 2016. This would allow the death penalty to be applied not only for murders but also for rapes and genocide offenses.Although the court will be in Jerusalem, proceedings will be divided according to the attack scenarios, such as the Nova Festival or the communities in southern Israel, such as Nir Oz. Each case will have three judges, and in case of a death sentence, the appeal would be automatic before a court presided over by a former judge of the Israeli Supreme Court. The accused will have the right to legal representation by lawyers licensed in Israel or the West Bank. If an accused person does not have their own defense, the court will assign them a lawyer, and the Israeli state will attempt to subsequently recover the cost of the defense by deducting it from funds transferred to the Palestinian Authority.Retroactive character

One of the most controversial features is the public dimension of the trials. The main hearings, such as the opening of the trial, the reading of the charges, the verdicts, and the sentences, will be broadcast live via a dedicated website. Adding to this is another problematic point: the retroactive nature of the law. Unlike the law passed in March, which already expanded Israel's ability to impose the death penalty for terrorism offenses with fatalities, this law against participants in the October 7 attacks allows for the investigation and prosecution of acts that occurred before the legal framework was approved.Although Minister Yariv Levin, the main proponent of the initiative, has assured that the trials will meet "all international standards" and will allow for "international recognition and trust, especially from the United States," various Israeli human rights organizations have expressed concern about the content of the legal text.The Association for Civil Rights in Israel (ACRI) states in declarations to ARA that despite the Ministry of Justice's efforts to preserve certain procedural guarantees, "this is not a standard criminal proceeding." The organization particularly warns about the elimination of the unanimity requirement in military courts for imposing the death penalty, so that a majority of judges will be sufficient to issue it.Along the same lines, organizations such as the legal center for the rights of the Arab minority in Israel Adalah, the Public Committee Against Torture in Israel (PCATI), and the organization that provides legal assistance and defends the rights of Palestinians HaMoked have gone further in their criticism. In a joint report, they warn that the new legislation places Israel "in direct opposition to the international trend towards the abolition of the death penalty" and could violate international law obligations, including the prohibition of cruel, inhuman, or degrading punishment.According to these entities, the text grants judges broad discretion to deviate from ordinary procedural guarantees. They also warn that the exceptional system of appointing magistrates and the risk of political influence could compromise the standards of a fair trial. The complaint further adds that the public broadcast of the proceedings could turn them into "show trials" and erode the presumption of innocence, by exposing defendants publicly before a final sentence is reached.Israel has only executed one person since its founding: Adolf Eichmann, convicted of genocide and crimes against humanity for his role in the Holocaust in 1962. In 1988, Israeli courts also sentenced John Demjanjuk to death for crimes committed in Nazi camps, but the Supreme Court later overturned the sentence.