Israel has passed a new law to impose the death penalty and conduct public trials for those involved in the unprecedented Hamas-led attacks and mass hostage-taking in Israel in October 2023.
The legislation was passed by 93 votes to 0 in Israel’s parliament – the Knesset – and was unusually jointly sponsored by government and opposition politicians.
The remaining 27 lawmakers were absent or abstained.
“May everyone see how the victims and their families look into the whites of the eyes of those murderers, rapists and kidnappers,” Yulia Malinovsky, a co-sponsor of the bill, told a news conference ahead of the parliamentary votes.
“We have reached the finish line, which is actually the starting line: the beginning of historic trials, which the whole world will see.”
Israeli human rights groups have spoken out against the new law, opposing the principle of capital punishment but also warning against “show trials” based on confessions allegedly extracted under torture.
7 October 2023 was the deadliest day in the history of Israel. Hamas-led fighters killed over 1,200 people in southern Israel, mostly civilians. Another 251 were kidnapped and held in captivity in the Gaza Strip, including men, women, children, and foreign nationals.
The events triggered the deadliest ever war in Gaza, with 72,740 people killed to date – the majority children, women and the elderly, according to the Hamas-run Health Ministry.
Although Israel’s parliament passed the Death Penalty for Terrorists Law in March, aimed at Palestinians convicted of terrorism offences, it does not apply retroactively. This meant that separate legislation was required to deal with those alleged to have carried out the assault.
Israeli politicians supporting the law say it will allow for a trial of historic significance, comparing it to that of the Nazi war criminal Adolf Eichmann. Eichmann – an architect of the Jewish Holocaust – was hanged in 1962, becoming the only person previously sentenced to death by an Israeli civil court.
The new law creates a special legal framework for prosecuting those accused of direct involvement in the attacks, including members of the Nukhba special forces unit of the al-Qassam Brigades, the military wing of Hamas, who were captured in Israel.
They are expected to face charges ranging from terrorism and murder to sexual violence and also genocide – which will carry the death penalty. They will be tried before a special military court in Jerusalem with different rules from regular criminal trials.
Key moments of hearings including the opening, verdict, and sentencing are due to be filmed and broadcast on a dedicated website.
Victims of the 7 October assault and bereaved families joined parliamentary committee discussions about the new legislation.
Carmit Palty Katzir said she took part to safeguard the rights of those who were worst affected. Her brother, Elad Katzir was taken hostage from their childhood home in Kibbutz Nir Oz and killed in captivity. Her father, Rami was killed and her late mother, Hana, was taken hostage and later released.
“It’s important to understand that in so many ways this event hasn’t ended,” Palty Katzir told Israeli army radio. “So many of the families have been left with completely open-ended questions about the murders. A bulk of information simply doesn’t get to us.”
Palty Katzir said she hoped for answers from the trial of suspects but demanded that sensitive details should be revealed to victims before they were made public.
Israel’s Prison Service currently holds 1,283 people as so-called unlawful combatants, without formal charges being brought. The vast majority are from Gaza. A small number of Gazans are also believed to be held by the Israeli military, and reportedly 300 to 400 Gazans are held as criminal defendants, suspected of involvement in the 7 October attacks.
Proponents of the new law say the military court will adjust some normal rules of evidence and procedure so that it can handle a legal process of huge size and import. They argue that this will not significantly affect the fairness of the trial.
However, human rights groups dispute that – saying existing procedures are designed to protect defendants’ rights. They expect some hearings to be held without the defendants being physically present.
“Government coalition members have made it clear that they expect mass executions to result from this court that they’ve established,” says Sari Bashi, executive director of the Public Committee Against Torture in Israel.
“We know that Palestinians being held on suspicion of participating in the crimes of October 7 have been tortured, systematically and in a widespread way. My concern is that they are going to be convicted and even executed based on confessions extracted under torture.”
“The people who are responsible for attacking civilians in southern Israel should be held accountable, but not like this,” Bashi goes on. “They deserve due process, and the death penalty should never be on the table.”
The Israeli government denies accusations of widespread torture asserting that it complies with standards of international law.
At Sunday’s news conference the Justice Minister Yariv Levin told journalists that “work of an enormous and unprecedented scale” had been carried out under his direction to set up the special legal framework.
He said an investigation team “watched thousands of hours of videos, reviewed a huge body of evidence and at the same time interrogated the terrorists who carried out the massacre and were captured.” Ultimately, video and audio documentation is expected to be preserved in the State Archives.
Many Gazans are still seeking information about relatives who are known or believed to have crossed the border into Israel during the October 2023 attacks or who were detained afterwards.
A few dozen protested against the new death penalty law outside the headquarters of the International Committee of the Red Cross in Gaza City on Monday.
“Look, this law is cruel, it’s a law that tries to take away the hope that you’re living on,” Hisham al-Wahad, the brother of missing journalist Haitham al-Wahad, told the BBC. “We as families of prisoners and families of the missing are calling on states and public opinion – international, Arab and Islamic – to take action to stop such a law and such a matter.”
The al-Wahad family say that Haitham, a cameraman, was last seen with colleagues covering events near Israel’s Erez crossing into Gaza at Beit Hanoun – after it had been overrun by Hamas gunmen on 7 October.
While Israel has for years been a de facto abolitionist state, recent polls have indicated growing support for the death penalty among Jewish Israelis – particularly when it comes to Nukhba fighters convicted of terrorism.
Surveys also show wide support for an independent commission of inquiry into the 7 October attacks although the current coalition has committed only to a government-led inquiry.
Many bereaved Israeli families insist that the new special military tribunal law only addresses one aspect of justice.
Carmit Palty Katz has said: “It cannot be that we’re focused on the Nukhba terrorists and not how this horrible tragedy happened and who will take responsibility, who will take the legal stand on this or take into consideration relatives’ healing.”
