Nearly three years after Hamas led the Oct. 7, 2023 attack on Israel, the country is preparing to prosecute hundreds of Palestinians suspected of crimes committed on the deadliest day in Israeli history.
On Monday, Israel’s Parliament enacted a law paving the way to begin military trials for the suspects, who have been held without charge since their capture. Some could be charged with genocide, which is punishable by a death sentence in Israel.
Prosecutors have yet to finalize the indictments, and in some cases, investigations are still continuing, according to two senior Israeli law enforcement officials who requested anonymity to discuss ongoing legal proceedings. It may take a year before trials begin, one of the officials said.
The law passed with overwhelming support from the governing coalition and the parliamentary opposition. Ninety-three lawmakers out of a total of 120 supported the bill, no one opposed.
Proponents of the law say it sets up what could become one of the most consequential legal proceedings in Israeli history.
“This is more than an ordinary law,” said Yulia Malinovsky, an opposition lawmaker and a co-author of the legislation. “This is justice, heritage, memory, history.” She said at least 350 prisoners could face charges — a number that, along with almost all other information about the detainees, has been kept secret.
“It is unthinkable that vengeance guides a court when deciding upon the verdict of an offender,” Ofer Cassif, an opposition lawmaker told lawmakers on Monday before the vote. “But unfortunately, this is exactly what the law aims to do.”
In the 2023 attack, thousands of Palestinian militants crossed from Gaza and attacked southern Israel, killing roughly 1,200 people, according to Israeli officials. They took some 250 hostages back to Gaza. The United Nations has said the attack involved war crimes and possible crimes against humanity.
Legislators have frequently drawn comparisons between the upcoming trials and the 1961 trial of Adolf Eichmann, the senior Nazi official whose prosecution in Israel ended in his hanging the following year. That was a landmark in Israel’s reckoning with the Holocaust.
The Oct. 7 attack ignited a two-year war in Gaza during which Israel killed more than 70,000 Palestinians, according to Gaza’s health ministry.
Israel has killed most of the accused masterminds of the Oct. 7 attack, including Hamas’s top leader in Gaza, and it is unclear whether any senior operatives are among the detainees who will stand trial.
A dormant military court will be revived to handle the cases, which will go before three-judge panels in Jerusalem, and parts of the trials will be broadcast live, according to the new law. This could provide the first public word on the identities of the detainees or the allegations against them.
Lawmakers have said a separate law was necessary to address the unprecedented nature of the attack requiring legal adjustments beyond ordinary court procedures, and to avoid overwhelming Israel’s regular judicial system.
Justice officials have attributed the long delay in prosecutions to continuing investigations and arrests. Current and former officials have described unique difficulties in investigating the attack. Potential witnesses were killed. And with hundreds of scorched vehicles and bullet-riddled houses to inspect, overwhelmed law enforcement authorities were stretched too thin to conduct the evidence gathering protocols required under Israel’s criminal law.
Rights groups say that the new law sets up a separate legal track that will undercut what are already minimal due-process rights for Palestinians, and that the judges will face overwhelming public pressure to convict them.
“If you want a real trial, you need to give people the ability to defend themselves,” said Sari Bashi, the director of the Public Committee Against Torture in Israel, a rights group. “When you have the entire weight of the state hellbent on proving guilt,” she added, “you’re setting everybody up for what is going to be deeply unfair to defendants, and I think deeply unsatisfying to victims.”
The trials will likely bear only a limited resemblance to ordinary Israeli criminal cases.
Defendants would be required to appear in person only at some hearings. They will have lawyers but public defenders would be prohibited from representing them. The court would also be empowered to override certain rules of evidence and some other criminal procedures, according to the law.
The authors of the new law say the special provisions are necessary because of the complexity and scale of the undertaking, including the huge volume of evidence.
The law removes guardrails for Palestinians who are already systematically denied legal protections in the Israeli justice system, said Muna Haddad, a lawyer with Adalah, a Palestinian rights group.
The new legislation, she said, would strip away what few guardrails remain to protect prisoners who have been held in conditions that their lawyers have described as torturous — raising the prospect of convictions based on confessions made under duress.
Over the course of the war, Israel detained more than 6,000 Gaza residents, according to figures provided by Ms. Bashi and court records. They were jailed in Israel under a separate law that allows the detention of those suspected of being enemy combatants during a war.
Gazans detained in Israel during the war have described severe abuse and violence in Israeli jails.
Israel has agreed to release most of those not linked to the Oct. 7 attack, but about 1,200 Gazans remain in detention in addition to those suspected of playing a role in the attack, according to HaMoked, an Israeli rights group.
Ms. Malinovsky, the opposition lawmaker, said she expected prosecutors to seek capital punishment for only the most serious offenders.
Israelis have increasingly pushed to pursue the death penalty for Palestinians amid a rightward shift in the country following the Oct. 7 attack. In March, Israeli lawmakers enacted a law permitting the hanging of Palestinians convicted of deadly attacks. It has not yet been put into practice, and it would not apply retroactively to the suspected Oct. 7 assailants.
For some in Israel, including many relatives of the Oct. 7 victims, the focus on low-level perpetrators misses a more fundamental question of accountability. They say that justice can happen only when Israeli leaders are held accountable for their failure to prevent the attack.
Some officials who served in senior defense positions during the attack have since resigned, but Prime Minister Benjamin Netanyahu has resisted calls to establish a state commission of inquiry, which many view as the only mechanism that would ensure a robust and independent investigation.
“The real goal isn’t to hang anyone in the town square. It’s to prevent the next disaster,” said Hila Abir, whose 24-year-old brother, Lotan, was killed in the attack.
He and more than 300 other young Israelis were killed while trying to flee the Nova music festival on Oct. 7, a rave that became one of the attack’s deadliest sites.
“Either way,” Ms. Abir said, “what was mine has already been taken.”
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