String of Legal Challenges Still Preventing Prosecution of October 7 Hamas Suspects

Nearly a year after Hamas’s assault on Israel on October 7, a range of legal obstacles has delayed Israel’s justice system from commencing trials for the thousands of terrorism suspects captured on that day or in the subsequent war in Gaza.

A report in Haaretz, citing anonymous sources from the State Attorney’s Office, highlighted several issues hindering the prosecution. These included insufficient evidence in many cases, an already overburdened justice system, lack of defense representation for those facing charges, and concerns that starting legal proceedings might endanger hostages still in Gaza or jeopardize ongoing negotiations to secure their release.

The report indicated that investigations into the thousands of suspected terrorists arrested since October 7 are either concluded or nearing completion. Despite this progress, it remains uncertain when these suspects will face trial.

On that day, more than 3,000 Hamas militants infiltrated southern Israel, killing around 1,200 people—mostly civilians—across various towns and military bases. The attackers also committed brutal crimes, including sexual violence, and took 251 hostages.

Israeli forces killed approximately 1,000 of the assailants, with many others retreating to Gaza. About 200 were captured alive, and thousands more have been detained in Gaza over the past year, although exact figures from the IDF are lacking, and many suspects have been released after interrogation.

In some cases, although investigations are complete, prosecutors have scant evidence to directly link certain suspects to specific killings, making a successful prosecution difficult.

One approach proposed by Haaretz involves grouping suspects by the towns where they operated during the attacks and trying them together. However, this method could face challenges from the International Court of Justice and other bodies for failing to align with international legal standards.

Another solution to the strain that hundreds of trials would place on the judicial system is the possibility of holding these trials in military courts, according to the report.

But this solution introduces another problem: who will represent the suspects? Israeli public defenders have refused to take on their defense. No alternative proposals were mentioned in the report, but in a parallel situation during the 1961 trial of Nazi war criminal Adolf Eichmann, Israel relied on foreign attorneys.

A final issue raised in the report concerns the safety of hostages still held in Gaza, as ongoing mediation efforts continue to seek an exchange deal that could see hostages released in return for Palestinian prisoners and a ceasefire.

Currently, the suspects arrested since October 7 are housed in two Israeli facilities, Ofer and Ktziot prisons. They are divided into two categories: those believed to have been involved in the October 7 attacks or its planning, and who are treated as criminal defendants, and those held under administrative detention as unlawful combatants.

These divisions were implemented to protect the rights of the criminal defendants, as reported by Haaretz, to prevent potential accusations of mistrials that might ultimately allow suspects to be released. Some suspects have been shifted between these groups as new evidence emerges, even in recent weeks.

Since the United States recently indicted Hamas leaders, including Yahya Sinwar, following the murder of six hostages by Hamas, Israel’s State Attorney’s Office has faced growing criticism from police and the public for not prosecuting those involved in the October 7 attacks.

However, Yuval Kaplinksy, the former head of the State Attorney’s international department, explained to Haaretz that Israel’s legal framework does not permit the indictment of individuals who are not in custody or accessible for legal proceedings.

“Unlike the US, Israel doesn’t indict people who are not under arrest or available for proceedings,” he clarified.

“The US sees a duty to the Americans harmed by October 7 in filing an indictment,” he said, “but I don’t think there’s a single prosecutor in the US who believes that Sinwar will really be caught and put on trial in the US.”

As of now, 97 of the 251 hostages kidnapped on October 7 are believed to still be in Gaza, including the remains of at least 33 people confirmed dead by the IDF.

In a temporary truce in late November, Hamas released 105 civilians, with four hostages freed earlier. Eight hostages have been rescued by Israeli troops, while the remains of 37 have been recovered, including three who were accidentally killed by Israeli forces during escape attempts.

Hamas continues to hold two Israeli civilians who entered Gaza in 2014 and 2015, along with the bodies of two IDF soldiers killed in 2014.

{Matzav.com Israel}