For decades, Israel prided itself on an ostensibly independent and professional civilian legal system, but when it came to prosecuting the accused of the October 7 attack, it chose to establish an ad-hoc military court. The Law for the Prosecution of October 7 Massacre was recently passed by an exceptional majority of the Israeli Knesset, establishing procedures for the ad-hoc military court. It will prosecute offences committed in the “terrorist attack of Hamas and accomplices between October 7-10, 2023, including subsequent offences against hostages and dead bodies taken on these days”.
How was this court designed to address the serious crimes committed on that day? Apparently, by breaking with all standards of truth-seeking and fair trial enshrined in international human rights law, International Humanitarian Law, and in Israeli criminal law and procedure. It will allow convictions for genocide and death penalties on a majority vote, disable means of effective defense, and exclude defendants from trial proceedings. Israel is preparing for show trials that will last a decade, filmed and streamed online, while allowing for the accused to participate almost only via video conferencing. At a time when the facts about the October 7 attack continue to be disputed, Israel is credibly accused of Genocide before the International Court of Justice, and its leaders face arrest warrants for war crimes and crimes against humanity in the International Criminal Court, this tribunal seeks to produce a political counternarrative.
This is not an isolated case. The authoritarian Knesset has waged a war against the independence of the judiciary, which many Israelis have resisted on every available platform. Simultaneously, Israeli legislators are codifying a de-jure apartheid regime against Palestinians. They are fast tracking a discriminatory and vindictive agenda that included gutting all guarantees against arbitrary detention and torture of Palestinians, passing the Death Penalty for Terrorists Law applying only to Palestinians, followed up by this special military court. Ministers and Members of the Knesset (MK) champion legally sanctioned mistreatment of Palestinian detainees. MK Zvika Fogel from the Otzma Yehudit Party (Jewish Power, headed by Itamar Ben Gvir), epitomized this dehumanization while passing another post-October 7 law replacing in-person remand hearings with video conferencing: “The only way for a terrorist to see the world before the death penalty is via Zoom. He does not deserve any more than that.”
The October 7 attack involved serious crimes against humanity and war crimes committed by Hamas and other armed groups. The ICC issued arrest warrants against three Hamas leaders (subsequently killed by Israel), and international human rights organizations determined that civilians were deliberately killed, abducted, and abused. These crimes should be prosecuted and punished in the interests of truth, accountability, and justice to the victims and survivors, as should Israel’s ensuing crimes in the Gaza Strip. Regrettably, this military court is prone to fail this important mission. If anything, it is a further demonstration of Israel’s utter dehumanization and demonization of Palestinians.
Prosecuting crimes of this scope and nature is never an easy task, covering large scale events, multiple perpetrators, clandestine and complicated chains of command, participation of civilians, intense combat, and destruction of potential evidence. Israel detained between 200-300 suspects since that day, of which no one has been charged to date. Israeli investigations collected digital evidence, testimonies of survivors and first responders, documents from the armed groups, and interrogated suspects. However, a major issue with this evidence is that suspects were interrogated by security authorities with a record of torture and ill-treatment; this time, authorities did not even allow visits by the International Committee of the Red Cross. Generally, the treatment of Palestinian detainees in Israeli prisons since October 7 included unprecedented systematic torture. The suspects of October 7 were treated even harsher: they suffer abuses in an underground detention facility (Rakefet) that was previously closed after being ruled as unfit for human life.
Since after WWII, international and domestic systems have developed international, domestic, and hybrid courts to prosecute international crimes. None of those mechanisms are perfect, but their design emphasized that the legitimacy of prosecutions depends on strict compliance with procedural fairness. Since the Nuremberg and Tokyo military tribunals, international criminal law moved away from military tribunals towards civilian ad-hoc tribunals and the International Criminal Court; democratic legal systems created complementary civilian chambers. Israel itself prosecuted Nazi crimes in civilian courts, convicting Adolf Eichmann and acquitting John Ivan Demjanjuke. Some mass casualty cases of the second intifada were also brought in civilian courts (rather than the military courts in the West Bank) to maintain an image of impartial justice. The United States was exceptional in establishing the Guantánamo military commissions after 9/11. Those, however, proved to be disastrous not only for the accused, but also utterly unsuccessful in bringing those responsible for the 9/11 attacks to justice.
Extended Military Jurisdiction
Military courts are all too familiar to the Israeli legal system. The new military court is authorized by the Defence (Emergency) Regulations – 1945, passed by the British colonial government of Palestine and subsequently adopted by Israel, authorizing the Israeli Defense Forces to establish military courts internally. While the military courts in the West Bank are fairly well known, Israel’s internal colonial governance is less familiar: Israel used the British regulations continuously to prosecute its Palestinian citizens during a military regime that was imposed on them between 1948-1966, and then in the “Lod Military Court” (located in the city of Lod, renamed in Hebrew from the original Arabic name al-Lydd) between 1967-2000. After 1967, similar military courts functioned in the West Bank and the Gaza Strip, albeit operating under the law of occupation. The continuous military prosecution of Palestinians constitutes a segregated dual legal system, characterizing Israel’s apartheid regime.
The new military court breaks from these predecessors in important ways, degrading its credibility even below these previous shams. It can adjudicate offences under Israel’s civilian law, including Genocide and Crimes against the Jewish People, Impairment of Sovereignty or Integrity of the State, Causing War, and Aiding and Abetting the Enemy, all carrying the death penalty. Why, then, an entirely new institution? Unlike civilian courts, the military court is not independent, operating without codified procedures, and thus potentially gutting all fairness guarantees. Condemned by major Israeli NGOs, it allows indefinite detention pending trial; compromises evidence law; does not require translation of court documents; and makes translation during hearings discretionary. While normally the most robust protections are provided for the most serious crimes, this court does the opposite: watering down independence and fair trial guarantees for the gravest of crimes.
Abdicating Fair Trial
The military court does not guarantee the independence of the judiciary and is not an impartial, regularly constituted court. It is subordinate to the government and to a hierarchical chain of command. The judges will be appointed especially for this court by military authorities after having served or qualified to serve as civilian or as military judges in the West Bank, Gaza, or the IDF courts-martial. Their appointments would be for 7 years or 10 years, absent any meaningful provisions for independence and security of tenure. Prosecutors will also be appointed by the military. The court can “deviate from criminal procedure and evidence rules, including disclosure of investigation material to the defense, the chain of evidence” and more, if it deems it necessary and fair.
There is a stark opposition between the publicity of the proceedings and the rights of victims, and the exclusion of the defendants and degradation of fair trial rights. The main court proceedings will be filmed and streamed online; the military prosecution will create a special apparatus to ensure victims’ rights. By contrast, the institutions in charge of defendants’ rights have been abdicated: the Office of the Public Defender, a pillar of Israeli criminal justice, will not be allowed to represent them. This standard has been degraded, and defence will be performed by court-appointed or private defense counsels without any institutional support. The defendants themselves are non-citizens from the Gaza Strip who will find it difficult to obtain qualified representation, as most lawyers will not willingly defend them. To avoid any public contribution to the defense, the Israeli legislature also determined that any lawyers’ fees will be deducted from tax payments to the Palestinian Authority. Israel has thus performatively denounced any responsibility to provide criminal defense.
The impact of banning public defenders cannot be overstated; every right of the accused depends on a defense lawyer who can claim it. Even in the infamous Guantánamo military commissions, the United States provided the accused with Judge Advocates Generals (JAGs), who were joined by public interest lawyers. In Holocaust trials, Israel allowed foreign lawyers to represent the accused. In this court, only lawyers admitted in Israel or in the West Bank could litigate, this barring foreign lawyers. The near total ban on defense lawyers sends a chilling message.
This effect is magnified by additional provisions dehumanizing the defendants. While the victims and survivors are allowed special arrangements to be present in court hearings, the presence of defendants is only required during arraignment, giving testimony, and their verdict. In all other hearings, they will participate via video conferencing. The law implies that they are too dangerous: it establishes a special force in the prison service to bring the accused to court, under the National Security Minister Itamar Ben Gvir, who boasts about mistreatment of detainees. His party member Zvika Fogel, quoted above, argued that the detainees are dangerous to their captors: This important law that we passed today […] is a life-saving law… this law enables prison fighters to confront the threats they are facing, the challenges and operations, extremely successfully.
Thus, instead of an adversary forum where the accused get their “day in court”, these trials are designed to exclude and banish.
Ahead in the Race to the Bottom
Behind multiple smoke screens of never-ending wars, the Israeli government is completing the transformation of an already tainted defactoapartheid system into a full-blown dejure apartheid. Military courts have thus far operated on the margins of the Israeli legal system. Now, the new military court is brought to the forefront to conduct political show trials, epitomizing the simultaneous degradation of Palestinians and of the standards of criminal and international justice, leading a global race to the bottom. This court will nevertheless become a new arena for struggles over truth and justice; human rights advocates for both defendants and victims should roll up their sleeves, even when the struggle seems to be against all odds.
This article is republished from EJIL:Talk! under a Creative Commons licence. Read the original article.
Smadar Ben-Natan is an assistant professor of human rights at the Schnitzer School of Global Studies and Languages, University of Oregon, specializing in military courts, torture, and incarceration in Israel/Palestine. She was the lead researcher in Amnesty International’s 2025 Report on the October 7 attack.
