חומר רקע

Israel Under Fire Vol. 1 International Legal and Diplomatic Battlefield Edited by Amb. Alan Baker 83 Detention, Prosecution, and Punishment following the October 7 Massacre Lt.-Col. (res.) Maurice Hirsch Executive Summary On the morning of October 7, 2023, more than 3,000 terrorists from Gaza, including members of Hamas and other terror organizations, invaded Israel and conducted a heinous massacre. The terrorists were joined in the massacre by Gaza residents. In response, Israel launched a war against the Palestinian terrorist organizations in the Gaza Strip and in Judea and Samaria. During the war in Gaza thousands of terrorists were killed and thousands more were detained, including terrorists who participated in the massacre and other terrorist activities. This chapter discusses the legal frameworks and complexities associated with detaining, prosecuting, and punishing these terrorists. It offers an overview of the relevant provisions of Israeli law, the law applicable in Judea and Samaria, and where necessary, references to international law. While intuitively any decent society would demand the Israel Under Fire 84 full punishment of the planners and participants in the October 7 massacre, in the current context there could be a substantial complicating factor: as part of the invasion, the Gazan terrorists took 253 people hostage. While some of them were released, 125 hostages remain in captivity.1 Despite the heinous nature of the attack, Israel seeks to maintain its position among the liberal democracies of the West, fighting terror within the framework of the law as well as the international humanitarian norms and principles, even while its enemies intentionally and openly breach such law, norms, and principles. Similar to the punishment that most Israelis would have imposed on Nazis, most of the Israeli public would support imposing and implementing the death penalty on most, if not all, of the terrorists who planned and participated in the October 7 massacre. The death sentence for these terrorists would be the only moral punishment for people who committed such horrific genocidal acts. On the morning of October 7, 2023, more than 3,000 terrorists from Gaza, including members of Hamas, Palestinian Islamic Jihad, the Popular Front for the Liberation of Palestine, and the al-Aqsa Martyrs’ Brigades, all internationally designated terror organizations, together with others, invaded Israel and conducted a heinous massacre. The terrorists flooded more than 30 Israeli towns, villages, kibbutzim, and a number of military installations. Men, women, the elderly, sick people, children, and babies were murdered. Some were shot, others were raped. Some were beheaded, many were tortured, others were burned alive. Approximately 1,200 people were murdered. All that remained of some victims were their teeth. Two hundred and fifty-three hostages, most of them alive but also some bodies, were snatched by the terrorists to be used as leverage against Israel. An additional 6,900 people were Lt.-Col. (res.) Maurice Hirsch 85 wounded to different degrees. The attack was carried out under a covering barrage of more than 3,000 rockets and mortars fired by the terrorists, indiscriminately targeting Israel’s civilian population.2 The terrorists who invaded Israel were joined in the massacre by Gaza residents, and were armed with machine guns, RPGs, regular hand grenades, explosives, and other weapons. They moved around in trucks, motorbikes, bicycles, and even on foot. They dispersed in an organized manner with different groups storming multiple locations. In the battle that took place in the different locations of the initial attack, an estimated 1,500 terrorists were killed. Hundreds of other terrorists escaped back into the Gaza Strip and hundreds were later apprehended by the Israeli security forces. In response to the massacre, Israel launched a war against the Palestinian terrorist organizations in the Gaza Strip and in Judea and Samaria. During the war in Gaza thousands of terrorists were killed.3 Thousands more were detained, including terrorists who participated in the massacre and other terrorist activities.4 This chapter will discuss the legal frameworks and the complexities associated with detaining, prosecuting, and punishing these terrorists. It will offer an overview of the relevant provisions of Israeli law, the law applicable in Judea and Samaria, and where necessary, references to international law. The term “terrorist” in this chapter will collectively refer to people who are members of designated terrorist organizations, people who participated in the attacks on Israel on October 7 and in the massacre, or any part thereof, and people who operated on behalf of the terrorist organizations, whether prior to October 7, on that day, or since. Israel Under Fire 86 Detention Israeli law, applied within the 1949 Armistice Lines,5 has four frameworks of detention that could potentially have been relevant for dealing with the terrorists arrested in Israel on the day of the massacre and in certain circumstances, also some of those arrested in Gaza since then. The fundamental difference between these procedures is that while one— arrest for investigation—focuses on determining criminal responsibility for past acts, the other three—administrative detention, detention of unlawful combatants, and the holding of prisoners of war—are all preventive6 in nature. Arrest for Investigation Arrest for investigation in Israel is governed by the Criminal Procedure (Enforcement Powers—Detention) Law, 5756-1996. The law provides that persons suspected of committing a crime can be arrested for the purpose of investigation.7 After an initial period of arrest, if the authorities wish to keep the suspect under arrest he must be brought before a judge.8 Given sufficient prima facie evidence and a reason for arrest,9 the judge is authorized to extend the arrest of the suspect for prescribed periods of time.10 As a rule,11 suspects who have been held under arrest for 75 days but have not been indicted must be released, unless a judge of Israel’s Supreme Court orders the suspect’s continued remand.12 While there are certain additional provisions13 in Israeli law that apply specifically to detention of persons suspected of committing specific offenses,14 as a general rule, the body of Israeli criminal law and ancillary practices, such as remand for Lt.-Col. (res.) Maurice Hirsch 87 investigation, is designed to deal with commonplace criminal activity, and even a limited degree of terrorist activity. The acts committed by the terrorists on October 7—the infiltration to Israel, murder, rape, torture, arson, and so on— were clearly criminal offenses. Accordingly, the perpetrators could have been held under arrest pursuant to the provisions of this law. However, the scope of the actions carried out during the massacre and the number of participants, were far beyond the purveyance of regular criminal activity and more akin to warlike actions, with battles against heavily armed terrorists continuing for hours. Applying the regular laws of arrest, which would have included the duty to bring anyone arrested before a judge within a relatively short time, would not necessarily have been immediately possible. While a blanket order prevents the publication of any details of criminal proceedings regarding the October 7 massacre,15 video recordings of some of the interrogations of the terrorists released by the Israeli authorities clearly indicate that hundreds of terrorists are now being held in detention for purpose of investigation, and it is not unreasonable to suppose that many of them are now being held in detention pursuant to the regular laws. Administrative Detention16 The second possibility would be to hold the terrorists in administrative detention pursuant to the Emergency Powers (Detentions) Law, 5739-1979. According to this law, Israel’s defense minister can order the arrest of a person if he has “reasonable cause to believe that reasons of state security or Israel Under Fire 88 public security” require the arrest.17 An arrest order issued by the minister can be for a period of up to six months,18 which can be renewed for additional periods of up to six months.19 A person held in administrative detention must be brought before the president of the district court within a short time. The president can approve, cancel, or shorten the length of the order.20 Israeli administrative detention is rooted in the 1945 British Mandate period Defense Regulations. The 1979 law surpasses the requirements for administrative detention as set out in Article 78 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (the Fourth Geneva Convention). While the law would seem to provide wide scope for detention, case law has added a number of limitations. First, the Israeli Supreme Court judgments require that the minister and subsequently the judge be convinced that the person against whom the order has been made poses a personal and substantial security risk. The evidence underlying the risk must show an individual threat to “a degree of near certainty,” and that national or public security would be seriously harmed if the order is not issued.21 Additionally, case law has repeatedly noted that a person can only be held in administrative detention as a last resort and after other alternatives, such as arrest as part of a criminal investigation and prosecution, have been exhausted.22 As a rule, the provisions of the Emergency Powers (Detentions) Law are primarily designed for use as a domestic security measure, and as such are used very infrequently. Administrative detention may also be used in circumstances where evidence is provided by intelligence and security sources that cannot be revealed in open court. Since the law is forward looking, preventive in nature, and Lt.-Col. (res.) Maurice Hirsch 89 is not usually used as an alternative to criminal proceedings,23 it could theoretically have been used to detain some of the terrorists, in certain circumstances. The difficulties would mostly have arisen in demonstrating the specific circumstances in which “Prisoner X” was arrested,24 that there was no other alternative than to hold the subject in administrative detention, and that the evidence showed a concrete and individual danger that he posed to the national or public security. In most cases, given the circumstances of the arrests on October 7, the Israeli security authorities would have faced an uphill battle to meet that standard. As for specific arrests subsequent to October 7, it is more likely that the option of administrative detention could have been used. These arrests would also only have been possible in the absence of any other means to hold the terrorists in detention. Unlawful Combatants As a general rule, international humanitarian law (IHL)25 distinguishes between two main categories of people: soldiers and civilians. Soldiers are legitimate military targets and can be the object of an attack. When soldiers are captured by the opposing side, they are entitled to enjoy the protections of the 1949 Third Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention). Civilians in the territory of the enemy state are protected from attack and enjoy the protection of the Fourth Geneva Convention and the First Protocol (1977) thereto.26 Complications arise when civilians participate, in any manner, in the hostilities. These civilians, referred to as “direct participants in hostilities” or “unlawful combatants,” lose Israel Under Fire 90 their protections as civilians and do not enjoy the protections of soldiers. Since civilians can enter this category for acts as simple as using a program for cell phones that allows them to report on the movements of enemy forces,27 it is clear that the October 7 terrorists and other Gazan terrorists could be considered unlawful combatants. The Israeli Incarceration of Unlawful Combatants Law, 5756-2002,28 was designed to provide a legal tool for preventive detention in the specific context of transboundary armed conflicts involving terrorists.29 Drawing its inspiration from a combination of administrative detention, as recognized in Article 78 of the Fourth Geneva Convention, and provisions regarding the incarceration of prisoners of war, the Unlawful Combatants Law provides a legal framework for the detention of such foreign nationals involved in fighting for the enemy. Distinguished from the regular Israeli administrative detention described above, the Unlawful Combatants Law provides for the detention of both those who participate in hostilities against Israel or those members of a force carrying out such hostilities, with the goal of preventing their further participation. Accordingly, the law could be applied to those terrorists who participated before, during, and after the October 7 massacre in the terror activities based on their active participation in hostilities against Israel. It could further be applied to other terrorists based solely on their organizational affiliation with the Palestinian terrorist organizations, without necessarily having to show active participation in the hostilities themselves. According to different reports, hundreds of the Gazan terrorists are indeed being held in detention as unlawful combatants. Lt.-Col. (res.) Maurice Hirsch 91 Prisoners of War Israel does not have a specific law that applies to the detention of prisoners of war. However, paragraph 10 of the Military Justice Law, 5715-1955, provides that the law applies to prisoners of war subject to regulations promulgated by the defense minister. Regulations regarding the detention of prisoners of war, based on Israel’s obligations pursuant to the Third Geneva Convention, were promulgated in 1966.30 According to the Third Geneva Convention, recognition of an enemy combatant as a prisoner of war has four cumulative requirements:31 (1) They must be “commanded by a person responsible for his subordinates;” (2) they must have “a fixed distinctive sign recognizable at a distance;” (3) they must carry “arms openly;” and (4) they must conduct “their operations in accordance with the laws and customs of war.” As opposed to the terrorists, prisoners of war enjoy rights of protection pursuant to the convention, and are not considered to have committed criminal acts by dint of their participation as soldiers of the enemy army. Since the terrorists detained, whether on October 7 or thereafter, do not meet any of the requirements to be classified as prisoners of war, none of them were held in this status.32 Prosecution The subject of the prosecution of the terrorists arrested on October 7 and thereafter in Gaza raises many different questions whose comprehensive discussion is beyond the scope of this chapter.33 While some of the questions concern the relevant judicial forum—whether civilian or military34—the Israel Under Fire 92 more substantive questions deal with the specific criminal provisions that would be relevant, and guiding legal principles. As a general rule, Israel prosecutes terrorists based on its Criminal Law. This law provides for a wide spectrum of offenses including among others homicide,35 rape,36 arson,37 and kidnapping.38 There are also a number of specific provisions, under Chapter 739 of the Criminal Law, that could potentially be relevant for terrorism-related activities in general but are not necessarily relevant for the massacre. Thus, while the crimes of Impairment of Sovereignty or Integrity of the State40 and Causing War41 are almost never used, whether in regular situations or in terror-related circumstances, the crime of Assistance to the Enemy in War42 is used in some terrorism cases. These offenses provide the everyday basis for prosecuting both regular criminals and terrorists.43 The Anti- Terror Law, 2016-5776, also provides specific terror-related offenses and provisions; however, as a general rule, the Anti- Terror Law did not redefine or incorporate the offenses listed above, but proscribed them as terror offenses if committed with a nationalistic, religious, or ideological motivation or with the goal of causing fear and panic in the public or to force government or international bodies to perform an act or refrain from performing an act. However, considering the nature, scale, and circumstances of the attack, the general consensus appears to be that these offenses do not sufficiently express the true and shocking nature of the events that transpired on October 7, 2023, and since. Accordingly, looking to what was considered to be the underlying driving force of the massacre—namely, indiscriminate mass murder and even potential genocide of Jews, simply for being Jews—consideration was also given to using the provisions of the Law for the Prevention and Lt.-Col. (res.) Maurice Hirsch 93 Punishment of the Crime of Genocide, 5710-1949. While this law was enacted soon after the establishment of the State of Israel, it has never previously been used as the basis for the prosecution of anyone.44 The provisions of the Law for the Prevention and Punishment of the Crime of Genocide would, among other things, have given expression to the Palestinian rejection of Israel’s right to exist and the rights of Jews to settle in Israel. For the Palestinians, all Jews, irrespective of their place of residence, are “settlers,” and all settlers are in the eyes of the Palestinians and many of their supporters, legitimate targets. This is particularly relevant for the events of the massacre that was led by Hamas and whose Covenant45 proclaims: “The Islamic Resistance Movement [Hamas] is one of the links in the chain of the struggle against the Zionist invaders.”46 According to the Hamas Covenant, all of Israel “is an Islamic Waqf consecrated for future Moslem generations until Judgement Day. It, or any part of it, should not be squandered: it, or any part of it, should not be given up. Neither a single Arab country nor all Arab countries, neither any king or president, nor all the kings and presidents, neither any organization nor all of them, be they Palestinian or Arab, possess the right to do that. Palestine is an Islamic Waqf land consecrated for Moslem generations until Judgement Day. “47 The Judgment Day, according to Hamas, “will not come about until Moslems fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him.”48 For Hamas the very existence of Israel invokes a religious command: “Jihad becomes the individual duty of every Moslem.”49 Thus, when the terrorists invaded Israel to carry out the massacre, they did so with clear intent, defined in the Israel Under Fire 94 Convention on the Prevention and Punishment of the Crime of Genocide50 and in Israel’s law that mirrors the convention, to destroy, in whole or in part, the Jewish people. However, having come to the conclusion that none of the existing legislation was sufficient to provide a comprehensive response to the massacre, the Knesset approved51 the formation of a confidential subcommittee in the Constitution, Law and Justice Committee to discuss the legal preparations, including new law and amendments to existing laws, that would be necessary for the prosecution of the terrorists. The subcommittee is ongoing. In normal circumstances, it would not be necessary to note that Israel will of course respect the elementary provision of nullum crimen sine lege—that a person cannot or should not face criminal punishment except for an act that was criminalized by law before they performed the act. However, in the current climate, when Israel is itself being baselessly accused of committing genocide, sometimes stating the obvious is also necessary. Judea and Samaria In parallel to the war in Gaza, and as an integral part of the war on the Palestinian terrorist organizations, Israel has also conducted extensive counterterror operations in Judea and Samaria since October 7. In the course of these operations hundreds of terrorists were killed52 and thousands were arrested.53 The focus of law enforcement and counterterror operations in Judea and Samaria, in the current context, subsequent to the Lt.-Col. (res.) Maurice Hirsch 95 October 7 massacre, is different from the situation in Gaza and in Israel for a number of reasons. First, the massacre happened in Israel and the participants were either killed at the scene, killed in Gaza in the war, arrested, or are still at large. There has been no suggestion that participants in the massacre fled to Judea and Samaria. As such the primary focus in Judea and Samaria is to continue the regular counterterror activities, but at higher intensity. Second, the law applied in Judea and Samaria is officially different from the law applied in Israel. The difference is rooted in the decision made by the Israeli government in 1967, following the liberation of the area in the Six-Day War from the Jordanian occupation, which was never recognized by the international community as legitimate, not to apply Israeli law to the entire area but rather to hold and administer the area under military control. As a consequence of this decision, Israel also agreed to act in accordance with Article 43 of the Hague Regulations Concerning the Laws and Customs of War on Land, and to respect, unless absolutely prevented, the laws that were in force in Judea and Samaria prior to the liberation. Accordingly, the law in Judea and Samaria, until the Oslo Accords, was a mosaic of Ottoman law,54 British Mandate law,55 Jordanian law,56 and military law promulgated by the Israeli military commander. Following the Oslo Accords, the Palestinian Authority also received legislative powers and promulgated many laws. While legally distinguished and separate, the Israeli military legislation is often substantially similar to the Israeli legislation. Considering the area’s complex and unique status, for the purpose of law enforcement Israel also opted to follow the provisions of Article 66 of the Fourth Geneva Convention and Israel Under Fire 96 establish nonpolitical military courts. In these courts, persons suspected of committing criminal offenses, including terror offenses, are adjudicated. While the Israeli military criminal legislation was issued over an extended period, most of it was amalgamated in 2009 into one central criminal code: the Order regarding Security Provisions [Consolidated Version] (Judea and Samaria) (No. 1651), 5770-2009 (OSP).57 The OSP codifies both the relevant criminal provisions for detention and the relevant offenses. Detention in Judea and Samaria As regards detention, the OSP provides that a person can only be arrested if he is suspected of committing a crime.58 After an initial period of arrest, if the authorities wish to extend the detention for investigation they must bring the suspect before a judge.59 Uniquely in the case of Israel, the Order regarding Security Provisions provides for arrest in time of combat.60 This provision, which can only be used in specific circumstances, provides for an extended initial period of arrest—up to eight days—to bring a suspect detained before a judge.61 If the suspect is indicted, the court then has the jurisdiction to order his detention pending trial.62 Similar to the law in Israel, in order to justify the extended detention of a suspect or defendant, the authorities must present the judge with the evidence gathered to support the suspicion and identify specific cause that specifically requires the detention. Lt.-Col. (res.) Maurice Hirsch 97 Administrative Detention in Judea and Samaria The OSP also codifies and regulates the use of administrative detention in Judea and Samaria. Similar to its Israeli counterpart, administrative detention in Judea and Samaria has its foundation in Article 78 of the Fourth Geneva Convention. In Judea and Samaria, the jurisdiction to issue an administrative detention order rests with a specifically appointed military commander, who is authorized to issue an order for a period of up to six months.63 The order can be extended for additional periods of up to six months.64 Similar to Israel, prior to issuing the order, the military commander must be convinced that imperative reasons of security of the area and public security require the detention of the subject of the order. All the formal and substantive requirements, including the nature of the danger posed and the absence of alternatives, that apply to administrative detention in Israel, as noted above, also apply to administrative detention in Judea and Samaria. Cumulatively, the provisions in the Order regarding Security Provisions (OSP) regarding administrative detention substantially surpass the minimum requirements for administrative detention set out in Article 78. While Article 78 does not require automatic judicial review of an administrative-detention order, the OSP does.65 While Article 78 does not require an appeals process, the OSP gives the subject of the order an automatic right to appeal the decision made in the initial judicial review.66 In addition to the provisions of the OSP, long-standing Israeli practice is to allow administrative Israel Under Fire 98 detainees to further challenge the orders by petitioning the Israeli Supreme Court. In practice, as a preventive measure, hundreds of people in Judea and Samaria have been arrested and held in administrative detention since the October 7 massacre. Prosecution in Judea and Samaria The OSP also defines the central terror offenses, ranging from incitement to terror,67 throwing rocks,68 kidnapping,69 illegal possession of weapons,70 heading a terror organization,71 to murder.72 The 1945 British Mandate Defence Regulations,73 still applicable in Judea and Samaria, add the prohibition about being a member of a terror organization74 and the prohibition to throw incendiary objects.75 Punishment In light of the unique (sui generis) nature of the massacre on October 7, 2023, the depth and extent of its cruelty and brutality, as well as the genocidal motivation that drove those who planned and carried it out, the question of the appropriate punishment for a terrorist who planned and/or participated in the massacre is in itself unique and complex, involving both questions of morality as well as law. These considerations would include the fundamental question of the suitability or unsuitability of the death penalty. As a general rule, capital punishment for the crime of murder was abolished in Israel in 1954. While some argue that the basis for that decision included Lt.-Col. (res.) Maurice Hirsch 99 humanitarian, liberal, and progressive views of penology, the decision was also influenced by a form of national trauma combined with considerations of Jewish law. In its history, Israel has only implemented the death penalty on two occasions: in the case of Nazi Adolf Eichmann and in the case of Meir Tobianski. The latter is a source of Israeli national trauma. Tobianski was an officer in the Israeli army during the War of Independence. After being accused of espionage, he was prosecuted in a court martial and found guilty. After his execution by firing squad, he was later posthumously exonerated. Fear of the fallibility of any legal system and the possibility of executing an innocent man has accompanied any discussion on capital punishment in Israel since the exoneration of Tobianski. Jewish law, which also takes a stringent approach to capital punishment, has also been and remains a constant consideration. In Jewish law, only a properly constituted Sanhedrin (Jewish court) has the authority to pronounce the death sentence on a Jew.76 Since the civilian courts that operate in Israel are not considered to be a Sanhedrin and do not operate in accordance with the prescribed Jewish laws of evidence, traditionally the ultra-Orthodox parties in the Knesset have blocked any attempt to revive the use of capital punishment out of fear that it may be imposed on a Jew. There are, however, a number of offenses in the already- existing law that provide for capital punishment. For example, some of the offenses included in Chapter 7 of the Criminal Law, specifically that of providing Assistance to the Enemy in War, do carry the death sentence on condition77 that the offense was committed while armed hostilities were carried out by or against Israel. Thus, the question, in its essence, is not whether it is or is Israel Under Fire 100 not legal to impose the death sentence, but whether Israel sees itself as a country that views capital punishment as an option in general, and in relation to the terrorists who participated in the October 7 massacre in particular. This is one of the central questions presently being considered by the Israeli authorities and legislators. While Israel’s leadership has been reluctant to change its stance on the death penalty, most of the Israeli public does support imposing the death sentence on terrorists. In a survey conducted78 after the October 7 massacre, 68% supported the notion of imposing the death sentence on the Gazan terrorists while 10% opposed it. In this context, given the fact that the death sentence is already an option within existing Israeli law, and considering the broad public support for imposing it on these terrorists, it would appear likely that the law being prepared for the prosecution of the terrorists will include a provision for the death sentence. The small minority who fundamentally object to the death penalty will no doubt argue that in imposing it Israel is acting against the general consensus and trend of restricting and even abolishing it. The majority, however, will no doubt support the general notion, leaving the question of individual implementation as an ad hoc assessment based on the actions of the specific terrorist and the decision of the judges. Individual implementation will, of course, be the key issue. In principle, it would appear that there are potentially hundreds of terrorists who directly participated in the murder, rape, torture, kidnapping, arson, and other offenses carried out in the October 7 massacre. While international opinion may have been able to digest the death penalty being imposed and carried out on a handful Lt.-Col. (res.) Maurice Hirsch 101 of terrorists, the double standard generally applied to Israel by the international community would most likely result in widespread criticism and condemnation if Israel were to hand down and carry out the death sentence on hundreds of terrorists. The punitive alternative to the death sentence would be life imprisonment. Despite the fact that thousands of Palestinians have been convicted of murder and sentenced to life in prison, immediately prior to October 7 there were approximately only 580 terrorists in Israeli prisons who were serving life sentences. The reason is that there have been more than 40 different instances in which Israel has released tens of thousands of terrorists, including brutal murderers. On some occasions the release was the product of Israeli-Palestinian negotiations,79 some were just goodwill gestures, and others were the product of terrorists kidnapping Israelis to use them as bargaining chips.80 As a general rule, the terrorists are not deterred by life in prison but celebrate it as a mark of their commitment to their struggle, and those released often quickly return to terror.81 Holding hundreds, possibly thousands, of additional terrorists in prison to serve life sentences would no doubt heighten the motivation of the terrorists to continue kidnapping Israelis as a means to free their comrades. While similar motivations would potentially exist during the period between the imposition of the death sentence and carrying it out, the timeline would at worst be limited in scope. While intuitively any decent society would demand the full punishment of the planners and participants in the October 7 massacre, in the current context there could be a substantial complicating factor. As noted above, as part of the massacre, the Gazan terrorists took 253 people hostage.82 While some of Israel Under Fire 102 them were released, as of May 28, 2024, 125 hostages remained in captivity. The new hostages joined four Israelis—dead and alive—who have been held hostage by the terrorists since 2014–15. In return for releasing the Israeli hostages, at present the terrorists demand the release of all the Palestinian terrorists being held by Israel, including those arrested before and since October 7. While this option would seem to be outrageous, the terrorists understand that the hostages are Israel’s weak underbelly. The terrorists are bolstered by the demonstrations of some of the families of the hostages and the pressure being applied on Israel by the U.S. administration to capitulate and release terrorists as a means to free any number of the hostages. As part of the negotiations to free the hostages, it has also been suggested that some of the terrorists would not be able to return to Gaza or Judea and Samaria and would have to leave the areas for prescribed periods or indefinitely. These suggestions are based on previous practice, among others in the 1985 Jibril deal, the 2011 Shalit deal, and even the 2002 standoff with the Palestinian terrorists who invaded the Church of the Nativity in Bethlehem. Such a solution would of course be seen as a huge victory for the terrorists and a reward for carrying out the massacre. Punishment in Judea and Samaria Similar to Israel, the law in Judea and Samaria includes some offenses for which the prescribed penalty is potentially the death sentence. In practice, the directives of the Military Prosecution prohibit a prosecutor from requesting the Lt.-Col. (res.) Maurice Hirsch 103 death sentence unless prior permission had been received. In addition, the OSP stipulates a number of prerequisites for handing down the death sentence, including that it can only be ordered after a conviction following a full evidentiary trial83 and that the sentence must be decided upon unanimously by all three judges of the panel.84 While there have been a number of cases in which individual prosecutors asked for the death sentence to be imposed and in which individual judges have ordered the death sentence, in practice no such final decision has been made. In most cases, however, the terrorists in Judea and Samaria are convicted for offenses that are only subject to prison sentences.85 Afterword The October 7 massacre was the worst attack on the Jewish people since the Holocaust. It resulted in a war not only with the terrorists in the Gaza Strip, but also fighting with Hizbullah in Lebanon, attacks on Israel and international shipping by the Houthis in Yemen, and a missile-and-drone attack from Iran pointing to the danger of an overall war with Iran, which is the major source of incitement, encouragement, and support of the terrorism being perpetrated against Israel and unprecedented international lawfare. Despite the heinous nature of the Hamas attack, it is important to Israel to maintain its position among the liberal democracies of the West, fighting terror within the framework of the law as well as the international humanitarian norms and principles, even while our enemies intentionally and openly breach such law, norms, and principles or distort them to attack Israel Under Fire 104 the true victims of the massacre. This is Israel’s tradition. This is Israel’s commitment. Israel acts as it does, not to find favor in the eyes of its friends or even its enemies, but to safeguard and maintain its own national soul. Similar to the punishment that most Israelis would have imposed on Nazis, most of the Israeli public would support imposing and implementing the death sentence on most, if not all, of the terrorists who planned and participated in the October 7 massacre. The death sentence for these terrorists would be the only moral punishment for people who committed such heinous genocidal acts. Notes 1. Number of Israeli hostages, alive and dead, held in Gaza, as of May 28, 2024. 2. For more comprehensive details of the massacre, see (among others): https://govextra.gov.il/mda/october-7/october-7/ what-happened-on-the-7th-of-october/; https://www.hamas- massacre.net/; https://oct7map.com/; https://www.october7.org/; https://t.me/hamasdid; https://www.memri.org/reports/special- announcement-%E2%80%93-hamas-atrocities-documentation- center-hadc. 3. According to IDF statistics published on April 6, 2024 (https:// www.idf.il/en/mini-sites/idf-press-releases-regarding-the- hamas-israel-war/april-24-press-releases/war-against-hamas-6- months-operational-update/eliminations-and-interrogations-of- terrorists/), more than 12,000 terrorists had been killed by Israeli forces since the beginning of the war. 4. According to IDF statistics published on April 6, 2024 (ibid.), approximately 4,600 people had been detained in Gaza and interrogated by IDF Unit 504 since the beginning of the war. Many of those interrogated have been identified as terrorists and some took part in the October 7 massacre. 5. Pursuant to the principle of uti possidetis juris, when Israel declared Lt.-Col. (res.) Maurice Hirsch 105 its independence, it should have inherited the borders previously set by the League of Nations Mandate for Palestine. Accordingly, the geographic area of the nascent state should have included not only the area that is undisputedly considered to be Israel, but also the Gaza Strip and Judea, Samaria, and all of Jerusalem. However, since the Arab countries rejected Israel’s right to exist, five Arab armies immediately invaded the nascent state with the declared goal of destroying it. While Israel managed to repel most of the aggression, the Gaza Strip was occupied by Egypt and Judea, Samaria, and east Jerusalem were occupied by Jordan. The lines separating Israel from the territories held by Egypt and Jordan were defined on a practical basis in the 1948–49 Armistice Agreements, never to be regarded as “borders.” In the absence of clear borders, pursuant to paragraph 1 of Areas of Jurisdiction and Powers Ordinance, 5708-1948, Israel applied its law to the territories in an order of the defense minister. That area delineated Israel’s territory according to the lines drawn for the purpose of the Armistice Agreements. In 1967, pursuant to the amended paragraph 11b of the Law and Administration Ordinance, 5708-1948, Israel expanded the application of its law to include the area of Greater Jerusalem. In contrast, Israel did not apply its law to the areas of the Gaza Strip, Judea, or Samaria. 6. The use of preventive detention in the fight against terror is not unique to Israel but, rather, common practice. While a thorough discussion of the practice is beyond the scope of this chapter, a substantial Israel-centric and comparative discourse can be found in these articles: Stephanie Blum, “Preventive Detention in the War on Terror: A Comparison of How the United States, Britain, and Israel Detain and Incapacitate Terrorist Suspects,” Homeland Security Affairs 4 (October 2008), https://www.hsaj.org/articles/114; Dvir Saar and Ben Wahlaus, “Preventive Detention for National Security Purposes in Israel,” 9 Journal of National Security Law & Policy 413 (2018), available at SSRN: https://ssrn.com/abstract=3270294. 7. The law provides for both arrest pursuant to an arrest warrant issued by a judge (para. 12) and spontaneous arrest, in certain circumstances, by a policeman (para. 23). 8. Para. 12. 9. Para. 13. 10. Para. 17. 11. Para. 59. Israel Under Fire 106 12. Para. 62. Theoretically, there is no time limit on the jurisdiction of the Supreme Court to extend the detention of the suspects until they are indicted. 13. One such example is paragraph 125 of the Criminal Law, 5737-1977. 14. The specific offenses are stipulated in paragraph 125. 15. https://rotter.net/forum/scoops1/819358.shtml. 16. Other countries that employ similar methods also refer to the measure as “preventive detention.” 17. Para. 2. 18. Para. 2(a). 19. Para. 2(b). 20. Para 4. 21. Admin. Det. Appeal 4/96 Ginzberg v. Minister of Defense 50(3) PD 221, 223 (1996). 22. Admin. Det. Appeal 2/82 Lerner v. Minister of Defense 42(3) PD 529, 531 (1982). 23. In limited circumstances, some terrorists suspected of committing a crime are held in administrative detention to avoid exposing intelligence sources. In these cases, according to case law, administrative detention is not an alternative for punishing the suspect for the offense he potentially committed, but remains a preventive measure to neutralize the danger the person poses. 24. Arrests carried out in warlike situations pose substantial difficulties. After regular arrests, law-enforcement officers fill out extensive documentation regarding the circumstances of the arrest, and start constructing the “chain of evidence” regarding objects seized. In warlike situations, the soldiers carrying out the arrests are required to continue their combat functions and cannot be expected to spend hours filling out forms. 25. Also known as the Laws of War. IHL incorporates the laws of armed conflict and is distinguished from international human rights law, which is applicable to regular situations within a state’s national legal system. 26. As opposed to the provisions of the Geneva Conventions of 1949, which generally enjoy the status of customary international law, only some of the provisions of the Additional Protocols have Lt.-Col. (res.) Maurice Hirsch 107 achieved that status. Determining which exact provisions of the Additional Protocols have become customary international law requires individual analysis. 27. https://lieber.westpoint.edu/civilians-reporting-cell-phones- direct-participation-hostilities/. 28. The law was discussed extensively by the Israeli Supreme Court in Crim.A 6659/06 Anonymous v. State of Israel, 62(4) PD 329. The court’s decision, translated into English, is available here: https://supremedecisions.court.gov.il/ Home/Download?path=EnglishVerdicts/06/590/066/ n04&fileName=06066590_n04.txt&type=4. 29. In the context of the war on terror, these terrorists are also often referred to as non-state actors (NSAs). 30. Military Justice Regulations (Alignment of the law with the Convention on the Treatment of Prisoners of War), 5726-1966. 31. Article 4. 32. While section 43 the Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts, relaxed some of the criteria for enemy combatants to be recognized as prisoners of war, the requirement that the combatant be “under a command responsible to that Party for the conduct of its subordinates,” and that the enemy fighting units or groups be “subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict,” still remain. The terrorist groups operating in Gaza do not meet even these relaxed criteria. 33. A comprehensive discussion of the prosecution of the participants in the massacre would require not only pointing to potentially relevant offenses but also considering subjects that include the rules of being party to an offense and different subjects relating to the rules of evidence. Both of these topics raise substantial questions about the massacre and would warrant their own paper. 34. While Israel had a military court in which some terrorists were prosecuted, it closed in the late 1990s. While this court also bore the name “Military Court,” the basis for its constitution, function, and laws applied were different from the military courts Israel operated in Judea and Samaria. Israel Under Fire 108 35. Para. 300. 36. Para. 345. 37. Para. 448. 38. Paras. 369, 370, 371, 372, 374. 39. State Security, Foreign Relations and Official Secrets. 40. Para. 97: (a) If a person commits an act liable to impair the sovereignty of the State with the intention to impair that sovereignty, then he is liable to the death penalty or to life imprisonment. (b) If a person commits an act liable to remove any area from the sovereignty of the State or to place it under the sovereignty of a foreign state with the intention to bring that about, then he is liable to the death penalty or to life imprisonment. 41. Para. 98: If a person, with intent to bring about military action against Israel, commits an act liable to result in such action, then he is liable to fifteen years imprisonment; if his intention was to assist the enemy, then he is liable to the death penalty or to life imprisonment. 42. Para. 99: (a) If a person, with intent to assist an enemy at war against Israel, commits an act that is liable to do so, then he is liable to the death penalty or to life imprisonment. (b) For purposes of this section, “assistance” includes the provision of information with the intention that it fall into the enemy’s hands, or in the knowledge that it will reach the enemy, and it is immaterial that war was not in progress when the information was provided. 43. For example, even an arch-terrorist such as Abbas al-Sayed, responsible for multiple suicide bombings including the attack on the Park Hotel in Netanya in 2002 in which 29 people were murdered, was prosecuted on multiple counts of murder. 44. Nazis such as Adolf Eichmann and John Demjanjuk were prosecuted using the Nazis and Nazi Collaborators (Punishment) Law, 5710- 1950. 45. https://avalon.law.yale.edu/20th_century/hamas.asp. 46. Article 7. Lt.-Col. (res.) Maurice Hirsch 109 47. Article 11. 48. Article 7. 49. Article 15. 50. https://www.un.org/en/genocideprevention/documents/atrocity- crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20 Punishment%20of%20the%20Crime%20of%20Genocide.pdf. 51. https://www.ynet.co.il/news/article/b1m3llosa. 52. According to IDF statistics published on April 6, 2024 (https:// www.idf.il/en/mini-sites/idf-press-releases-regarding-the- hamas-israel-war/april-24-press-releases/war-against-hamas-6- months-operational-update/eliminations-and-interrogations-of- terrorists/), 420 terrorists had been killed in Judea and Samaria since the beginning of the war on October 7, 2023. 53. According to IDF statistics published on April 6, 2024 (https:// www.idf.il/en/mini-sites/idf-press-releases-regarding-the-hamas- israel-war/april-24-press-releases/war-against-hamas-6-months- operational-update/the-central-command/), 3,700 terrorists had been arrested in Judea and Samaria. 54. The Ottoman Empire ruled the area from 1517 to 1917. 55. Great Britain ruled the area pursuant to the 1922 League of Nations Mandate for Palestine from 1922 to 1948. 56. The Hashemite Kingdom of Jordan ruled the area from 1948 to 1967. 57. https://www.idf.il/media/30zd1w0v/%D7%90%D7%95%D7%92%D 7%93%D7%9F-%D7%94%D7%97%D7%A7%D7%99%D7%A7%D7%94- %D7%94%D7%A4%D7%9C%D7%99%D7%9C%D7%99%D7%AA- %D7%9E%D7%94%D7%93%D7%95%D7%A8%D7%94-%D7%97%D7 %9E%D7%99%D7%A9%D7%99%D7%AA_compressed.pdf. 58. Para. 31. 59. Para. 31(a). 60. This provision was originally developed in 2002 as part of Operation Defensive Shield. It was discussed extensively in the Israeli Supreme Court in HCJ 3239/02 Marab et. Al v. the IDF Commander for the West Bank 57(2) PD, 349. For the decision of the Supreme Court, in English, see: https://supremedecisions. court.gov.il/Home/Download?path=EnglishVerdicts/02/390/032/ A04&fileName=02032390_a04.txt&type=4. Israel Under Fire 110 61. Para. 33. 62. Para. 43. 63. Para. 285(a). 64. Para. 285(b). 65. Para. 287(a). 66. Para. 288. 67. Para. 251. 68. Para. 212. 69. Para. 213. 70. Para. 230. 71. Para. 237A. 72. Para. 209. 73. https://www.idf.il/media/30zd1w0v/%D7%90%D7%95%D7%92%D 7%93%D7%9F-%D7%94%D7%97%D7%A7%D7%99%D7%A7%D7%94- %D7%94%D7%A4%D7%9C%D7%99%D7%9C%D7%99%D7%AA- %D7%9E%D7%94%D7%93%D7%95%D7%A8%D7%94-%D7%97%D7 %9E%D7%99%D7%A9%D7%99%D7%AA_compressed.pdf. 74. Regulation 84. 75. Regulation 58, predominantly used as the basis for indicting defendants for throwing Molotov cocktails. 76. While there are many distinctions in Jewish law between Jews and gentiles, the Halachic authorities have traditionally held that there should be no distinction between the two groups in our times as regards the death penalty. 77. Per para. 96 of the Criminal Law. 78. https://www.runi.ac.il/research-institutes/government/libres/ research/death_sentence/. 79. Such as the Oslo process during which thousands of terrorists, including murderers, were released. 80. Yahya Sinwar, the head of Hamas in Gaza and the one personally responsible for the October 7 massacre, was himself released in the 2011 deal to free IDF soldier Gilad Shalit, who was kidnapped in June 2006 and held hostage until October 2011. Lt.-Col. (res.) Maurice Hirsch 111 81. During my service in the IDF Military Prosecution for Judea and Samaria, I dealt with scores of cases of terrorists who had been released and quickly returned to terror. For example, of the 120 terrorists released to Judea and Samaria as part of the first stage (the murderers) of the deal to release IDF soldier Gilad Shalit, more than 50% committed additional terrorist offenses within two and a half years, and were rearrested to serve the remainder of their original sentences. 82. https://www.bringthemhome-diy.com/. 83. Para. 121. 84. Para. 165. 85. For some of the considerations regarding punishment for terror offenses, focusing on a change in the punishment policy, see: https://jcpa.org/article/to-defeat-terror-lenient-sentences-for- terrorists-must-end/.