by Yoni Rotenberg, Besheva weekly contributor, translated by Hillel Fendel.
What is needed now is another Eichmann trial – one that will cement in our national consciousness, and that of the world, the ruthlessness of the Hamas massacre of 2023 and the gravity of its memory.
Here, he detailed the historic ramifications of that complex and famous trial: "For one thing, we no longer need to justify ourselves before our own people as to why we survived. We had always been constantly asked, 'Why did you not resist? Why did you go like sheep to the slaughter?' This trial has now shed light on these strange questions. If the trial had achieved only that, it would be enough.
"But it also planted within us the faith that behold, as the Psalmist writes, 'the G-d of vengeance has appeared and the Judge of the earth has arisen' to exact justice on all those murderers of our people who still walk free. And further, all our enemies now know that Jewish blood is not cheap and that vengeance will come. Your name will be borne aloft in our national history as one who raised our honor among the nations, and for that may you be blessed."
These words echoed in my mind as I watched the Knesset Law Committee last week discuss putting on trial the Nukhba terrorists imprisoned in Israel – those who took part in the Oct. 7th massacre. Opposition MK Yulia Malinovsky, who is co-sponsoring, together with coalition MK Simcha Rotman, the proposed bill to put them on trial, seemed to be similarly inspired in her words to the Committee members: "Before our eyes stands the goal of setting an international narrative. This is a legal matter, and the professionals will do the hard and important work of managing the investigations. But as legislators, our eyes must be peeled to what this will mean for future generations. Fifty years from now, they will look back at us and our actions just as we look back at the Eichmann trial."
Of course, the State of Israel is now in a very different place, in terms of our international image, than it was in 1961. Less than two decades after the Holocaust and our six million losses, the world received with admiration every act of justice and vengeance that we decided upon. Now, the situation is basically the opposite, and arrows of criticism and hatred are shot at us from every corner. As British anti-Islam campaigner Tommy Robinson has put it: "Denial of the Shoah began [long] afterwards, while denial of the Gaza slaughter began the day afterwards." This reality has great ramifications on the legal-judicial construction of the prosecution's case, and on its diplomatic aspects.
The Law Committee's session dealt primarily with two matters: the specific charges on which to charge the cruel Hamas brutes, and the tribunal that would try them. These discussions are now being held openly for the first time in more than two years (preparing the evidence and writing up the material has been ongoing behind the scenes) because Hamas can no longer threaten to harm our hostages.
The manner in which the discussion or debate was held, it must be noted, was impressive. For one thing, it was clear that Melinovsky and Rotman, who spent many hours preparing the bill, and will yet spend many more, are leaving politics aside as they seek the best possible outcome for the State of Israel. Melinovsky, who ran the session, emphasized that this is how the entire issue must be approached, and in fact, representatives of groups on both the left and right sat together and argued and discussed respectfully the various issues. They asked and answered, listened and clarified, wrote comments and submitted materials, all for the common goal.
What is the ultimate objective? All the participants were in agreement: the death penalty for the Nukhba terrorists. How to do this, however, is not a simple matter. There are various issues that must be dealt with. Let us try to review them in brief.
The first is that of the specific court that will try the terrorists. This is clearly a decision that must be taken with an eye to history. A special court, with all the proper trappings, and a prosecutor and a bench of judges worthy of the occasion, can well serve the purpose of setting the historic narrative. It will be considered a totally unique event in the national and universal memory, and will place Israel in a positive light. In addition, Israel can certainly not afford, in light of the terrible backlog and delays that plague our judicial system, to treat the hundreds of incarcerated Nukhbot the same way as it does other accused criminals.
However, there is also a grave problem inherent in setting up a special court just for the Nukhbot. Such a court will create, in international opinion, the sense of a rigged trial, and will not concretize the truth and gravity of the Hamas massacre of 1,200 Jews in October 2023. Both Dr. Haggai Vinitzky and Prof. Amichai Cohen – respected judicial figures on Israel's right and left, respectively – agreed that changing the rules retroactively is a bad way to foster trust and confidence in the process.
The Lod Military Court
Vinitzky had an original idea that could solve the problem. He said that in the central-Israel city of Lod exists a military court that was responsible in the past for trying terrorists not from the areas run by the military administration in Judea and Samaria. An example is Kozo Akamoto, the Japanese terrorist who led the Israeli airport murder of 26 Jews and Christians in 1972. Though the court is not active now, its formal validation is still in effect – and employing it for this occasion will ensure that the trial is not considered an on-the-fly operation.
The other question is: What offenses will the Nukhbot and their accomplices in charging murderously into Israel be charged with? This, too, is not a simple matter at all. All agree that to charge each individual with specific crimes of murder, rape, and the like is a mission impossible. Southern Israel on that black day was not a crime scene, but a war scene. Forensic evidence of the type generally collected after a murder was not exactly available at the time, or since then, nor were autopsies carried out, for obvious reasons. And of course, many witnesses to the crimes were murdered themselves and cannot share what they saw.
Rather, a more comprehensive approach is needed, one that will correctly depict the mass-scale invasion and attack on defenseless Israeli citizens in their homes or at the Nova festival.
The question, then, is to determine the precise crimes that they will be charged with. One option is to use Israel's 1950 "Nazis and Nazi Collaborators Justice Law." However, this would require the building of a detailed legal case proving that the crimes are included in that law. On the other hand, "crimes against humanity" and "war crimes" are not found in the Israeli legal code. To adopt these laws at this point would not be a smart move, as Israel itself is facing similar charges in The Hague, whose right to do so Israel does not recognize. For us to then use these clauses would fuel our enemies' drive to prosecute us, nationally and individually, on the very charges that Israel did not recognize previously.
Genocide, Perhaps?
Not everyone agreed that this is a game-stopper. Maurice Hirsch, former Director of the Military Prosecution in Judea and Samaria, for example, said that a strong case that the Hamas terrorists were engaged in genocide can be made based on Hamas documents captured in Gaza and the clear wording of the Hamas charter.
However, Prof. Amichai Cohen made the point that international laws against genocide were formulated after the Shoah, and that Israel has long sought to limit the definition of genocide in order not to trivialize the Holocaust. Were Israel to now change course and term even the attempt to murder "just" a few thousand people as genocide, it would pull the carpet out from under its long-held position. This is certainly a point worthy of consideration.
Another legal obstacle is that the leaders and masterminds of the Simchat Torah massacre are, of course, no longer alive. This means that only the middle-level terrorist operatives will have to pay the price. This is not an insurmountable problem, but one that must be placed on the table.
Significant work remains to be done on this bill, though MK Malinovsky declared that she will not allow the matter to be delayed, as time is of the essence. In general, the points having to do with how the world will view our proceedings are important, but must be placed in their proper proportions. Over the past two year’s we have learned on our own flesh that the arena of international law is mainly a political one, and that claims and counter-claims are raised according to political – or, often when it comes to Israel, anti-Semitic – interests.
The emphasis, then, on the debate over this bill must be two-fold: 1) ensuring that the victims' families, and Israel in general, witness true justice being done, and 2) setting the internal Israeli narrative (as my grandfather wrote regarding the post-Shoah atmosphere in Israel). We must take the international view into consideration, but only to a certain extent.
Making this trial into an important national event that will engrave in our consciousness for generations the story of the terrible massacre, the heroism of the survivors and warriors, and the importance of ensuring that we do all we can to prevent its recurrence – is the charge of the hour.