Meting Out National Justice to the Hamas Terrorists

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.

Following the trial of Adolf Eichmann in 1961, my grandfather, Shlomo Yehuda Kirschenbaum, a survivor of the Holocaust, wrote the following to then-Attorney General Gideon Hausner: "I would like to express to you, in the name of my wife and myself, our sincere appreciation of the tremendous work you and your aides invested in this trial. It was conducted on a high international judicial level, based on true justice in the spirit of Judaism. As former concentration camp residents, our wounds have not yet healed, and perhaps never will. But the trial, in all its proceedings, gave us much more than we expected."

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.

Netanyahu and the Submarines: A View From His Side

by Yoni Rotenberg, Besheva, translated by Hillel Fendel.

Every once in a while, ever since it first burst into the public consciousness in 2017, the story of the "purchase of the German submarines" returns to the headlines. The general impression appears to be that, though important security figures always have what to say about it on the news programs – just enough to fill the allotted air-time – the public doesn't really know what all the fuss is about, or what it has to do with our everyday lives. 

But this time, when the rumors and suspicions abruptly became official "warning letters" to Prime Minister Netanyahu and others, it appears that the drapes of apathy have been drawn open. The feeling is that there must be fire under the smoke. 

Let us therefore disperse some of the smoke so that we can see how our leaders, some of whom are still in positions of major influence, behaved regarding the security of the State of Israel. 

The commission of inquiry that sent the letters was decided upon by the short-lived Bennett-Lapid government. Its mandate was to look exclusively into how the decision to purchase the submarines was made; the accusations of bribery against Netanyahu have long been debunked. The most interesting of the five recipients of the warnings are by far Netanyahu and his then-Defense Minister, and now his bitter rival, Moshe Bugi Yaalon. 

If the average citizen of Israel, one who knows even just a bit about the news, would read the warning letter to the Prime Minister and the clauses of which he is "accused," he would probably respond with four words: "Of course, that's Netanyahu!" That is, Netanyahu is described in the letter as acting in his classic style, just as he has throughout his political career, for better or for worse. He is described as having "made decisions bearing great ramifications in a non-regulated manner," as having "come to conclusions… while bypassing the government," and even having "turned the National Security Committee into an executive committee of the Prime Minister." These are all classic Netanyahu! The are just like the "War Cabinet" that he invented during the current war, by which he surrounds himself with those he trusts and keeps others out of the decision-making process. Nothing new here. 

Though we have gotten used to it, it is of course unacceptable. The opinions of Cabinet ministers must be sought and seriously considered, as must be those of professionals in the field. Netanyahu is not justified in believing that only he can be trusted with the security of the State of Israel. However, even though the criticism of his modus-operandi is justified, it must come with an asterisk: When we talk of the "professionals" whom Netanyahu bypassed when he decided to purchase the submarines, we are referring to none other than Israel's security establishment, and primarily the IDF – and there's the rub.

As we have known for many years, and as was empirically proven over the past nine months, the security establishment suffers from dogmatic and narrow thinking, a sense of self-importance, complacency, and too many intrigues and ego-considerations. It is expected of Netanyahu, as the Prime minister, to use his own personal judgement when dealing with this network. (This should also be kept in mind by the anti-Netanyahu protestors who on the one hand marched with giant balloon submarines to protest his independent thinking, yet now demand that he take responsibility for all the mistakes made by the army and security apparatus before and after October 7th!)

It is very hard to disagree with the security establishment. These are not easygoing people, they see their opinions as absolute truth, and have little interest in bowing before the elected leadership. This is evident today as well. This is why Netanyahu built himself the National Security Council – a body that existed before him, but without great influence – as a professional security body that will provide recommendations that do not necessarily conform with those of the army and defense establishment and that are more in line with his own conceptions. Yes, this deviates from the accepted practice of how decisions are made, but it could be that in some cases it is necessary. 

The Two Sides

Let us boil down the dispute between Netanyahu and the establishment so that we can understand what it is about, and not simply reject one side or the other out of hand. In a nutshell, Netanyahu wants to enhance our naval power even if it costs more, and the security establishment feels that this is wasteful and unnecessary. The Prime Minister's position is not surprising at all. He is in general an alarmist-type, and specifically regarding Iran and what he feels is the existential threat it presents for the State of Israel. This, and the need to guarantee Israel's gas reserves, are the two main issues for Netanyahu, and it is only natural that he wishes to ensure that they are budgeted generously. 

The security establishment also recognizes the Iranian threat, of course. It acknowledges that Israel must have submarines that can carry nuclear bombs (according to foreign reports) for second-strike capabilities that form deterrence and a balance of power. However, they feel that a fleet of five such ships, so that one can be on constant alert at any given moment, is sufficient. Netanyahu, however, sees the worst-calamity scenario in which Iran takes out two of the subs and heaves an atomic bomb on Israel. He therefore says, "Let's go not for the minimum, but for the maximum." 

Faced with the official objections, Netanyahu has no choice but to make decisions in a less-than-acceptable manner, and "turn the National Security Council into his own executive branch."

*** Translator's note: The author notes that though there is much more to write regarding this complex issue, he can only elaborate on a few points. Let us sum them up:

1. The operative assumption of the commission is that the security establishment is the epitome of professionalism, and that Netanyahu's deviation from its recommendations actually "harms national security." However, this is not necessarily true, as can be seen from the small example of Netanyahu's desire to privatize the job of maintaining Israel's existing submarines. The idea was scrapped so that there should not appear to be a conflict of interest, but even the "professional" IDF itself did not succeed in carrying out its own plan to privatize the maintenance, and was criticized by the State Comptroller for this back in 2022.
2. Then-Defense Minister Yaalon's version of the events seeks to portray Netanyahu as having been motivated by personal considerations. Keep in mind that ever since Yaalon was fired by Netanyahu in 2016, he has barely missed a chance to bitterly criticize Netanyahu. But in fact, in several ways, his version actually bolsters Netanyahu's case.
3. Netanyahu felt that it was important at the time to augment the navy's submarine fleet, and wished to take advantage of Germany's offer to sell advanced submarines even if they would not be ready for years. Let's consider: If Israel, in the current state of international affairs in which it finds itself, would now try to make the same deal with Germany from scratch, would Germany agree? And if so, what would Biden have said? And even if the deal would pass, what about in a year or two from now, given a possible major war with Lebanon and clashes with Iran – would the West also then be interested in our acquisition of submarines that could aid us in an apparently-nearing nuclear war? When looked at from this angle, Netanyahu's efforts to spend money for German submarines take on a very different color.