Israel is considering the possibility of trying Hamas members in a special court

Watchtowers and fortifications at the entrance to the Israeli Gilboa prison (Al Jazeera - archive)

Israel is considering the possibility of waiving criminal trials against hundreds of members of the Islamic Resistance Movement (Hamas) who were captured on October 7 (Operation Al-Aqsa Flood) and in the Israeli ground war on the Gaza Strip, and trying them with speedy procedures based on documentation of their police investigations, with Keeping them under administrative detention and detention “because they are illegal combatants,” according to what was revealed by the Israeli newspaper Haaretz.

According to the proposal - under consideration - the law on imprisonment of “unlawful combatants” will be amended in a way that allows for the establishment of a special court, civil or military, which will try combatants mainly on the basis of written documents, without the necessity of hearing evidence in court as is customary in criminal law. However, sources in the Ministry of Justice told Haaretz that the preferred option is to conduct criminal trials against Hamas members.

The arrest and interrogation of fighters has led to major dilemmas that Israel has not faced in the past. The dilemma exacerbated by all of these matters is how they should judge hundreds of Hamas members, and under what sections they should try them.

According to the Israeli newspaper, the decision will ultimately be made in consultation between the political level and the legal advisory body, and this will likely be affected - also - by the deal to release detainees held by Hamas that is being discussed these days, especially if the Israeli government releases Hamas members, as part of the deal agreement.

Israel's Unlawful Combatants Law, passed in 2002, allows the Tel Aviv government to detain combatants who have acted in violation of the international laws of war for a long period of time, without granting them the rights of prisoners of war or detainees in the occupied territories.

The legislative procedures for the law began after the Supreme Court ruled in April 2000 that the Israeli government was unable to add and detain the two Lebanese prisoners Mustafa Dirani and Abdel Karim Obaid, who were kidnapped by an Israeli army patrol into Israel.

Fears that the proposal to try Hamas members will affect the upcoming exchange deal (Al Jazeera - Archive)

Proposal details

According to the proposal being considered by the Israeli government, the law on imprisonment of illegal combatants would be amended in a way that would make it possible to establish a special, possibly military, court that would conduct a rapid investigation into the case of illegal combatants, and “the procedure would depend mainly on the investigation materials and documents collected by the police and the Shin Bet.” Those responsible for investigating the fighters.

In this context, the court will decide whether it deems it necessary to summon specific witnesses and listen to them, while the combatants have the right to appear before it once before deciding their case.

The court will be asked - according to the proposal - to determine whether the combatants were involved in serious war crimes that would be defined by law, including “a war crime that includes mass murder.” If a judge is convinced that combatants have committed serious war crimes, he can order the unlawful combatants to be imprisoned indefinitely.

According to an assessment submitted to the Public Prosecutor's Office, such a procedure could be completed within a few months, unlike a normal criminal legal procedure which can last for years.

Sources at the Ministry of Justice say the proposal has more advantages than submitting the fighters to regular criminal proceedings in the proposal, and the submitted assessment explains in detail the advantages of this move, including the fact that in ordinary criminal law, the case must include a detailed indictment that will stand up to domestic and international scrutiny. Evidence difficulties may arise. Among other things, it will be difficult to prove acts of rape due to the lack of sufficient documentation of the sexual assaults that occurred, according to the Israeli claim.

The proposal may also help resolve the issue of representation - when it is clear that it will be difficult to find lawyers who agree to represent fighters - and it is possible that fighters may not be represented at all.

According to the proposal, avoiding ordinary criminal procedure will reduce the burden on the police and the Israeli security apparatus, and will reduce the security risks that will arise. Due to the need to transport and secure hundreds of defendants to numerous court hearings.

Allowing the defendants the status of illegal combatants - according to the proposal - may also save what the Israeli newspaper calls the “victims” the hardship and suffering of the rabbi, who must testify in court and withstand difficult interrogations.

In addition to the idea that was proposed, the Israeli Ministry of Justice and the Israeli Attorney General's Office recently discussed the need to establish a dedicated department that includes dozens of lawyers to manage criminal cases against Hamas members, and allocate specific standards for this purpose.

In this aspect as well, the path of illegal fighters - according to the proposal presented by the newspaper - will make it possible to avoid ordinary criminal procedures, and will save a lot of personnel and resources.

Despite this, the Ministry of Justice prefers to conduct criminal trials against Hamas members, which will include the transfer of investigation materials to the accused, their representation by a defense lawyer, and testimony from victims, including children, whose testimony will be taken from mental health professionals, who will be trained in this.

An Israeli demonstration to demand the release of Israeli prisoners in Gaza (Al Jazeera)

The flaw of the proposal

But the main flaw in the proposal - according to the Israeli newspaper - is the risk of criticism arising in Israel and in various parts of the world. Because Israel imprisoned fighters without conducting a proper and acceptable legal process to ascertain guilt.

In addition, the proposal is inconsistent with Israel's interest in maintaining uniform legal procedures, as it claims to be a democratic state of law that takes fair action against every accused.

The choice of this proposal may also affect the ongoing trial against Israel at the International Court of Justice in The Hague.

Haaretz adds that there is another important consideration in favor of bringing Hamas members to a criminal trial with witnesses and evidence, which is Israel’s desire to reveal to the world what it claims were crimes committed on October 7, 2023, and to hold a public hearing for the victims’ testimonies.

This exposure may expand the international legitimacy that will be granted to Israel to continue the war and return the detainees, while choosing the fast track will prevent, or at least reduce, the voice of these testimonies, according to the newspaper.

Source: Al Jazeera + Haaretz