Over the past six months, thousands of terrorists from Gaza have been detained, and Israel still doesn’t know what to do with them.
That was the running theme at the College of Management Academic Studies conference in Rishon LeZion on Sunday night, where speakers debated what the next best step for this issue is.
A record number of Palestinians have been held in indefinite detention for unlawful combatants as well as in administrative detention. A spokesman for the Justice Ministry said the government is no closer now to a decision on what to do with them.
This seems bizarre, considering the IDF achieved operational control of northern Gaza in early January, of Khan Yunis in early February, and just now withdrew the vast majority of its troops, concluding active invasion operations.
If, at the start of the war, the answer was that the ministry was overwhelmed by the influx, that no longer holds water.
Maj.-Gen. (ret.) Menachem Finkelstein, the former district judge and IDF chief lawyer, explained the possibility that some of those detained for the October 7 massacre may be exchanged for Israeli hostages in a deal with Hamas.
On the flip side, he suggested that the death penalty could be used both as a matter of justice for a truly heinous series of crimes and to place additional time pressure on Hamas.
To date, in Israel, only Adolf Eichmann was given capital punishment since courts and governments opted not to use it as a matter of policy, which is consistent with policies in most Western democracies. However, there is no legal bar to capital punishment in Israel.
Former IDF chief public defender Col. (res.) Ran Cohen-Rochverger noted that 30 Gazans have died in Israeli Prisons Service (IPS) custody. It is one thing to hold a trial with due process and for judges to render a verdict of capital punishment after a careful and dispassionate assessment of the evidence; it is quite another for detainees to die without any particularly good reason while in detention.
Finkelstein also pointed out that IDF bases such as Sdei Teiman are holding thousands of people in makeshift prison areas. He said that prior court rulings – and a commission he headed on the Gilboa Prison Affair – confirmed that, notwithstanding all of the problems with the IPS, IDF detention is viewed as even worse and less professional.
Cohen-Rochberger said it was problematic that Israel now had far more administrative detainees than during the Second Intifada, and possibly more than at any time in its history, with no path forward.
Multiple other speakers said that current Israeli policies, if not updated or adjusted, could further undermine its already-thin global legitimacy.
Best bet for trying suspects is normal trials
AND YET, what to do with the detainees is not a simple question, said Finkelstein. He noted that if the Knesset passes a special war crimes statute to create an ad hoc court to deal with this issue, it would be problematic to use retroactive crimes in the criminal arena, which would again cost Israel in the realm of international legitimacy.
According to Finkelstein, the best bets are either civilian court trials, with some special provisions, or military court trials, which is how Israel deals with West Bank Palestinian terrorists.
Each of these carries its own issues, but overall, Finkelstein endorsed holding them under the unlawful combatants law, while other panelists said the law had been attacked in the past by the High Court of Justice and, therefore, should not be overused.
Dr. Idit Shafran Gittleman of the Institute for National Security Studies said that the problematic detention conditions could harm future trials.
Gittleman also opposed rolling out capital punishment, saying it would put Israel on a dark path in terms of its values as a country and would be potentially irreversible.
Dr. Moshe Becher, a former top Shin Bet legal official, warned that detainees may have been exposed to more extreme enhanced interrogation than even Israel’s relatively aggressive law allows and that this could also harm future trials.
Problems with evidence
Speakers at the conference and government officials have acknowledged that there are also inherent problems with the evidence. So many people were killed and taken hostage that there are very few witnesses to identify exactly who murdered which victims.
Beyond that, many of the bodies and “crime scenes” were not maintained according to standard criminal rules because the area was under invasion and then rocket attacks.
Some scholars have suggested that a large number of the October 7 detainees could possibly be accused of conspiracy to commit murder or other felonies, but not murder itself, which could mean a much shorter jail sentence.
There has also been loud opposition from the Religious Zionist Party and Otzma Yehudit to being lenient.