![\"Gavel\"](\"https:\/\/www.europesays.com\/iran\/wp-content\/uploads\/2026\/08\/Photo-for-Opinion-1-Margolis.webp\")
Gavel. (Credit: Katrin Bolovtsova\/Pexels)<\/p>\n Gavel. (Credit: Katrin Bolovtsova\/Pexels)<\/p>\n
By Joel M. Margolis<\/p>\n
Israel is preparing a special military tribunal to prosecute an estimated 300 suspects captured during the Hamas-led invasion of Israel on Oct. 7, 2023. Any tribunal defendants convicted of the gravest crimes, including genocide and mass murder, may be subject to capital punishment. Israel has imposed the death penalty only twice, most famously after the 1961 trial and conviction of Nazi official Adolf Eichmann in Jerusalem.<\/p>\n
Israel\u2019s\u00a0military tribunal law<\/a>, called the \u201cProsecution of Participants in the October 7, 2023 Massacre Events Bill,\u201d which went into effect on May 11, has been condemned by pro-Palestinian advocates as a travesty of due process. Their arguments lack merit.<\/p>\n Israel\u2019s tribunal law contains the same basic due process protections found in the U.S. and other democracies. There is a presumption of innocence. The prosecutors bear the burden of proof. Guilt must be proved beyond a reasonable doubt. Each defendant may retain counsel or the court will appoint one. Attorney-client privilege is respected. The defendant may attend the trial, cross-examine witnesses and avoid self-incrimination. There are opportunities for appellate review, including automatic appeals of any death penalty convictions.<\/p>\n This legal framework resembles the major war crime tribunals of the last century. Such tribunals were established in Nuremberg and Tokyo after World War II. Then came the 1993 tribunal in The Hague to prosecute war crimes in the former Yugoslavia and the 1994 tribunal formed in Tanzania after the Rwandan genocide.<\/p>\n Israel\u2019s tribunal guidelines meet the due process standards of the International Criminal Court, which prosecutes certain international crimes.<\/p>\n A review of the main due process challenges to Israel\u2019s tribunal law reveals where they fall short:<\/p>\n Public Trials:\u00a0Israel\u2019s tribunal proceedings will be streamed to the public through a dedicated website. According to the groups the Palestinian Human Rights Organizations Council (PHROC<\/a>),\u00a0Adalah<\/a>\u00a0and\u00a0Justice Info<\/a>, making a spectacle of the proceedings will reduce them to political \u201cshow trials\u201d and thereby undermine the presumption of innocence.<\/p>\n The tribunals in\u00a0Nuremberg<\/a>,\u00a0Tokyo<\/a>,\u00a0The Hague<\/a>,\u00a0Tanzania<\/a>\u00a0and\u00a0Jerusalem<\/a>\u00a0were all open to the public.\u00a0Article 54(f)(1)<\/a>\u00a0of the ICC\u2019s rules also makes trials open to the public. As Americans know, the\u00a0Sixth Amendment<\/a>\u00a0of the United States Constitution guarantees criminal suspects the right to a \u201cpublic trial.\u201d The public role is\u00a0considered<\/a>\u00a0a pillar of democracy because it keeps prosecutors, witnesses and judges accountable.<\/p>\n Joint Indictments:\u00a0Israel\u2019s tribunal rules permit a single indictment to charge multiple defendants. Adalah and the International Bar Association\u2019s Human Rights Institute (IBAHRI<\/a>) say this protocol will create \u201cmass trials\u201d of defendants that suppress individual defendant rights.<\/p>\n The\u00a0Nuremberg<\/a>\u00a0tribunal prosecuted 24 defendants under a single indictment. In the\u00a0Tokyo<\/a>\u00a0tribunal, 28 suspects were prosecuted under one indictment. An indictment in\u00a0The Hague<\/a>\u00a0tribunal covered three suspects. In\u00a0Tanzania<\/a>, four individuals were charged jointly. ICC\u00a0Article 64(5)<\/a>\u00a0expressly permits the joint indictment of suspects.<\/p>\n Joint indictments are standard in the\u00a0United States<\/a>,\u00a0Canada<\/a>,\u00a0the United Kingdom<\/a>\u00a0and other democracies. Where multiple criminal suspects act within a common set of circumstances, prosecuting them together promotes judicial efficiency. Such consolidation is especially appropriate for the Oct. 7 trials if investigators cannot tell exactly which militants killed which victims.<\/p>\n Flexible Rules of Evidence:\u00a0Israel\u2019s tribunal law allows judges to deviate from the state\u2019s regular rules of evidence where necessary to resolve questions of fact. Justice Info and IBAHRI say the judicial latitude erodes the right to fair trials in the 1966 International Covenant on Civil and Political Rights (ICCPR<\/a>).<\/p>\n The ICCPR endorses the right to fair trials but does not address military tribunals or any rules of evidence. In the tribunals of\u00a0Nuremberg<\/a>,\u00a0Tokyo<\/a>,\u00a0The Hague<\/a>,\u00a0Tanzania<\/a>\u00a0and\u00a0Jerusalem<\/a>, judges were given broad discretion to apply the rules of evidence. Similar leeway is granted in ICC\u00a0Articles 15-18<\/a>.<\/p>\n Judges need flexibility to retrace the atrocities of a war zone, where parties may find unusual types of evidence or evidence that is hard to authenticate. Questions may also arise regarding whether and how to disclose classified information.<\/p>\n Majority Decisions:\u00a0Israel\u2019s tribunal law requires the appointment of professional judges and permits each three-judge panel to convict a defendant based on a two-thirds majority vote. PHROC, Adalah and IBAHRI insist the verdicts should be unanimous, especially in capital cases.<\/p>\n The rules for tribunals in\u00a0Nuremberg<\/a>, Tokyo,\u00a0The Hague<\/a>,\u00a0Tanzania<\/a>\u00a0and\u00a0Jerusalem<\/a>\u00a0permitted convictions by majority vote. ICC\u00a0Article 74(3)<\/a>\u00a0takes the same approach.<\/p>\n In\u00a0many<\/a>\u00a0democracies, a criminal trial verdict is decided by a majority vote among\u00a0professional judges<\/a>. Other democracies prefer a unanimous verdict by a lay jury. Still others seek a majority vote among a mix of professional and lay judges. There is no consensus on the point.<\/p>\n Simon Wiesenthal, a Holocaust survivor and hunter of Nazi war criminals, said the Nuremberg prosecutions delivered a fitting blow for justice and a vital record for history. If he could see Israel\u2019s tribunal law, he would be proud.<\/p>\n Joel M. Margolis is the legal commentator of the American Association of Jewish Lawyers and Jurists, the U.S. affiliate of the International Association of Jewish Lawyers and Jurists. He is the author of\u00a0The Israeli-Palestinian Legal War.<\/p>\n","protected":false},"excerpt":{"rendered":"Gavel. (Credit: Katrin Bolovtsova\/Pexels) By Joel M. 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