The Constitution, Law and Justice Committee on Wednesday began to prepare the Incarceration and Prosecution of October 7 Participants Bill, 2024, for first reading.
The bill, sponsored by Committee Chair MK Simcha Rothman (Religious Zionism) and MK Yulia Malinovsky (Yisrael Beitenu), is designed to regulate the incarceration and prosecution of the participants of the October 7 massacre. It is proposed to establish a special tribunal that will be responsible for criminal adjudication of defendants accused of genocide-related offenses. It is further proposed to form a special team that will decide on filing indictments to the special tribunal, taking into account considerations related to the State of Israel‘s security and foreign relations. The bill also proposes to empower the District Court to confirm the status of a person as an illegal combatant in the October 7 events, after an incarceration order is issued by the IDF Chief of Staff, in a way that will allow holding the person in custody for an extended period—even if he does not pose an immediate danger—for the purpose of questioning or prosecution or for long-term national security considerations.
The explanatory notes to the bill state: “This bill is designed to regulate the incarceration and prosecution methods of the participants of the hostile acts, murder, rape, looting and kidnapping that ensued on the morning of the Simchat Torah holiday, October 7, 2023, with the aim of destroying the Jewish people and the State of Israel, which is the nation-state of the Jewish people, while targeting deliberately the state’s citizens and residents.”
In the debate, MK Malinovsky presented the bill and said, “I believe that prosecuting the terrorists who committed the atrocities of October 7 is our duty. We understand that there were difficulties in terms of evidence and the proper work of the police, and I know that the investigative authorities and the State Attorney’s Office turned over every stone to find evidence. The criminal procedure does not provide a solution for the events of October 7, and therefore MK Rothman and I drafted a joint bill that will regulate the imprisonment and prosecution of the terrorists who took part in the October 7 massacre.
MK Malinovsky called to establish a special tribunal on this matter so as not to create overload on the judicial system. In addition, she said there is a possibility of opening a military court for the purpose of prosecuting terrorists who, for various reasons, cannot be prosecuted for genocide. She also said that it would be possible to declare terrorists as unlawful combatants who took part in hostilities against the State of Israel.
MK Malinovsky continued: “Unfortunately, in the events of October 7 there will be cases where we will not know who exactly was the murderer of some of our citizens, and therefore we provided solutions such as collective indictments and the possibility of prosecuting terrorists as a group. We are open to dialogue because what happened here is unlike anything else in the world, and I invite anyone with expertise to contribute his or her input. We must have creative, out-of-the-box solutions, and therefore a change of mindset is required, especially among the Ministry of Justice and the State Attorney’s Office.”
Committee Chair MK Rothman said, “I hope we will all mobilize to pass the law as quickly as possible. The main points of the bill are, first, to state clearly that the events of October 7 were genocide – this is the narrative of the State of Israel that we want enshrined in law, so that all state authorities address the matter accordingly. The second part of the law determines that since this was genocide, a designated tribunal must be established so that the judicial system is not clogged. This tribunal will not be comprised of the current judges, but of others chosen in one way or another. The third part concerns the examination of the considerations for prosecution, because prioritization is important from political and security perspectives.”
He further said, “Those we choose not to prosecute, for various reasons, will remain in the status of unlawful combatants forever – removed from life and never again roaming free.” Committee Chair MK Rothman stressed that the tribunal would have its own rules of procedure so that “we will not find ourselves applying these proceedings also to citizens of the State of Israel.”
After the main points of the bill were presented, Committee Chair MK Rothman asked for the government representatives’ responses.
A representative of the Ministry of Justice read the government’s position as presented in the Ministerial Committee for Legislation and said she could not add anything beyond what she had stated in the closed session that preceded the public discussion. Committee Chair MK Rothman replied that he did not understand why what was said in the closed discussion could not be said publicly. According to him, nothing was said that could endanger state security.
A representative of the Ministry of National Security said there was no objection to the bill, and a representative of the Israel Prison Service argued that the bill entails costs.
Committee Chair MK Rothman concluded the discussion and called on the Ministry of Justice to present a framework for prosecuting the Nukhba terrorists, as the Minister of Justice had requested in the past. “I do not know why the Ministry of Justice does not deign to present the framework. Why, to this day, has no framework been presented for prosecuting the Nukhba terrorists? This is information that the public needs to know. My interpretation is that, for reasons that are unclear, the Ministry of Justice is doing everything to prevent legislation on this matter from advancing.”
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