The trial of Nazi war criminal Adolf Eichmann in 1961 became a historic courtroom saga, broadcast to the world, but only once a foreign lawyer was hired to represent him: no Israeli lawyer was willing to defend such a figure.
More than 60 years later the Israeli justice system faces a similar conundrum, but this time with potentially hundreds facing trial.
As the country reels from the Hamas attack on October 7 that triggered its deadly offensive in Gaza, some Israeli lawyers and commentators are recalling Eichmann’s trial and calling for similar large-scale proceedings for the Palestinians arrested that day.
Yet in an echo of the challenges that preceded Eichmann’s hearings, lawyers from Israel’s state public defender’s office — who have previously represented figures including Hamas members — have suggested that they are not prepared to defend the suspects.
Some on Israel’s political right argue that the October 7 suspects should face military tribunals instead, away from the public eye. Others, including prominent human rights lawyers, are calling on the country to respect the prisoners’ right to a fair trial, even though Israel’s trauma runs deep from the sheer violence of the atrocities.
More than 1,200 people were killed and some 250 taken hostage, according to Israeli officials. Few details have been released of the group detained that day, and the number is classified. But an intense domestic debate has begun as Israeli lawyers and lawmakers weigh what to do next.
“There is a desire on the part of Israelis to see . . . some sort of public reckoning,” said Jessica Montell, executive director of Israeli human rights group HaMoked. “The victims of atrocities have a right to see people held accountable.”
At the same time, she stressed the need for due process. “People, even if they committed horrible crimes — there’s a minimal standard that all prisoners are entitled to.”
Israel’s retaliatory offensive in Gaza has killed more than 29,000 people, according to Palestinian officials. The debate around the October 7 suspects comes at a time when the International Court of Justice has ordered Israel to comply with international law on genocide, and has also begun hearings into the legality of Israel’s 56-year occupation of the Palestinian territories.
Activists and human rights groups note that Israel has a long history of denying Palestinians fair trials. Detainees accused of security crimes usually face closed-door military tribunals in which evidence is often classified if they are from the occupied West Bank, where Israel imposes military law. Israeli prisons are overflowing after widespread arrests in the West Bank in the past four months.
Cases of torture have been reported in prisons and several men have died in detention since the start of the Gaza war.
But the hundreds detained on the day of the attack form a distinct group. As Gazans and suspects in a Hamas assault, Israel does not consider them prisoners of war but “unlawful combatants”. Many are now held in the Ktzi’ot jail in the Negev desert, said HaMoked, detained in “lockdown” mode in windowless cells, according to reports.
For the past four months, a special unit of the police named Lahav 433 has been conducting a vast investigation — watching thousands of hours of footage, interviewing witnesses and interrogating detainees.
What the investigations will lead to, however, remains unclear.
“The prosecution is adamant that they want to have these historic public trials, in which the crimes committed on October 7 will be portrayed to the world,” said lawyer Anat Horovitz.
It was also Israel’s “obligation” as a democratic state, she said, with a “moral duty to give all the safeguards and rights that people have in regular criminal trials”.
For a decade, Horovitz worked as the country’s deputy public defender, an office providing state-sponsored legal defence and representing people “accused of the worst crimes you can imagine”.
But a few weeks after October 7, for the first time in its 30-year history, the Public Defender’s Office released a statement suggesting it would be unable to take on the case. “In our opinion, the procedure against these terrorists is not suited to the judicial procedure available today to deal with terrorists,” it said in a statement.
For many Israeli lawyers, this made sense. Elad Danoch, chair of the Bar Association in Israel’s southern district, said those who committed “crimes against humanity, crimes of genocide” should not receive representation paid for by “Israeli taxpayers, including families of the kidnapped, murdered and wounded”. Instead, a foreign defence attorney could be brought in, he said — as in the Eichmann trial.
But Abeer Baker, a Palestinian-Israeli lawyer who has worked many times with the office in the past — including in representing members of Hamas — said she was “shocked . . . so frustrated and angry” about the move.
The public defender’s office was “dragged with the whole populistic atmosphere. Every ministry wanted to show the public their patriotic position,” Baker said. “It’s a shame.”
Last month far-right politician Simcha Rothman, the head of the Knesset’s judicial and constitution committee, introduced a bill preventing those arrested on October 7 from being represented by the Public Defender’s Office, to “avoid the discomfort” of the lawyers there.
The office has since opposed the bill and told the Financial Times it did not refuse to provide defence for the October 7 suspects, but that given the “unprecedented” attack and “unique legal issues” it was waiting to see what shape any proceedings would take.
The hearings could take the shape of a military tribunal, something Rothman said he would support. Asked if this would present a risk to Israel’s reputation, he said: “Haters gonna hate.”
Following his 1961 trial, in which he was eventually represented by a German lawyer, Eichmann was found guilty of crimes against humanity and later executed, the only use of the death penalty in Israel’s history.
The lead prosecution lawyer in that case was Gideon Hausner. His son Amos, also a lawyer, said one of his father’s main aims for that trial had been to enter the events underlying the case into the historic record, which could also be useful now.
“October 7 happened just four months ago and there’s already denial of it,” he said. “There’s a lot of need to demonstrate what happened to the world.”
Some of Israel’s top lawyers argue, however, that the opposite outcome could ensue. Much forensic evidence was lost on October 7 as houses were burned down, or as emergency responders rushed to help the injured and collect hundreds of bodies.
The criminal requirement that accusations be proved beyond reasonable doubt, and the rigour with which a criminal court would treat evidence, could mean parts of Hamas’s attack might not make it into criminal indictments, said Yuval Kaplinsky, a lawyer and former member of the state attorney’s office.
“There are many people in the world who already suspect Israel invented some of these events,” he said. “Let’s imagine one event does not end up mentioned in the indictment. This alone will create a mess. It will be: ‘Israel admits…’”
Kaplinsky wrote to the judiciary committee opposing the idea of trials, which he called a “disaster”. “We are putting, on the narrow shoulders of the criminal system . . . the heavy load of writing the history of that day,” Kaplinsky said.
Speaking to the committee, he said the normal justice system was not intended to handle an event like October 7. “This is the enemy stepping into our country, invading us and committing mass murder, and we are supposed to meet that event with criminal law?” he said.
Kaplinsky suggested legal changes enabling group trials could result in a more efficient process. At a tribunal, each person could get “an hour, then you do 10 per day,” he said.
For lawyer Abeer Baker, the discussion carries little meaning given the state of Palestinians’ legal rights. The debate about tribunals, she said, was just to “convince the world that we are still a democratic state . . . It’s theatre.”
It was not just Hamas fighters who entered Israel once the Gaza perimeter was broken. Many residents of the enclave also crossed: videos showed elderly men with walking sticks and children wandering into Israel.
Baker said that some of these people committed violent crimes, some looted and some did nothing; the law would need to distinguish. “The assumption is that everybody who is under custody now, means he is involved. This is ridiculous,” she said.
