The Israeli Knesset’s newly enacted law establishing a special tribunal for the perpetrators of the October 7 attack rests on a premise that should not be controversial: the massacres, hostage-taking, torture, sexual violence, and looting carried out by Hamas and its collaborators were not ordinary crimes, but atrocities of historic magnitude. Israel has not only the authority, but the duty, to prosecute those responsible. That said, atrocity trials derive their authority not from the horror of the crimes they confront, but from their ability to preserve the disciplined restraints of law in the face of overwhelming temptation and pressure to abandon them.
In many respects, the legislation correctly recognizes that ordinary criminal process is structurally ill-equipped for proceedings of this nature. The October 7 prosecutions are expected to involve hundreds of defendants, thousands of victims and witnesses, sprawling crime scenes, wartime evidence collection, and charges ranging from terrorism offenses to crimes against humanity and genocide (see Sections 1 and 3 of the Law; see also here and here). The ordinary architecture of domestic criminal adjudication in Israel was not designed for mass atrocity litigation on this scale.
Yet the central difficulty has never been whether October 7 warrants exceptional legal treatment. It is whether a democratic state can construct an exceptional tribunal without allowing exceptionalism itself to become the governing logic of the proceedings.
That challenge is particularly acute in atrocity trials because such proceedings invariably operate on two levels simultaneously. They adjudicate individual criminal responsibility, but they also function as sites of collective narration. They produce public memory, construct authoritative historical records, and transform diffuse national trauma into institutional language. It is therefore unsurprising that supporters of the legislation have repeatedly invoked the Eichmann trial as a historical analogue. Like the Eichmann proceedings, the coming prosecutions are expected to perform not only adjudicative functions, but also epistemic and expressive ones: preserving testimony, resisting denialism, and giving juridical form to collective moral condemnation.
But this is precisely where atrocity adjudication becomes institutionally fragile.
The Tension Between Show Trials and Individual Criminal Responsibility
Hannah Arendt famously observed that the Eichmann trial operated simultaneously as a criminal proceeding and a historical theater. For Arendt, the danger was not the public nature of the trial itself, but the risk that broader pedagogical, national, and political ambitions would gradually displace the disciplined task of adjudicating the concrete criminal responsibility of the individual defendant before the court (something I’ve written about previously; see here, pp. 300-301). Modern atrocity trials, including those before the ICTY, ICTR, and Special Court for Sierra Leone, have repeatedly confronted versions of the same tension (see here, pp.279-281). The challenge is rarely whether atrocity proceedings communicate moral condemnation. They inevitably do. Rather, the challenge is whether the symbolic and communicative dimensions of the proceedings remain subordinate to individualized adjudication instead of consuming it.
Historically, the defining pathology of the “show trial” was never merely fabricated evidence or predetermined guilt. Its deeper logic was the transformation of adjudication into a vehicle for broader symbolic or political objectives. The defendant ceased to function principally as a legal subject and instead became a vessel through which the state narrated trauma, projected moral clarity, consolidated collective identity, or staged sovereign power. That danger does not emerge only in authoritarian systems. Proceedings become vulnerable when the expressive dimensions of the trial begin eclipsing its responsibility-determining function.
The Israeli Legislation
Several features of the new Israeli legislation make that balance unusually delicate. The law formally imports ordinary criminal procedure and evidentiary rules as a baseline. Yet Section 17(b) simultaneously authorizes the tribunal to depart from those rules whenever such deviations are deemed necessary for “the discovery of truth and the doing of justice.” Any such departure must be justified in writing and may not prejudice the defendant’s right to a fair trial, although the provision leaves considerable discretion to the tribunal in determining when those conditions are met. The legislation further permits flexibility regarding evidentiary chains of custody, written testimony, witness arrangements, and disclosure obligations. Section 12 provides for public broadcasting of opening statements, verdicts, and sentencing hearings, while Section 23 authorizes extensive use of video participation and remote proceedings.
None of these provisions are indefensible in isolation. Mass atrocity litigation inevitably generates administrative and evidentiary pressures unfamiliar to ordinary criminal courts. Other international tribunals have repeatedly modified procedural structures when confronted with vast evidentiary records, battlefield documentation, and enormous witness pools. The ICTY’s use of written witness statements under Rule 92bis under its bespoke Rules of Procedures and Evidence, the ICTR’s reliance on video-link testimony and special witness arrangements, and the victim-participation frameworks developed by the Extraordinary Chambers in the Courts of Cambodia all illustrate the recurring challenge of reconciling procedural rigor with the practical demands of large-scale atrocity prosecutions.
But atrocity adjudication derives a substantial part of its legitimacy precisely from demonstrating procedural restraint under conditions that generate immense pressure to abandon it. Extraordinary crimes inevitably create demands for unique procedural elasticity. The danger is not a single dramatic departure from due process, but the gradual normalization of cumulative flexibility and the slow migration from procedural adaptation to procedural dilution.
Problems Arising from the Tribunal’s Institutional Design
These concerns become sharper in the context of the October 7 tribunal given its institutional design.
The proceedings remain embedded within a fundamentally military framework operating through the broader architecture of military jurisdiction and emergency regulations. Although the legislation allows for the appointment of retired civilian jurists (Section 5(b)), the structure itself remains heavily militarized. Judicial appointments are substantially shaped by military hierarchy. Judicial appointments are substantially shaped by military hierarchy. Candidates are selected by the IDF Chief of Staff following recommendations from the President of the Military Court of Appeals, with formal appointment by the President of Israel, while the President of the first-instance tribunal is likewise appointed by the IDF Chief of Staff (Sections 5(b), 8(a)).
The broader institutional framework was likewise created under substantial executive involvement. The legislation requires the establishment of a dedicated military headquarters to prepare the proceedings and creates an inter-ministerial steering committee, chaired by the Director-General of the Ministry of Defense and composed of senior executive officials, to oversee implementation, resource allocation, and institutional preparation for the trials (Sections 32-33). The Minister of Defense is charged with implementing the law and authorized to promulgate regulations necessary for its operation (Section 39). Most strikingly, the legislation further assigns the Minister of Defense responsibility, in consultation with the Minister of Justice and subject to parliamentary approval, for determining the manner and timing of the execution of any death sentence imposed under the Law (Section 40). Together, these provisions place key aspects of the tribunal’s administration and operation under significant executive supervision.
Even assuming scrupulous fairness on the part of individual judges, legitimacy in atrocity adjudication depends not only on actual impartiality but also on visible insulation from the political and security apparatus responsible for waging the war, detaining the suspects, and constructing the tribunal that will now prosecute them. Historically, one of the recurring vulnerabilities of politicized atrocity proceedings has been precisely the perception that adjudication functions less as an independent legal process with its own autonomy than as an extension of wartime sovereign power.
The choice to situate these proceedings within military jurisdiction is therefore not merely technical or administrative. It shapes the symbolic character of the tribunal itself. Modern international criminal law has increasingly moved toward hybridized and internationally insulated frameworks precisely because institutional distance from immediate political authority has become deeply intertwined with perceptions of legitimacy. The Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and other hybrid tribunals reflected, at least in part, an effort to avoid the appearance that atrocity adjudication was simply an instrument of victorious state power.
The Israeli law moves in the opposite direction. It concentrates adjudication within a heavily securitized institutional environment while simultaneously expanding procedural flexibility under conditions of extraordinary public pressure.
Broadcasting Atrocity Trials
The broadcasting provisions in the Israeli law raise related difficulties. Transparency is indispensable in proceedings of this magnitude. At the same time, in international and hybrid atrocity trials, broadcasting serves important functions beyond transparency alone. Where tribunals are geographically distant from affected communities, victims number in the thousands, and meaningful in-person participation is often impossible, televised proceedings can enhance access, visibility, and public engagement with the justice process.
The October 7 tribunal, however, presents a somewhat different context. The proceedings will take place domestically, in the society most directly affected by the crimes, and public access to the proceedings is not dependent upon overcoming the geographic and institutional distance that often characterizes international tribunals. Under such circumstances, the rationale for extensive broadcasting shifts, while the risk that the proceedings become intertwined with broader political and emotional dynamics may become more pronounced. Once proceedings begin operating as national stages for collective grief, symbolic closure, or public performance, the line separating adjudication from spectacle becomes increasingly unstable and the proceedings themselves risk becoming the event.
The broader political and emotional environment surrounding the proceedings inevitably exerts a gravitational pull on the tribunal itself, creating powerful incentives for the process to serve simultaneously as historical reckoning, public pedagogy, and reaffirmation of national unity.
That dynamic was reflected in the remarks of one of the law’s principal drafters, MK Yulia Malinovsky, following the legislation’s passage. Describing the anticipated proceedings as “the trials of the modern Nazis,” she emphasized that they would be “filmed and broadcast” and that they would “enter the history books.” The statement captures the extent to which the proceedings are already being imagined not merely as mechanisms for individualized criminal culpability, but as foundational moments in the nation’s historical memory. Under such conditions, the distinction between criminal adjudication and public ritual becomes unusually difficult to preserve.
Capital Punishment
Even more troubling, however, is the decision to retain the possibility of capital punishment. This choice must be understood in the context of recent legislative efforts to normalize the use of the death penalty in terrorism-related proceedings. Earlier this year, the Knesset approved legislation making capital punishment available for certain Palestinians convicted of lethal nationalist attacks, a measure that generated significant domestic and international criticism. The tribunal law thus does not simply revive a dormant punishment for an extraordinary historical event; it further embeds capital punishment within an evolving architecture of counterterrorism adjudication.
Contemporary international criminal tribunals have overwhelmingly abandoned the death penalty. The Rome Statute of the International Criminal Court excludes it entirely (Rome Statute, art. 77). This is not because such crimes are insufficiently horrific, but because modern atrocity adjudication has increasingly understood its legitimacy to depend upon fidelity to procedural safeguards. Relatedly, atrocity crimes adjudication has traditionally concentrated its prosecutorial efforts on those deemed “most responsible” for the planning and orchestration of atrocity crimes.
Since many of the principal architects of October 7, including Yahya Sinwar and other senior Hamas leaders (e.g., here, and more recently, here), have already been killed during the war by the Israeli security forces, the retention of capital punishment in the current proceedings raises particularly acute concerns. The trials are expected to involve large numbers of defendants, many of whom are likely to be lower-ranking militants and direct participants rather than the senior political and military leadership. It should hardly require emphasis that under these circumstances, the prospect of multiple death sentences would not strengthen the legitimacy of the trials. It would instead risk shifting attention away from the atrocities of October 7 themselves and toward the punishments imposed in their aftermath.
Essential Safeguards
The legislation’s most significant vulnerability, therefore, may not lie in any single doctrinal provision, but in the cumulative institutional atmosphere it creates: militarized adjudication, broad procedural elasticity, extensive public broadcasting, and the symbolic gravity of capital punishment operating simultaneously under conditions of ongoing national trauma and widespread public demands for retribution.
None of this suggests that the prosecutions should not proceed. To the contrary, the atrocities demand accountability. But atrocity adjudication has always required something more difficult than punishment alone. Its legitimacy depends upon preserving a meaningful distinction between lawful judgment and collective retribution precisely when public pressure to collapse that distinction becomes strongest.
That is why several safeguards become indispensable. Procedural flexibility should remain genuinely exceptional rather than gradually hardening into a parallel system of diluted evidentiary standards. The principle of “equality of arms,” requiring effective and institutionally independent defense counsel capable of meaningfully contesting prosecutorial narratives, challenging evidence, and resisting the immense structural asymmetry generated by proceedings of this scale, must be treated as a central condition of legitimacy rather than a technical formality. Public broadcasting, meanwhile, should be approached with particular caution so that transparency does not gradually collapse into theatricalization. Judicial independence must likewise be reinforced through meaningful insulation from executive and military influence. Finally, the death penalty should either be abandoned altogether or, at the very least, confined to the narrow category of those most responsible for planning and orchestrating the atrocities rather than normalized across mass proceedings involving lower-ranking militants and direct participants.
The October 7 prosecutions will inevitably be judged not only by the verdicts they produce, but by the institutional model of accountability they leave behind. Atrocity trials occupy a uniquely difficult position: they are expected to punish, to memorialize, to educate, and to help societies make sense of catastrophic violence. The difficulty, however, is that the more burdens they are asked to bear, the greater the risk that the adjudication of individual defendants becomes secondary to broader historical, political, or symbolic ambitions. The lasting significance of the October 7 tribunal will therefore depend on whether it succeeds in reconciling those competing demands while preserving the qualities that give legal judgment its legitimacy in the first place.
