The Israeli Knesset voted 93-0 on Tuesday to establish a special tribunal with the power to impose the death penalty on Palestinians convicted of participating in the Hamas attacks of October 7, 2023, in which approximately 1,200 Israelis were killed and around 250 taken hostage. The tribunal will hold televised trials — the government has explicitly compared the model to the 1962 proceedings against Adolf Eichmann, which were broadcast and watched by millions. The vote was unanimous; there was no parliamentary dissent. Israel has not carried out a judicial execution since Eichmann was hanged in 1962. The legislation creates a category of offence — participation in or command responsibility for the October 7 attacks — that will be tried under new statutory procedures. Defendants held at the Hague by the International Criminal Court, including those transferred from Gaza and the West Bank, could in theory be subject to Israeli extradition requests, though that legal path is complex.
The received wisdom
Progressive international law scholars and human rights organisations will object, loudly and on principled grounds. The death penalty is prohibited under the EU’s Charter of Fundamental Rights, incompatible with Council of Europe membership, and widely considered an irreversible punishment with a non-trivial rate of application to the innocent. The spectacle of televised trials echoes show-trial aesthetics even when the underlying justice may be legitimate. There is also the question of proportionality as a legal matter: international humanitarian law distinguishes between combatants and those who give orders, and applying the death penalty broadly — potentially to foot soldiers who were themselves recruited under duress — risks conflating the architects of mass murder with its instruments. The ICC has its own proceedings underway; parallel national prosecutions with the death penalty on the table create jurisdictional tensions that could embarrass Israel’s already strained relationships with European partners.
A different read
These objections are worth hearing. They are also inadequate as a complete response to what October 7 actually was.
The Eichmann trial is the right historical frame — but its lessons are more nuanced than either its admirers or critics acknowledge. Hannah Arendt covered the Eichmann proceedings for The New Yorker, and her Eichmann in Jerusalem remains the canonical text. Arendt’s concern was not that Israel lacked the right to try Eichmann — she accepted the legitimacy of the tribunal — but that the proceedings were staged primarily for political and pedagogical purposes rather than purely for justice. Attorney General Gideon Hausner, she wrote, wanted a narrative performance, not a legal proceeding. The risk she identified — that the trial would teach the wrong lesson, reducing an administrative machinery of murder to the personal evil of one man — applies with equal force to televised mass trials of October 7 participants. Trials designed for broadcast tend to produce broadcast-optimised justice.
Yet the more important point is this: the 93-0 vote was not a product of irrationality or bloodlust. It was a product of the fact that Israel’s existing criminal code had no category adequate to the scale of what happened. The October 7 attacks were not ordinary terrorism — they were an organised military-style assault with documented sexual violence, deliberate targeting of civilians, mutilation, and the taking of children as hostages. The Knesset’s comparison to Eichmann reflects a genuine legal vacuum: there is, for Israelis, a category of crime that existing law simply does not fit. Creating a special tribunal to fill that gap is exactly what democracies under extreme stress have historically done. The United States created military commissions after September 11; Britain used the Diplock courts for Northern Irish terrorism cases in the 1970s; France established special anti-terrorism chambers after the 1986 bombing campaigns. In each case, the normal justice system was deemed inadequate — and in each case the special procedure raised legitimate concerns that were managed over time with varying success.
The death penalty is the hardest element to defend. Israel’s own legal tradition has been almost universally opposed to capital punishment since Eichmann — the sentence was so controversial at the time that it prompted Justice Moshe Silberg’s dissent. The practical problem is finality: Hamas still holds an unknown number of Israeli hostages, and executing perpetrators eliminates a potential negotiating asset. There is also the predictable martyrdom dynamic — public executions of October 7 participants, broadcast, would become recruiting material for generations. The Israeli security establishment has generally understood this, which is why the death penalty was not applied after the 1972 Munich massacre, the 1978 Coastal Road massacre, or the Second Intifada’s worst atrocities.
The unanimous vote signals that this parliament, at this moment, has concluded that ordinary considerations do not apply. That is understandable. Whether it is wise is a different question.
What to watch
- ICC jurisdictional conflict: Whether the ICC, which has its own proceedings regarding October 7, asserts primacy over Israeli domestic prosecutions — or whether Israel makes extradition requests for ICC-held defendants.
- Trial timing and defendant selection: The first defendants selected for prosecution will signal whether the tribunal targets commanders and planners or extends to lower-level participants. That distinction will determine the international legal reaction.
- Hostage negotiations: Any escalation in the death-penalty rhetoric will likely complicate ongoing Qatar-mediated talks over remaining hostages.
- European government responses: Whether EU member states issue formal objections — or, notably, stay silent — will reveal how much political capital Israel retains in European capitals post-Iran war.
— J