The New October 7 Tribunal and the Legitimacy Challenge of Atrocity Adjudication

(Ya’ara Mordecai – Just Security) 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 New October 7 Tribunal and the Legitimacy Challenge