Justice and finance ministers refuse to fund legal defense for Hamas terrorists
Smotrich says request by courts shows ‘loss of values,’ as Courts Administration says law requires it to provide legal counsel for detainees
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Justice Minister Yariv Levin and Finance Minister Bezalel Smotrich have both blasted the Israel Courts Administration over its request for funding for legal representation for captured combatants suspected of carrying out the October 7 atrocities in southern Israel.
Their comments came after it emerged that courts dealing with Palestinian detainees captured during the ongoing war with Hamas in Gaza ruled that the prisoners needed legal representation when appearing before them.
Since the Public Defender’s Office has refused to represent these detainees, who are among the approximately 2,000 suspected Palestinian terrorists caught inside Israel or in Gaza since October 7, the courts ordered that they be given private counsel in accordance with Israeli law, which also stipulates that funding for such legal representation come from the state.
Levin said in a statement to the press on Wednesday: “I stand by my decision made at the beginning of the war: The Justice Ministry will not finance [this]; the Public Defender’s Office will not represent the Nukhba terrorists.”
Smotrich made similar comments, noting that his ministry had received a request to find a source of funding for “the Nukhba terrorists who massacred, slaughtered, raped and murdered Israeli citizens on October 7,” describing the request as “insane.”
Hamas’s Nukhba force spearheaded the October 7 assault on southern Israel, which saw some 1,200 people killed and 251 taken hostage, amid numerous acts of brutality.
Smotrich said he had instructed officials in the Finance Ministry not to provide any funding for the purpose of legal representation for the alleged terrorists.
“We are losing our sense of values,” said the finance minister. “Israeli citizens will not fund from their money the legal defense for such disgusting enemies.”
He noted that the current economic conditions amid the war meant the state was scraping together funds for various societal needs while cutting budgets for many pressing matters.
The suspected terrorists captured by Israel since the start of the war, numbering around 2,000, have yet be charged. But some have appeared before courts, either physically or by video link, to deal with requests by the state to extend their detention.
According to Hamoked, which provides legal representation to Palestinian detainees from the West Bank, there are 171 detainees from Gaza who are currently in the midst of legal proceedings, while the rest of the detainees are being held under the terms of the 2002 Unlawful Combatants Law, where they have to come before a judge after 75 days of detention and must be given access to a lawyer after 90 days of detention.
The Israel Courts Administration said in response to the uproar on Wednesday that the courts are empowered to appoint defense attorneys for those who do not have legal representation under the Law for Criminal Proceedings of 1982, and that suspects who appear before the court are required by law to have legal representation in order to hold such a hearing under the terms of a 2023 temporary law passed following the outbreak of the war.
The courts processing these cases therefore issued decisions based on those laws to appoint private defense attorneys for the suspected terrorists, after the Public Defender’s Office refused to provide them with legal counsel.
The funding for such representation must come from state funds, the law stipulates.
“The Israel Courts Administration turned to the Justice Ministry to examine how these judicial decisions will be implemented, and to find a funding source, and the issue is still under discussion,” the administration said.
The administration underlined that the decisions were made because the law requires it. “The courts are not the ones that determined the legal situation,” the administration said.
The state has yet to decide what to do with Palestinian terrorists caught during the course of the war. They are defined as unlawful combatants under the 2002 Unlawful Combatants Law for holding terrorists and combatants from terror groups fighting Israel, and are not entitled to “prisoner of war” status under international humanitarian law, since they are not members of the legal armed forces of a sovereign state.
Some of the possible charges against the operatives held by Israel include assisting an enemy in war, acts of mass terrorism, murder with exceptional cruelty, murder as a member of a terror organization, and rape as an act of terror.
The acts of murder with which the Hamas terrorists could be charged all provide for a life sentence without eligibility for parole.
However, a 2014 law allows the government to release prisoners from Israeli jails for three purposes: to secure the release of Israeli hostages from captivity; as a foreign policy gesture; or as part of a foreign policy agreement or treaty.
