Law in the Shadow of October 7: Reflections on Political Trials
This essay explores the intricate relationship between law, politics, and violence in the aftermath of October 7. It focuses on two contexts where the court is called to re-establish the rule of law and discusses the dilemmas that are involved in the process.
The first part discusses a domestic law context and the dilemmas concerning the prosecution of perpetrators of atrocities during the Hamas-led attack on October 7 who were captured and detained by Israel. Contrary to the conventional view that identifies political trials with show trials where the authorities predetermine the outcome, the essay engages with liberal thought to present an alternative understanding of the "political trial" that aligns with a liberal conception of the law. This approach recognizes the unavoidable political dimension of such trials and its inextricable link with violence without attempting to deny or obscure it.
The second part discusses an international context, the proceedings initiated by South Africa against Israel before the International Court of Justice (ICJ) concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip. Despite international law's aim to bridge conflicts between incommensurable normative worlds, the opposing parties in The Hague have turned the 1948 Genocide Convention into a vehicle for binary, dichotomous thinking, leaving no room to acknowledge or represent the victimhood of the other side. As a result, international law has become an arena that promotes dogmatic political positions instead of challenging and disrupting the binary distinctions between the parties involved.
Leora Bilsky is a Full Professor at the Tel Aviv University Faculty of Law and the academic director of the Minerva Center for Human Rights at Tel Aviv University. Her research focuses on Law after the Holocaust, genocide, transitional justice, and political trials. She is the author of Transformative Justice: Israeli Identity on Trial (2004) and Holocaust, Corporations, and the Law: Unfinished Business (2017). Her book How Do You Say "Genocide" in Hebrew? The Struggle Over Cultural Genocide in the Eichmann Trial is forthcoming in Hebrew.
Uri Brun holds an M.A. in Philosophy (summa cum laude) and an LL.B. (magna cum laude) from Tel Aviv University. His main research areas are ethics, the philosophy of language, and the philosophy of law, with a particular focus on their intersections. His M.A. thesis, "Conceptual Engineering and Normative Critique," examined the ways in which we can criticize, revise, and improve our ordinary conceptual resources.
