It is essential at the outset to adopt a broad perspective if the issue of the trial of individuals accused of terrorist offenses committed on October 7, 2023, in Israel is to be viewed objectively.
Unquestionably, the incursion into Israel and the swath of appalling offenses carried out by Hamas militants on October 7, including murder, rape and kidnapping, were deeply and in some instances disgustingly shocking and must command the full weight of legal retribution.
These were acts calculated to terrorize the communities subjected to these savage attacks.
That so many of the victims were women, children and elderly only serves to fuel the fires of redemptive justice.
The Israeli justice minister, Yariv Levin, has stated that his ministry will continue to work to bring the captured terrorists to justice.
But can I be the only lawyer to question Minister Levin’s idea of “justice”?
The concept of justice in a liberal common-law jurisdiction, such as obtains in Israel, necessarily invokes an independent judicial process to determine guilt.
The individual offenses include murder, rape and kidnapping, all common-law and statutory offenses in Israel for which those accused must stand trial.
Under Israeli law, every person on trial has a right to legal representation, and the statutory role of the Israeli Public Defender’s Office is to provide that representation to those who cannot afford private counsel.
However, the PDO has announced that it will not provide legal representation to anyone charged with having committed what, for convenience, I will call an October 7 offense.
The PDO’s justification for this stance is that “in our opinion the procedure against these terrorists is a procedure not suited to judicial procedure available to deal with terrorists or terrorism.” Perhaps this convoluted statement reflects the confusion in the minds of the PDO; certainly it demonstrates that the accused have already been categorized as terrorists, even by the PDO.
For the avoidance of doubt, the justice minister’s observation that “I support the public defense’s refusal to represent the Hamas murderers who carried out the war crimes of the October 7 massacre” indicates a grave misconception of what constitutes justice.
Cab Rank Rule
Israel does not divide the legal professionals into barristers and solicitors; both these roles are combined in that of attorney, not dissimilar to the United States.
Hong Kong, like England and Wales, does have a divided profession, but my understanding is that Israel’s attorneys subscribe to the priority of “the Cab Rank Rule,” just as the Hong Kong and English and Welsh Bars do.
The Cab Rank Rule is derived from the London Hackney Carriage Regulations, which make it illegal for a taxi driver to refuse to take a passenger who hails his cab. The Cab Rank Rule also dictates that a barrister may not refuse to act for a client who is willing to pay his normal fee, provided that the barrister is free and the case is within his competence.
The logic of the rule is the necessary corollary to the law that gives everyone accused of crime the right to be legally represented, just as the Hong Kong Basic Law provides.
The inherent integrity of a system of criminal justice demands full and unreserved observance of this rule.
It also reflects on the barrister’s objective duty to both the court and the system of justice.
There is a misconception, even among apparently educated people, that counsel only take on clients with whom they agree. A nanosecond’s reflection marks the serious flaw in this thought process.
Counsel’s duty is to present the client’s case to the best of their ability, but that does not equate to believing what they are told, or approving or condoning anything said or done by the client.
Sometimes I think of us as cyphers, people unimportant in themselves but through whose skill the client’s case is presented in its best light. To this extent, we are essential cogs in the machinery of justice.
Failure to understand this concept is a failure to understand the role and purpose of counsel, especially in the field of criminal defense.
Safeguarding individual freedoms
Consequently, the refusal of the Israeli PDO to represent those charged with an October 7 offense strikes at the heart of the integrity of a criminal justice system, particularly one that provides an accused person with the right to legal representation.
Lawyers brought up in the liberal common-law system place the highest value on these safeguards of individual freedoms.
If a justice system is to be tailored to a subjective perception of legal entitlement to representation, one based on the nature of the offense, this strikes against the very root of the principle that all are innocent until proved guilty.
It is as if the law provided that by virtue of the character of offense with which you are charged, you are not entitled to be legally represented. You have been judged and found guilty, and therefore you cannot have counsel.
Without competent defense counsel, faced with allegations of having perpetrated these heinous offenses, the accused do not stand an earthly chance of a fair trial.
Those Palestinians captured are already labeled terrorists and members of Hamas. Whereas I can well see the argument for regarding membership of Hamas as belonging to a proscribed organization, such membership has to be proved.
More important, that the specific crimes were perpetrated and by whom has to be determined judicially. Motivation may be an aggravating factor that can properly be labeled terrorism, which goes to the appropriate sentence, but in itself it does not prove the actus reus of the crime.
It is disturbing to learn that the Israeli High Court rejected a petition to reveal the whereabouts of 62 Gazans incarcerated somewhere in Israel, being detained incommunicado.
Denied access to legal counsel and legal representation at trial, one cannot help but wonder, to whose concept of justice is the justice minister working to bring those accused?
Israeli lawyers’ justifiable fury in the face of the October 7 massacre should not blind them to abandon a justice system that is a cornerstone of their civilization.
Neville Sarony is a noted Hong Kong lawyer with more than 50 years at the Bar.