Case Explained: Legitimacy Foreclosed? The De-Hybridization of the October 7 Special Court and Lessons of the Iraqi High Tribunal – Legal Perspective

[Kate McInnes and Elsa Wyllie practice international criminal law at Arendt Chambers]

Bill 5776-2026, establishing a special tribunal for the perpetrators of the October 7 attacks on Israel (the “October 7 Court”), is rapidly advancing through the Knesset. 

The legislation’s earliest iterations presented the October 7 Court as a hybrid tribunal in all but name. What was proposed was a special judicial body, separate from both civilian and military courts, engaging international experts to help prosecute alleged acts of genocide. Legislative revisions, however, have systematically stripped away these “internationalising” features. What began as a sui generis court of mixed domestic and international composition has been reshaped into a military tribunal embedded within existing, and controversial, state structures.

The October 7 Court’s legislative trajectory closely mirrors that of the Iraqi High Tribunal (IHT) which likewise began as a partially internationalized experiment in post-conflict justice before retreating into a domestically controlled (and deeply contested) forum. In both cases, hybridization initially bolstered credibility and signaled adherence to international standards; in both, these safeguards were progressively eroded, diminishing the tribunals’ overall legitimacy.

We argue that the de-hybridization of the October 7 Court threatens its ability to achieve its stated goal, per the November 2024 draft’s explanatory note, of providing “an appropriate, swift, and efficient legal response to the October 7 events, while preserving principles of justice and international law.” Consolidating the court’s authority within Israel’s military framework and removing mechanisms designed to enhance independence and technical expertise risks undermining fairness, impartiality, and credibility before a single case is ever heard. Iraq’s post-Saddam experience offers both a comparison and a cautionary tale of legitimacy foregone.

This post advances a limited claim. It does not assess the political context of the proposal, the moral gravity of the October 7 atrocities, the guilt of any accused person, nor any other proposed legislation. Its focus is institutional. By situating the proposed October 7 Court within the taxonomy of hybrid tribunals and comparing its evolution to the IHT, the post clarifies what the proposal began as, what it has become, and what that transformation implies for its legitimacy.

Hybrid Origins: The Israeli Proposal and the Original Iraqi Model

On November 9, 2023, Knesset members Yulia Malinovsky and Simcha Rothman began discussions on how Israel should prosecute perpetrators of the October 7 attacks. From that point until December 2025, their proposal envisioned a special court that would try approximately 300 accused persons under Israel’s Crime of Genocide (Prevention and Punishment) Law, which, per Article 2, authorizes the death penalty.

In the September 17, 2025, session, MK Malinovsky insisted that, for what was being contemplated, “there is no precedent, neither in Israel nor anywhere else in the world.” Institutionally, however, the proposal for the October 7 Court closely resembled a familiar model in international criminal law: the hybrid tribunal.

Although no universally accepted definition of a “hybrid court” exists, certain features recur. As Sarah Williams identifies, such tribunals typically exercise criminal jurisdiction, are created ad hoc in response to a specific crisis, incorporate international participation in judicial or prosecutorial bodies, and combine domestic and international law in their jurisdiction and applicable rules. They exist along a spectrum, with fully international tribunals at one end and purely domestic courts at the other. Between these lie “internationalised” domestic tribunals: courts embedded within national systems but supported by international personnel and expertise. It is in this latter category that the Iraqi High Tribunal is often placed.

Formally a domestic court, seated in Baghdad and applying Iraq’s 1971 Criminal Procedure Code, the IHT was first introduced in 2003 by the Coalition Provisional Authority as a tribunal that would be driven by significant foreign assistance and participation, and explicitly provided for the appointment of non-Iraqi judges and advisors (Articles 4(d) and 6(b)). It was not fully international, but neither was it purely domestic. Its architecture sought to project impartiality and competence, while preserving Iraqi ownership of post-Saddam accountability.

The November 2024 early debate draft of the bill establishing the October 7 Court revealed a strikingly similar instinct. The proposal contemplated a stand-alone “special tribunal” (Article 3) composed of fifteen judges (Article 5) and an autonomous appellate structure (Article 6), with explicit provision for the appointment of non-Israeli judges possessing “appropriate knowledge and experience” (Article 4(2)). 

A reading of the Knesset minutes indicates that this hybridization was proposed to serve two legitimizing purposes.

First, technical competence. As a Knesset legal advisor emphasized in the session on October 25, 2025, Israeli jurisprudence contains little sustained analysis of genocide’s complex elements, particularly respecting the dolus specialis. Authoritative jurisprudence on these elements has largely developed before international tribunals. Establishing genocidal intent — especially for lower-level operatives rather than senior planners — presents formidable evidentiary and legal hurdles. Prosecuting genocide is a doctrinal challenge, and international assistance was incorporated into the proposal for this reason.

Second, narrative authority and international credibility. Israel continues to rely heavily on foreign support and is actively contesting proceedings in which it has itself been accused of genocide. In that context, a tribunal visibly structured to meet international standards could function not only as a criminal court, but as a site of posterity and legal narration. As the former Director of the Military Prosecution for Judea and Samaria articulated during the session of November 19, 2025, an important goal of the October 7 Court is to “document [the] event forever, maximize legitimacy, [and] make justice indisputable.”

In sum, the original proposals for the IHT and the October 7 Court combined domestic ownership with external support, reflecting the recognition that trials of historic gravity require both international buy-in and visible adherence to the highest standards of justice. Hybrid tribunals were created precisely for this purpose: to facilitate justice where domestic capacity is limited and impartiality is in question.

De-Hybridization

Yet, as the Israeli bill evolved, the hybrid features that once defined it were not refined, but removed. 

The Iraqi experience provides a revealing analogue. The Transitional National Assembly’s 2005 revision to the statute of the IHT curtailed international participation and eliminated both the possibility of non-Iraqi judges and the requirement for non-Iraqi advisors. What began as a partially internationalised mechanism narrowed into a purely domestic forum. 

To be sure, the challenges that plagued the IHT were not caused solely by de-hybridization. American occupation, Iraq’s broader instability, persistent security breakdowns, and sectarian fragmentation were clearly major impediments. But, as Sylvia de Bertodano has argued, the erosion of hybrid factors from the IHT removed structural buffers that could have mitigated those vulnerabilities and strengthened a justice project that once held real promise.

Israel’s legislative path follows a similar pattern. As noted, the November 2024 draft reflected a sui generis hybrid design: a stand-alone special tribunal, trying the crime of genocide, with fifteen fixed judges and explicit provision for the appointment of non-Israeli judges.

By the January 2026 first-reading draft, however, this architecture had been entirely dismantled. The Special Tribunal was no longer an autonomous entity. Instead, it has been absorbed into the military court system operating under the Defence (Emergency) Regulations (1945), with the intent of reviving the controversial military court at Lod. This reconfiguration sits uneasily with both Israeli jurisprudence and international human rights law. In Schnitzer v. Chief Military Censor (1989), the Israeli Supreme Court acknowledged that the Regulations were enacted by a colonial legislature and that their continued enforcement has long sat uncomfortably within a democratic constitutional order. At the international level, the UN Human Rights Committee’s  General Comment No. 32 clearly affirms that the trial of civilians before military courts must remain exceptional and strictly justified by necessity.

The October 7 Court’s proposed personnel also shifted. The January draft contained no provision for foreign judges, international advisers, or formalised external consultation. The bench is now to be composed exclusively of retired Israeli judges and officers qualified for appointment to the District Court (Article 4), with retired Supreme and District Court judges presiding over appeals (Articles 6). Appointment occurs entirely through domestic mechanisms, and the judicial pool is drawn exclusively from Israeli judicial and military circles. 

Simultaneously, the tribunal’s jurisdiction has expanded. What was initially framed as a genocide tribunal now also encompasses offences relating to harming sovereignty, causing war, aiding the enemy in wartime, and terrorism (Article 3). The result is a significant narrative shift: rather than treating October 7 as a truly exceptional event demanding a distinct legal response, the tribunal reframes it as a single episode within the broader, decades-long conflict.

Why was the October 7 proposal dehybridized? While security is a legitimate and persistent concern, the Knesset minutes indicate that this was not a principled decision, but one that emerged from the institutional convenience of relying on Israel’s existing military court infrastructure and the practical challenges of constructing a sui generis tribunal. Indeed, experts repeatedly cautioned against this move, with one law professor warning during the December 3, 2025, session that adopting a domestic military model may invite unfavourable comparisons to Guantánamo.

Writing in 2007 on the de-hybridization of the IHT, Guénaël Mettraux argued that: 

The empowerment of national, rather than international, authorities and the reliance placed upon national, rather than international, law is not of itself a sufficient reason for concern. However, in the context of highly politicized proceedings … the presence of international judges and of other international experts embedded into the judicial system is often seen as an important mechanism to build trust into that system. The removal of those safeguards … is therefore likely to make that system fragile as well as expose it to a growing lack of trust. 

Nearly 20 years on, an identical claim can be made in respect of the October 7 Court. In the circumstances here — the creation of a military tribunal, empowered to impose capital punishment, and tasked with adjudicating crimes of historic gravity — the move away from a hybrid tribunal is significant. In both contexts, de-hybridization raises serious questions about the tribunal’s institutional legitimacy.

The Implications: Legitimacy Foreclosed?

The proposed October 7 Court is no longer a hybrid tribunal designed to reconcile domestic ownership with international credibility. It has evolved into a retroactively constituted military court, empowered to impose death sentences and embedded within a system long criticized for its prosecutorial asymmetry and inequality of arms, in direct opposition to international standards.

The stakes could not be higher for both the victims of October 7, and the 300 alleged perpetrators who remain in detention. To date, Israel has not prosecuted anyone for these crimes, notwithstanding the state obligation under international human rights law to investigate and prosecute grave violations committed within its jurisdiction. For many victims, the justice process may be the only avenue to establish what happened that day and why, formally recognise the gravity of the harm suffered, and secure their right to an effective remedy. 

For defendants, the stakes are existential. It is well-established that a tribunal empowered to impose the death penalty must conform to the highest standards of legality and procedural fairness. Yet the current proposal lowers the sentencing threshold from unanimity to a simple majority, weakening a safeguard traditionally regarded as essential in capital cases. To compound this, the Public Defender’s office has refused to provide the October 7 accused with representation, falling short of the baseline protections that international law requires for fair trial rights.

Throughout the legislative debates, Knesset members have repeatedly invoked the need for legitimacy. Yet their actions and words have often done the opposite: by hollowing out the mechanisms that uphold the tribunal’s credibility and frequently resorting to rhetoric unbecoming of those tasked with establishing a criminal tribunal empowered to impose the death penalty, they undermine the very legitimacy they profess to value.

The Iraqi experience demonstrates the institutional cost of abandoning hybrid safeguards. The retreat from international participation and structural insulation did not merely invite criticism, but directly contributed to enduring reputational damage. Those outcomes were not inevitable. They flowed from deliberate design choices. The October 7 Court, as presently drafted, appears to follow the same path.

Yet, as with the IHT, this outcome is not inevitable. Reintroducing international participation and reinforcing procedural safeguards could help recover some of the legitimacy that earlier drafts aimed to secure. Whether these measures are adopted now rests with the Knesset members.