On January 21, 2025, the Knesset (Israel’s parliament) passed the Prohibition of Denial of Massacre Incidents of October 7, 2023 (the Shemini Atzeret Massacre) Law 5785-2025.
The law prohibits denial of the events of October 7, 2023, when members of Hamas crossed the security fence separating Gaza and Israel, killed more than 1200 people, wounding 7,500, and taking 251 hostages. A UN mission team in March 2024 “found clear and convincing information that sexual violence, including rape, sexualized torture, cruel, inhuman and degrading treatment has been committed against hostages and . . . may be ongoing against those still held in captivity.“
The law’s objective is
to combat the denial of the massacres that took place as part of the murderous terrorist attack carried out by the Hamas terror organization and its partners in an organized and deliberate manner against Israeli citizens and residents on … (and October 7 and 8, 2023), acts that constitute crimes against the Jewish people and crimes against humanity. (§ 1.)
The law provides that the publication, in writing or orally, of statements “denying the October 7 massacre … with the intention of defending, sympathizing with, or identifying with the Hamas terrorist organization and its partners” constitutes a criminal offense punishable by imprisonment for a term of five years. (§ 2.) The publication of information that was made randomly, in good faith or for a legitimate purpose, such as providing information to the public, for research purposes, or during a legal proceeding, is not criminalized. (§ 4.) Filing of an indictment for an offense under the law will be done by or with the consent of the Attorney General. (§ 5.)
According to explanatory notes of the draft bill,
Not long after the events, articles were published in the media and statements were heard denying the atrocities as well as the fact that that they were made as part of an organized and deliberate program of the Hamas. As we learn from the phenomenon of Holocaust denial, lies of this type may spread quickly and thwart the possibility to establish the historical truth. Also, sometimes denial of the massacre is part of an attempt to protect the perpetrators of crimes and to express support for them.
Concerns were expressed in February 2024, regarding the “ambiguous wording” of an earlier version of the draft bill submitted to the Knesset in November 2023, and its potential chilling effect on freedom of speech in Israel. According to a February 25, 2024, statement by the Association for Civil Rights in Israel (ACRI):
ACRI’s position: Opposes the bill. On October 7, 2023, Hamas carried out a terrible massacre on Israeli citizens. Denying the massacre is unacceptable and regrettable, but the criminal tool is not the right tool to deal with the denial of the massacre, and its harm outweighs its usefulness.
In general, there is a real difficulty in criminally prohibiting speech, especially those that do not directly call for an act of violence or that raise a tangible danger with a high degree of certainty of harm. The default is that speech, even those that arouse disgust, is permissible, with the understanding that the right means of dealing with them are through discussion, education and presenting counter-arguments, and not through deprivation of liberty. Where the sentence should come into play is only when the expression becomes incitement, or when it establishes a reality in which terrorism and racism are permitted.
The bill is not based on research attesting to the extent of the phenomenon of denial of the massacre in Israel, and to the effectiveness of less draconian measures to deal with it (such as education, public relations, assistance in removing content from social networks, etc.). In the absence of this data, it is difficult to justify deprivation of liberty for years because of expression, however insensitive. In addition, the bill is disproportionate and does not include mechanisms to ensure that only particularly serious speech is incriminated, preventing over-criminalization.
The final text of the law narrowed the scope of actions that may be criminalized and added conditions for implementation of the law.
Representing the Knesset Constitution, Law, and Justice Committee in January 21, 2025, Knesset hearing before approval of the law, Knesset Member Yitzhak Ze’ev Pindrus stated,
In the name of the exceptionality of the proposed new offense in the fabric of criminal legislation, the committee emphasized that the offense would apply only to those who commit the offense with the intention of defending Hamas, expressing sympathy for them, or identifying with them. Thus, the offense will not catch an innocent consumer of disinformation, but only those who spread lies about the massacre and thus seek to support Hamas.
In addition, it is proposed to explicitly establish that there will be cases in which such publication will not constitute a criminal offense, if it is done randomly, in good faith or for a legitimate purpose, inter alia, for the purpose of providing information to the public or research or in the framework of a legal proceeding, such as for the purpose of representing a defendant in a criminal proceeding. An indictment for the new offense will be filed by the Attorney General or with his consent.
The new law is similar to an existing law, the Prohibition of Denial of the Holocaust Law, 5746-1986, which prohibits the publication of statements that deny or praise, express sympathy for, or identify with acts committed during the Nazi regime that constitute crimes against the Jewish people or crimes against humanity, if the intention of the publication was to defend the perpetrators or express sympathy or solidarity with them.
Ruth Levush, Law Library of Congress
January 27, 2025
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