This March, 14 federal judges traveled to Israel to meet with government officials and learn about last year’s terrorist attack and kidnapping that ignited a war in Gaza, with Colorado’s Timothy M. Tymkovich among the delegation.

Tymkovich, who sits on the Denver-based U.S. Court of Appeals for the 10th Circuit, believed he was invited on the trip because of his interest in international law, prior trips to Ukraine and his current assignment to the nation’s foreign surveillance appeals court.

“I’d say it’s somewhat random, but not totally,” he said.

Tymkovich spoke with Colorado Politics last month about the trip, and has made similar presentations at universities, for the Colorado chapter of the Federalist Society and to his colleagues on the 10th Circuit.

“Every Israeli I talked to said the refrain was, ‘We are not going anywhere.’ Basically, this was our refuge post-Holocaust and we’ll never let it happen again,” Tymkovich said. “Conversely, I think most of the Israelis I interacted with said, ‘And Palestinians are not gonna go anywhere either.’ Both sides have an interest in living and governing in that part of the world. The ultimate question is how are they gonna reconcile their differences and in what timeframe is that going to occur?”

On Oct. 7, 2023, members of the militant group Hamas killed approximately 1,200 people and took 250 hostages at an Israeli music festival and nearby kibbutzim, or agricultural settlements. Israel’s ensuing military response has killed at least 44,000 Palestinians, largely in Gaza and mostly women and children.

The growing civilian casualties have reportedly been a source of frustration in the Biden administration toward Israeli Prime Minister Benjamin Netanyahu. Meanwhile, campus protests erupted earlier this year to criticize U.S. support of the Israeli government.

“We met with academic leaders and really a cross-section of leaders, but there was a lot of concern about international perceptions of the conflict,” said Tymkovich. “And certainly a worry among the Israeli people about world opinion and how that’s going to affect support for Israel as the most functional democracy in the Middle East. But they were worried about world opinion, how that might affect the assistance that they get from the West.”

Meetings with officials, others

The World Jewish Congress sponsored the federal judges’ trip. Of the 14 attendees, most were appointees of former President Donald Trump. Some have issued warnings to future law clerks about holding views that could be construed as pro-Hamas.

Tymkovich, a George W. Bush appointee, said the group visited Tel Aviv and Jerusalem. In the major cities, things were “business as usual” and he generally felt safe.

The judges met with an American citizen who was initially taken hostage, and whose husband is still in captivity. They also spoke with a Palestinian from the occupied West Bank who described his vision for Israeli-Palestinian coexistence.

The group heard from Stephanie L. Hallett, the United States’ deputy chief of mission. Tymkovich said she gave a “fair representation” of how the Biden administration saw things progressing.

Calling it “one of the most interesting two-hour discussions I’ve ever had in my life,” Tymkovich met with three justices of the Supreme Court of Israel. The group discussed Israeli legal principles, pre-war efforts to overhaul the justice system, and the role of the judiciary in checking the legislative and executive branches.

Tymkovich further learned about the role of attorneys in advising the Israel Defense Forces on humanitarian law and military operations. He believed Israel has “a much more robust legal system in the defense area than most countries do, probably including this one.”

To that end, he felt it was important for lawyers to be involved in conflict management, while acknowledging that, as with the “torture memos” during the Bush administration, attorneys can devise compelling arguments for outcomes that are ill-advised or objectionable.

“That’s always a risk,” Tymkovich said. Still, “when we were there, I think it’s fair to say there was a substantial, if not overwhelming, support for an aggressive operation against Hamas. The Oct. 7 attacks were very traumatic to the country and the people we interacted with all uniformly emphasized the horror that they felt.” 

‘Time will tell’ on genocide question

Shortly before the judges’ trip, South Africa brought allegations of genocide against Israel in the International Court of Justice, asserting the country has taken actions “intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group.”

Tymkovich said the judges met with lawyers who are representing Israel, who acknowledged they had to litigate the case “with one eye towards international public opinion.”

“I don’t think anybody kind of in a leadership position that we interacted with would consider the Gaza conflict genocide. Their perspective is kind of what you would expect, which is, ‘We were attacked and we are fighting back,'” Tymkovich said. “But time will tell whether these international legal bodies will successfully litigate some of the questions about international law that are at play here.”

He added that he would have been interested in the opportunity to potentially learn more by going into Gaza, but it was not safe to do so. Asked whether he would support a ceasefire, Tymkovich said it “wouldn’t be appropriate” for him to weigh in, nor did he opine about what justice might look like in the conflict.

“I’m gonna probably punt on that question. There’s a lot of moving parts there and it’s hard to make a judgment in the middle of something,” he said. “One question that wasn’t answered and can’t be answered right now is why did Hamas initiate the attack when it did and what its goals were. And what it would define as a successful outcome. Conversely, it’s hard right now to predict what the country of Israel and its people would consider a successful resolution.”

Tymkovich speculated there may be some reunification of Israel and the Palestinian territories, and that judges and lawyers will have an important role to play.

“It’s an opportunity to be one of the best places in the world to visit,” he said, referring to Gaza. “Think of it like ‘Switzerland on the Mediterranean,’ or some other neutral country.”

Finally, Tymkovich addressed the idea that his trip might someday intersect with a case before him — such as a campus protester’s constitutional rights lawsuit against police for use of force. Already, one of the trip’s attendees, Judge Ryan D. Nelson of the Ninth Circuit, has had to recuse himself from hearing a case involving U.S. military support of Israel.

“If a case involving a protest ever came to me, to some extent I think I’d be better informed by having had a chance to visit places like Israel and Ukraine where I’ve seen conflict,” Tymkovich said. “But to answer your question, that’s always a question for the future on a case-by-case basis.”