Letting Lawmakers Who Incite Against Gazans Off the Hook Will Cost Israel in The Hague - Israel News - Haaretz.com
Israeli State Prosecutor Amit Aisman's recommendation not to investigate cabinet members and lawmakers who called for targeting civilians in Gaza is very perplexing – both morally, and from a utilitarian point of view.
The official reasons given for this recommendation hold no water. The first reason, pointing to the lengthy time that elapsed since the first such remarks were made, is in itself a result of a decision by the state prosecution. It could have ordered an investigation into the remarks shortly after the end of the first battles at the beginning of the war.
The fact that it didn't do so then is a strange and unconvincing reason for not investigating now. This reflects a growing and destructive pattern of failing to enforce the law, and enforcement can easily be undermined when the state prosecution is acting with negligence.
State Prosecutor Amir Aisman at the Knesset, last year.Credit: Olivier Fitoussi
This should be an extremely simple investigation, involving verification and attribution of the remarks to their speaker, examining the statements against the circumstances under which they were uttered, and collecting testimony from the speaker. Avoiding these actions shows how serious the dereliction of duty has become.
The fact that the statements were made when the "blood was boiling," as Aisman put it, doesn't justify avoiding an investigation. At most, it could serve as an extenuating circumstance in determining a sentence for those found guilty of incitement.
In criminal law, when someone kills another person who has hurt them in the heat of the moment can, under some circumstances, not be convicted of murder. But they can still expect 20 years in prison. Should circumstances of "boiling blood" also prevent soldiers who have murdered civilians from being investigated?
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Leaders are expected to restrain emotions and act cooly even when emotions run high. When state leaders call for harming civilians, it's clear that this immediately impacts combatants on the ground who are in a constant state of understandably heightened emotions. Leaders should curb feelings of vengeance, not encourage them. They should emphasize the distinction between civilians and terrorists and the prohibition on hurting the former.
The fact that the exact opposite was done makes the incitement particularly offensive, due to the extent of its impact, stemming from the high status of the individuals making the remarks and the circumstances in which they were made. These are particularly severe cases of incitement to murder and possibly even genocide. The latter is considered especially egregious, carrying the death penalty in Israeli law.
The assumption that soldiers carry out only direct and explicit orders, and therefore remarks by political leaders are of no influence, is incorrect. A soldier, like any individual, is influenced by the atmosphere surrounding him. The influence of messages he receives could very well cause him to deviate from orders he has been given.
The accumulation of remarks by politicians, along with similar sentiments expressed very frequently in the media, have created an atmosphere that permits the killing of Gazan civilians. The lawmakers making such statements must not be absolved of responsibility. If leaders say such things, soldiers facing a cruel enemy might easily think they must be right.
It seems that the order of things had reversed. Now, the more important someone is, the less responsibility is expected of them. How can the state prosecutor's recommendation be justified, at a time when the investigations over the killing of civilians have not been fully pursued? And even more so, when the influence of the lawmakers' rhetoric on the deeds has not been examined at all?
Israeli soldiers in the Gaza Strip, this week.Credit: IDF Spokesperson's Unit
In South Africa's case against Israel at the International Court of Justice, incitement to genocide is set to be of particular importance. The state prosecutor's recommendation to some extent reinforces this part of the claim, as it attests that in Israel even those in charge of law enforcement do not treat incitement to murder seriously.
Before the International Criminal Court, Israel will not be able to rely on the "principle of complementarity," as it openly acknowledges that it has no intention of investigating the issue at all.
Even if Attorney General Gali Baharav-Miara decides not to accept the state prosecutor's recommendation, our law enforcement system will remain blighted by the very fact that this recommendation was issued. Even our well-wishers will now ask themselves whether it's possible to rely on an enforcement system in which the second most important personage behaves in this way.
It is especially hard to ignore the gap between this recommendation and the way in which Palestinians who are suspected of incitement to terror are being treated after October 7.
Since that disastrous day, the state prosecution has been pursuing a tough and uncompromising campaign against people who have posted extremist statements on social media. Nearly all of them have been found to be unknown individuals with small numbers of followers and little influence. Moreover, in many cases, no connection has been found between the content of their posts and the definition of incitement in the lawbooks.
Has the state prosecutor ignored the critical distinction between minnows and sharks? Or is he identifying himself with the school of National Security Minister Itamar Ben-Gvir, which holds that there is no such thing nor can there be any such thing as Jewish terrorism (but there is no limit to what is considered terror when the suspect is Palestinian)? This is selective enforcement in the very worst meaning of the term.
It is impossible to avoid the feeling that the state prosecutor's recommendation would not have come into being had a kind of consensus not arisen in the Israeli society to the effect that all inhabitants of Gaza are terrorists. This is an alarming victory by the extremist messianic right over those who want to maintain Israel's humanity, even in the face of a cruel enemy.
This consensus was undoubtedly aided by the horrors perpetrated by the terrorists and the mob that came in their wake from Gaza on October 7. However, it's part of a far lengthier process, one fueled by the occupation and worsened by policies that perpetuate it – depriving Palestinians of their right to self-determination while officially sanctioning the forfeiture of their lives and property in the West Bank.
Amid the reality of an endless occupation, the status of the occupied population as inferior, stripped of rights, and powerless to influence its fate becomes normalized. The result of this normalization is that it also expropriates the sanctity of the lives of those who are perceived as inferior.
One can only hope that the attorney general will reject the state prosecutor's recommendation and take an opposing approach, as suggested by previous communications made on her behalf to the International Court of Justice.