“Israel must attack Gaza even more mercilessly, expel the population and resettle the territory with Jews, the deputy speaker of Israel’s parliament, the Knesset, has said. Moshe Feiglin, a member of Prime Minister Benjamin Netanyahu’s ruling Likud Party, makes the call in an article for the Israeli news website Arutz Sheva. Feiglin demands that Israel launch attacks ‘throughout Gaza with the IDF’s [Israeli army’s] maximum force (and not a tiny fraction of it) with all the conventional means at its disposal.’
Force Gaza population out
‘After the IDF completes the “softening” of the targets with its firepower, the IDF will conquer the entire Gaza, using all the means necessary to minimize any harm to our soldiers, with no other considerations,’ Feiglin writes in one of several calls for outright war crimes.
Following the re-conquest, Israel’s army ‘will thoroughly eliminate all armed enemies from Gaza. The enemy population that is innocent of wrongdoing and separated itself from the armed terrorists will be treated in accordance with international law and will be allowed to leave,’ Feiglin writes.
‘Gaza is part of our land’
‘Gaza is part of our Land and we will remain there forever,’ Feiglin concludes. ‘Subsequent to the elimination of terror from Gaza, it will become part of sovereign Israel and will be populated by Jews. This will also serve to ease the housing crisis in Israel.’
Feiglin has a long history of incitement. Last week he expelled Arab members of the Knesset who dared to criticize Israel’s ongoing slaughter in Gaza and called for Israel to cut off power to dialysis patients there.
As of now, ninety percent of Gaza is without electricity, journalist Mohammed Omer reports, and most Palestinians in Gaza are getting as little as two hours of electricity per day.” [….]
Comment: Should this be construed as incitement of genocide? Incitement means “encouraging or persuading another to commit an offence.” Incitement is only prohibited in international criminal law with regard to genocide, owing to its gravity and heinous nature. Incitement is criminalized as such, as Cassese informs us, “even if it is not followed by the commission of genocide.” Incitement must be both “public” and “direct.” Feiglin’s remarks meet the first condition,* and insofar as his statements are provocative and not vague and indirect, it appears to involve this second condition as well. Yet, as Larry May explains,
“The ICTR’s (International Criminal Tribunal for Rwanda) Akayesu Trial Chamber is forthright in recognizing that the intent of two different people must be proved (emphasis added): ‘It implies a desire on the part of the perpetrator to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging.’ There is a desire to create in others a desire to commit a crime. And because of this odd type of mens rea, the crime of incitement to genocide is especially hard to prove, because in effect we must peer into the mind[s] of two different people, or infer from their behavior what the mental states for two different people are.”
May also points out that while the same Trial Chamber required proof of direct causation between propaganda or incitement and the commission of a specific offence,“the ICTR Media Case Trial Chamber concluded ‘that this cause relationship is not requisite to a finding of incitement. It is the potential of the communication to cause genocide that makes it incitement.’” This is further distinguished from mere “hate speech” in several rulings. Moreover, the break with successful instigation of genocide renders this an “inchoate crime,” a category that also includes attempt, conspiracy, and solicitation.
Addendum: See Feiglin’s comments on Arabs and Palestinians at his Wikipedia entry.
Update: Over at Opinio Juris, Kevin Jon Heller states, correctly no doubt, that “Feiglin is advocating the forcible transfer or deportation of the Palestinians — commonly referred to as ethnic cleansing — not genocide.” In other words, he is urging behavior that amounts to “a crime against humanity,” although there is not, as with genocide, the inchoate crime of incitement to ethnic cleansing. In addition, because Feiglin writes that “[a]ny place from which Israel or Israel’s forces were attacked will be immediately attacked with full force and no consideration for ‘human shields’ or ‘environmental damage,” Heller notes that he is also “urging Israel to commit war crimes against the Palestinians.”
* See Antonio Cassese, International Criminal Law (New York: Oxford University Press, 2nd ed., 2008): 229-230, and the discussion in Larry May’s Genocide: A Normative Account (Cambridge University Press, 2010), especially pp. 180-201