How Israeli settler terrorism set the stage for genocide in Gaza

By Eitay Mack

Attorney general Gali Baharav-Miara's failures started during the Huwwara pogrom in occupied Palestine with her silence and failure to enforce the law or any accountability

On Friday, the International Court of Justice (ICJ) issued a provisional measure order requiring that "the State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip". Even Israeli judge Aharon Barak, who issued a dissenting opinion in the ICJ Gaza genocide case, supported this measure.

After South Africa filed its petition to the ICJ, in which statements by Israeli officials were used to prove intent to commit genocide in Gaza, there was criticism within Israel of the attorney general, Gali Baharav-Miara, for her silence.

 Her failures, however, did not start in Gaza but in the West Bank village of Huwwara. On 26 February 2023, about 400 far-right Jewish extremists participated in the Huwwara pogrom, where they spent hours setting on fire dozens of houses, apartments, chicken coops, shops, and hundreds of cars.

Several Israeli politicians encouraged the perpetrators of the pogrom both during and after its occurrence. Many of us demanded that the attorney general open a criminal investigation into all those who incited genocide. And though there were clear cases in which the connection between the incitement and the acts of violence was visible, we were largely dismissed by Baharav-Miara and met with a terse response to contact the police directly.

Violent incitement

Among the many responsible for last year's violent incitement was David Ben Zion, the deputy head of the settlers' Samaria Regional Council, who tweeted: "The village of Huwwara should be wiped out today…There is no room for mercy."

The attorney general only initiated a criminal investigation against one politician who has not been charged after nearly a year

A few days later, Finance Minister Bezalel Smotrich, who had "liked" Ben Zion's tweet, reiterated his directive at a forum hosted by the Marker business newspaper.

Smotrich said: "I think the village of Huwwara should be wiped out." Another far-right politician and member of the Knesset, Limor Son Har-Melech, tweeted about two hours after the start of the pogrom that she had arrived in Huwwara "to support the righteous cry of the hundreds of Samaria residents who went out to protest."

During the pogrom, Daniella Weiss, who heads the Nachala Settlement Movement, said in an interview with the Public Broadcasting Corporation: "I should appeal to people to leave Huwwara? I must call on them to stop? Stop what? We are protecting Jewish lives." The next day, in an interview with the Israeli Ynet radio, Weiss defined the pogrom as a "legitimate protest action".

The day after the pogrom, Knesset member Zvika Fogel also encouraged the violence in an interview with the radio station, Waves of Israel. "Huwwara closed and burned, that's what I want to see...I want to restore security to the residents of the State of Israel. How do you do that? Stop with the word 'proportionality'. Stop with the reluctance to collective punishment because it is not suitable for all kinds of courts. I take off my gloves," he said

 Given the brazen incitement of violence against the roughly 7,000 Palestinians who live there, it is no wonder that the pogrom in Huwwara lasted for several hours and that it led to a series of pogroms in the West Bank villages Orif, Lubban ash-Sharqiya and Turmus Ayya.

Despite the complicity of several Israeli leaders in these terroristic acts, the attorney general only initiated a criminal investigation against Fogel, who has not been charged after nearly a year.

Total impunity

In Israel, the law and the procedural rules confer to the attorney general the exclusive authority to initiate criminal proceedings against individuals. This is primarily due to the sensitivity to freedom of expression and the fact that potential suspects might be elected politicians.

The far-right national security minister, Itamar Ben Gvir, was convicted of terrorist offences himself, and some of those who incited the attack on Huwwara are Israeli parliament members from his far-right, Otzma Yehudit party, and others related to it. Following his election, Ben Gvir took control of the police after the passage of the Ben Gvir law.

Not only did the attorney general not initiate a serious criminal investigation into the incitement against Huwwara, but she would not speak on the matter altogether. She only issued a warning on 9 January, just before the ICJ hearing. She claimed that law enforcement officials were examining statements and calls for intentional harm against civilians and warned that they might constitute criminal offences, including incitement.  In contrast to the attorney general, Yad Vashem, Israel's official memorial to the victims of the Holocaust, provided a more serious response to our letter. While it held that the rampage in Huwwara did not constitute incitement to genocide, the centre conceded that "any expression of violence, physical or verbal, is unacceptable, especially when it is directed in a sweeping and irrelevant way towards a certain group or community - as unfortunately happened in Huwwara".  It is also important to note that even if there were any legal obstacles to the attorney general initiating criminal charges on acts of incitement to genocide, her justification for not having done so, including in cases of violence and terrorism, is not clear.

To establish that incitement to violence and terrorism occurred, it is necessary to prove that a statement was made that either directly called for violence or, to a lesser extent, expressed praise, sympathy or encouragement for a violent act. The last requirement would be to prove that the statement led to the commission of an act of violence.

From incitement to genocide

In view of the attorney general's failure to enforce the law or any accountability in the Huwwara case, it is no surprise that Israeli officials and politicians took advantage of the climate, following the Hamas attack, in order to incite deadly harm against the entire civilian population in Gaza.

Not only did the attorney general not initiate a serious criminal investigation into the incitement against Huwwara, but she would not speak on the matter at all.  An example of this is the conduct of Knesset member Nissim Vaturi from the far-back benches of the Likud Party. Most Israelis likely have no idea what he has been doing in parliament since he was first elected in December 2020, except when he became a joke last summer after it was revealed that he invited Likud activists to join him on a cruise ship to the Greek islands at a discounted rate.

Not only did the attorney general not initiate a serious criminal investigation into the incitement against Huwwara, but she would not speak on the matter at all

Since November 2023, he has made headlines in Israel after calling for the burning of all of Gaza in interviews and posts on X, the social media platform formerly known as Twitter. With no fear of criminal prosecution, on the day after the attorney general issued her warning that she would take action against violent instigators, Vaturi said again in an interview with the Kol Barama radio channel that Gaza should be burned, adding that "whoever remains there should be eliminated period. I have no doubt at all."  What is the reason for the inaction by the attorney general? On 26 March, one month after the pogrom in Huwwara, Baharav-Miara submitted her response to petitions filed at the Israeli Supreme Court to invalidate the appointment of Ben Gvir as the minister of national security due to his racist statements and criminal convictions for terrorism.

The attorney general declared her belief that there was no legal impropriety in his appointment and that the court should dismiss the petitions. She even strangely wrote that "in recent years, the minister stated that he changed his ways and explained to his constituents on various occasions that racist ideas are not acceptable to him."  Given that senior members of Prime Minister Benjamin Netanyahu's government and those in the parliament have explicitly supported violence, terrorism and genocide against the Palestinians, any criminal proceedings initiated against them would be seen across the political spectrum in Israel as an attempt to overthrow a democratically elected government.  It seems therefore that the attorney general preferred politics to fulfilling her professional role. Only time will tell if the ICJ's order will change her priorities.

Eitay Mack

Eitay Mack is an Israeli lawyer and human rights activist located between Jerusalem and Oslo. He represents Palestinians who were harmed by Israel's security forces in the occupied West Bank, and led legal proceedings that failed to stop the training in Israel of Indian police officers serving in Kashmir and to reveal information about Israeli snipers' shooting of protesters in the Gaza Strip.