President Obama has hitherto accepted the language of a “moderate” Palestinian Authority. The PA and its associates are distinctly obligated to refrain from incitement against Israel. Going back even to the legal antecedents of the current peace process, the Interim Agreement (Oslo 2) stated, at Article XXII, that Israel and the PA “shall seek to foster mutual understanding and tolerance and shall accordingly abstain from incitement, including hostile propaganda, against each other….” In the Note for the Record, which accompanied the Hebron Protocol of January 15,1997, the PA reaffirmed its commitment regarding “Preventing Incitement and Hostile Propaganda, as specified in Article XXII of the Interim Agreement.” Substantially familiar if more general reaffirmations can readily be found in the Road Map.
What has not yet been broadly acknowledged is that the Genocide Convention criminalizes not only the various acts of genocide, but also (Article III) conspiracy to commit genocide, and direct and public incitement to commit genocide. Articles II, III and IV of the Genocide Convention are fully applicable in all cases of direct and public incitement to commit genocide. For the Convention to be invoked, it is sufficient that any one of the State parties call for a meeting, through the United Nations, of all the State parties (Article VIII).
Although this has never been done, the United States, especially following the recent election, should now consider very seriously taking this particular step while there is still time. Israel, too, should be an obvious co-participant in this call, but it is unlikely that any government in Jerusalem, historically aware of always-expanding global indifference to Jewish life, will seek formal redress under any multilateral conventions. An alternative remedy/strategy could involve the issuance of specific criminal indictments for crimes against humanity by Israel’s Justice Ministry to the key Palestinian broadcasters and journalists now engaged in daily anti-Semitic harangues. In the words of Israeli attorney, Nitsana Darshan-Leitner, back in February 2004: “Those who operate Palestinian television and radio stations and the printing presses engaged in hate speech should be arrested along with the other suspected killers.”
Undeniably, any public trial before an Israeli tribunal could have grave geopolitical risks. For one, as no Arab or Iranian authority could ever be expected to extradite alleged wrongdoers to Israel for trial, it would inevitably be up to Israeli military and police authorities to acquire physical custody over defendants. This is the case although such expected Arab/Iranian disregard for Israeli extradition requests would be a manifestly serious violation of peremptory international criminal law.
Even if an Israeli trial could afford opportunity for a direct evidentiary connection between Palestinian media incitement and Palestinian terrorism, much of the world would be focused instead on the extraordinary means by which Israel took custody of the inciters. After all, when Israel captured major Nazi war criminal Adolph Eichmann in 1960, more states chose to condemn the abduction than to recall the prisoner’s role as murderer of 1,000.000 Jewish children.
The Genocide Convention, the London Charter, and the December 2003 ICTR decision on Rwanda are not the only authoritative codifications that should now be invoked against relentless media and leadership calls for the mass killing of Jews. The 1965 International Convention on the Elimination of All Forms of Racial Discrimination should also be brought productively into play. This treaty condemns “all propaganda and all organizations which attempt to justify or promote racial hatred and discrimination in any form,” obliging, at Article 4(a) State parties to declare as “an offense punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons.” Article 4(b) affirms that State parties “Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offense punishable by law.” Further authority for curtailing and punishing Palestinian calls for genocidal destruction of Jews can be found at Article 20(2) of the International Covenant on Civil and Political Rights: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
The overriding point of the judgments at Nuremberg was to ensure that all future crimes against humanity be identified, prosecuted and punished. Fully aware of these judgments, the International Criminal Tribunal in Rwanda ruled, in December 2003, that “mere words” can contain substantial criminal liability and may warrant very severe punishments. Understood in terms of ongoing homicidal and genocidal Arab and Iranian calls for violence against Israel, it is essential that every state in the United Nations now be reminded of its binding obligation not to encourage another Holocaust. This is a fully legal obligation, and certainly must not be taken lightly.
Now, especially after the recent U.S. elections, there may be new opportunities in Washington to finally make things right regarding Israel’s fundamental security needs. It is imperative that any such opportunities be identified and taken quickly, while there is still time, and before a Palestinian state is declared unilaterally.
Louis Rene Beres was educated at Princeton (Ph.D., 1971), and is the author of many books and articles dealing with genocide, terrorism, war and international law. Strategic and Military Affairs analyst for The Jewish Press, he is Professor of Political Science and International Law at Purdue.