Feiglin Is Advocating Crimes Against Humanity and War Crimes, Not Genocide

by Kevin Jon Heller

Twitter is abuzz with claims that Moshe Feiglin, the Deputy Speaker of the Knesset in Israel, has called for the commission of genocide against the Palestinians. Here is what he said, in relevant part:

Conquer – After the IDF completes the “softening” of the targets with its fire-power, the IDF will conquer the entire Gaza, using all the means necessary to minimize any harm to our soldiers, with no other considerations.

Elimination- The GSS and IDF will thoroughly eliminate all armed enemies from Gaza. The enemy population that is innocent of wrong-doing and separated itself from the armed terrorists will be treated in accordance with international law and will be allowed to leave. Israel will generously aid those who wish to leave.

Feiglin’s comments are vile, horrifying, and unfortunately all too common in Israel’s increasingly toxic right-wing political culture. As awful as they are, though, they do not amount to incitement to genocide, because Feiglin is advocating the forcible transfer or deportation of the Palestinians — commonly referred to as ethnic cleansing — not genocide. There are five types of genocidal acts: (1) killing members of a group; (2) causing serious bodily or mental harm to members of a group; (3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (4) imposing measures intended to prevent births within the group; and (5) forcibly transferring children of the group to another group. The actions Feiglin advocates come closest to (3), but he makes clear that he is not advocating displacing Palestinians into a location where they could not physically survive, which would be genocide. (A pre-Genocide Convention example is the Armenian genocide, in which the Ottoman empire not only ethnically cleansed the Armenians, but drove them into the Syrian desert to die.) In short, Feiglin is advocating that Israel commit not genocide but crimes against humanity.

Feiglin is also, it’s worth noting, urging Israel to commit war crimes against the Palestinians. Here is another one of his suggestions:

Defense – Any 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’.

It is ICL 101 that it is a war crime to intentionally launch an attack knowing that it will — in the words of the Rome Statute — “cause incidental loss of life or injury to civilians… which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” In making that determination, an attacker must take into account any civilian who will be incidentally killed in an attack, even one who is serving as a human shield. Two wrongs do not make a right in ICL. By urging Israel to ignore the presence of civilians, therefore, Feiglin is urging Israel to launch attacks that are highly likely to be disproportionate.

http://opiniojuris.org/2014/07/19/feiglin-advocates-crimes-humanity-war-crimes-genocide/

27 Responses

  1. He is not advocating crimes against humanity either. He said that hey will be treated in accordance with international law and ALLOWED to leave WITH GENEROUS SUPPORT (my emphasis). In other words, those who desire to leave (and probably most would) would be aided by the Israeli government. Presumably that means both giving them monetary gifts and pairing them with countries which will be willing to accept them as immigrants (and there are countries in need of moneyed immigrants). All will be done in accordance with international law.

    As for the charge of advocating a war crime, the key is “excessive in relation to the concrete and direct overall military advantage anticipated”. Thus, if concrete and direct advantage requires it, it is permissible to “cause incidental loss of life or injury to civilians”. It should be noted that in its wars in Iraq and Afghanistan the US caused the deaths of many innocent civilians yet no one was prosecuted for war crimes.

  2. There is truly nothing right-wing apologists for Israel won’t defend.

  3. The paragraph “Ultimatum” (not cited by Prof. Heller) states to me that before the big offensive a separation of hostile noncombatants and non-hostile noncombatants will occur, with the non-hostiles going to Sinai apparently on a temporary basis. Does Feiglin allow a non-hostile noncombatant to remain in Gaza and enjoy (if that is the right word) the rights conferred by the laws on international armed conflict?

    In the paragraph headed “Elimination”: “The enemy population that is innocent of wrong-doing and separated itself from the armed terrorists will be treated in accordance with international law and will be allowed to leave. Israel will generously aid those who wish to leave.” Does this mean that those non-hostile noncombatants who do not wish to leave will be allowed to return to their homes in Gaza?

  4. On Facebook, Steve Shiffrin asked an intriguing question: “I am curious why the incitement to ethnic cleansing is not also a crime. The claim that it is less serious than incitement to genocide should speak to the punishment, not to the liability.”

    I’m sure some would readily dismiss this suggestion given that ethnic cleansing is a crime against humanity distinct from genocide. In addition, there appear to be not a few legal folks who remain unhappy with an inchoate crime such as incitement to genocide in international criminal law. Nonetheless, Larry May, in his book, Genocide: A Normative Account (CUP, 2010), has argued for NOT singling out genocide as the “crime of crimes” and including it rather under the category of “crimes against humanity,” which of course includes ethnic cleansing. At the same time, he would expand its scope to include cultural genocide and ethnic cleansing in such a re-conceptualization. This suggests, I think, that incitement with regard to ethnic cleansing would in some cases possess similar if not identical moral and legal warrant. Interestingly, Elihu Lauterpacht argued in the case of Bosnia that “ethnic cleansing was a form of genocide because the intent was to destroy at least a part of a group, namely, that part that resided in a certain locale.” May, in discussing Lauterpacht, contends (contra William Schabas) that some acts of ethnic cleansing (with appropriate intent) are in fact indistinguishable from genocide, at least when they satisfy the actus reus element of the crime. (And I’ve not done May’s argument justice, as it treated in an entire chapter, and then some.)

    Well, there’s much to think about. Apart from May, are there other international legal scholars or practitioners making the same or similar argument(s)?

  5. At Facebook Steven Shiffrin asked an intriguing question: “I am curious why the incitement to ethnic cleansing is not also a crime. The claim that it is less serious than incitement to genocide should speak to the punishment, not to the liability.”

    Shiffrin’s comment might be dismissed out of hand simply because of the distinction between genocide as the putative “crime of crimes” and ethnic cleansing (distinguished as a crime of humanity). Moreover, I suspect there’s more than a few folks in the international criminal law community who remain unhappy with the inchoate crime of incitement (to genocide) in ICL. Yet Larry May has provocatively argued, in Genocide: A Normative Account (Cambridge University Press, 2010), that we should not single out genocide as the “crime of crimes” and rather include it under the category of “crimes against humanity,” which of course includes ethnic cleansing. At the same time, he would then further expand its scope to include cultural genocide in this re-conceptualization. This suggests, I think, that incitement with regard to ethnic cleansing might on occasion possess similar if not identical moral and legal warrant as it does now with genocide. Interestingly, Elihu Lauterpacht argued in the case of Bosnia that “ethnic cleansing was a form of genocide because the intent was to destroy at least a part of a group, namely, that part that resided in a certain locale.” May, in discussing Lauterpacht, contends (contra William Schabas) that sometimes the acts of ethnic cleansing (with appropriate intent) are in fact indistinguishable from genocide, at least when they satisfy the actus reus element of the crime. (I have not done May’s argument full justice, which takes up the bulk of one chapter and then some.)

    Are there any contemporary international legal scholars or practitioners making the same or similar argument(s)?

  6. Everyone forgets what Hamas and its terrorist allies would do to the Israelis if they could. They have in the past directed murderous campaigns aimed at killing women and children. they publish a map of the Middle East without the state of Israel in it. if the could, they would murder every Israeli man, women and child without hesitation and without guilt.

  7. Avi Keslinger

    “hose who desire to leave (and probably most would) would be aided by the Israeli government?”

    Why not to quote the entire article by MK Feiglin? Reading the comments I get the impression that really Everything can be justified when you have an ideology to support.

    MK Moshe Feiglin – Arutz Sheva:

    Ultimatum – One warning from the Prime Minister of Israel to the enemy population, in which he announces that Israel is about to attack military targets in their area and urges those who are not involved and do not wish to be harmed to leave immediately. Sinai is not far from Gaza and they can leave. This will be the limit of Israel’s humanitarian efforts. Hamas may unconditionally surrender and prevent the attack.

    Attack – Attack the entire ‘target bank’ throughout Gaza with the IDF’s maximum force (and not a tiny fraction of it) with all the conventional means at its disposal. All the military and infrastructural targets will be attacked with no consideration for ‘human shields’ or ‘environmental damage’. It is enough that we are hitting exact targets and that we gave them advance warning.

    Siege – Parallel to the above, a total siege on Gaza. Nothing will enter the area. Israel, however, will allow exit from Gaza. (Civilians may go to Sinai, fighters may surrender to IDF forces).

    Defense – Any 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’.

    Conquer – After the IDF completes the “softening” of the targets with its fire-power, the IDF will conquer the entire Gaza, using all the means necessary to minimize any harm to our soldiers, with no other considerations.

    Elimination- The GSS and IDF will thoroughly eliminate all armed enemies from Gaza. The enemy population that is innocent of wrong-doing and separated itself from the armed terrorists will be treated in accordance with international law and will be allowed to leave. Israel will generously aid those who wish to leave.

    Sovereignty – Gaza is part of our Land and we will remain there forever. Liberation of parts of our land forever is the only thing that justifies endangering our soldiers in battle to capture land. 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. The coastal train line will be extended, as soon as possible, to reach the entire length of Gaza.

    According to polls, most of the Arabs in Gaza wish to leave. Those who were not involved in anti-Israel activity will be offered a generous international emigration package. Those who choose to remain will receive permanent resident status. After a number of years of living in Israel and becoming accustomed to it, contingent on appropriate legislation in the Knesset and the authorization of the Minister of Interior, those who personally accept upon themselves Israel’s rule, substance and way of life of the Jewish State in its Land, will be offered Israeli citizenship.

  8. Cohen@ actually everyone forgets that Hamas is a product of a violence inflicted on a population composed mainly by refugees whose families were kicked out and transferred by bus from al-Jura, Najd and Majdal, the city that today you call Or HaNer, Sderot and Ashkelon (The latter was a Cananite city that included in his area also Majdal).

  9. “Interesting” to take Feiglin’s despicable proposition which will never be implemented by Israel so seriously as to run a quick legal analysis of it. This is a straw man to show, I guess, that Israel intends to or is committing war crimes.

    Hamas on the other hand does what it advocates and tries to kill in whatever disgusting way. The shock of the Abu Khdeir murder was that Israelis did what Hamas has done and tries to do ever day (and Israel has arrested suspects).

    And why is Hamas a “product of violence inflicted” and not part of (and really a father to) the terrorist wave across the Middle East that is Hamas, ISIS, Hezbollah, Al Qaeda… ? The Palestinians and Hamas have no responsibility for their choices and actions?

  10. Feiglin’s despicable proposition is far from isolated and Feiglin is part of the ruling party and deputy speaker of the knesset.

    Perhaps it will never be implemented, although Palestinian refugees would not be so sure, but Israel’s policies in the West Bank and Gaza do not leave much space to optimism in this respect.

    To me, there is not any particular shock about the Abu Khdeir murder: 7 palestinian teens have been killed, perhaps in a less brutal way, in the 2 months before. One of many possible videos: https://news.vice.com/article/video-shows-moment-palestinian-teens-were-shot-dead-in-the-west-bank

    If you want to know how many civilians have been killed by the 2 sides: http://www.btselem.org/statistics/fatalities/after-cast-lead/by-date-of-event

    The Palestinians and Hamas do have responsibilities, but be careful to put on the same level a population under occupation since decades and a State that continue to provide funds to new settlements and to oppress millions of “others”.

  11. As for “why is Hamas a ‘product of violence inflicted’ and not part of (and really a father to) the terrorist wave across the Middle East that is Hamas, ISIS, Hezbollah, Al Qaeda… ?,” the following works explain precisely why such a reductionist description of Hamas as a political movement and organization is untenable and unhelpful in the understanding of its evolving ideology and behavior:

    • Bröning, Michael. The Politics of Change in Palestine: State-Building and Nonviolent Resistance. London: Pluto Press, 2011. (contains an excellent chapter on Hamas)
    • Caridi, Paola. Hamas: From Resistance to Government. New York: Seven Stories Press, 2012.
    • Gunning, Jeroen. Hamas in Politics: Democracy, Religion, Violence. New York: Columbia University Press, 2009.
    • Mishal, Shaul and Avraham Sela. The Palestinian Hamas: Vision, Violence, and Coexistence. New York: Columbia University Press, 2000.
    • Roy, Sara. Hamas and Civil Society: Engaging the Islamist Social Sector. Princeton, NJ: Princeton University Press, 2011.
    • Tamimi, Azzam. Hamas: A History from Within. Northampton, MA: Olive Branch Press/Interlink, 2007.

    I’ve also discussed in summary form several reasons in a post from several years ago here: http://www.religiousleftlaw.com/2010/09/hamas-terrorism.html

    It is important to historically and comparatively examine resistance, nationalist, and revolutionary groups and movements that have resorted to terrorism but over time abandoned such violent tactics in the course of their struggle (as did Fatah and the PLO), often because they were afforded the opportunity to bargain, negotiate, and participate in conventional political processes and institutions (this may coincide with a recognition of futility with regard to such methods). Jihadist Islamist movements are no exception to this rule or generalization, as can be seen Omar Ashour’s study, The De-Radicalization of Jihadists: Transforming Armed Islamist Movements (Routledge, 2009).

    Incidentally, one should not ignore the fact that Zionists fighting to establish the state of Israel employed terrorist methods as well. Nor should one set aside “terrorist waves” that emanate from nation-states.

  12. Hamas is the ruling party in Gaza. Israel evacuated the Gaza settlements in Sept 2005. The blockade was instituted after Hamas took over Gaza in a civil war with Fatah and began using Gaza to stage rocket attacks and other attacks on Israeli civilians. The argument that Gaza is occupied and Hamas can’t help itself but to launch rockets is myopic. And maybe if Gaza set a different example for Israelis (a majority of whom are pro-2 state solution) we’d be a lot closer to a resolution re the West Bank.

    I’m not claiming that Israel is doing everything right; but Hamas is mostly responsible for the high civilian casualty rate by using human shields, schools, hospitals, ambulances, homes, etc. to launch rockets, build tunnels, fire missiles. Israel still has a responsibility to distinguish and act proportionally, but Hamas is responsible for making every part of Gaza a reasonable target, and therefore in many instances the lopsided civilian casualty rates.

    That is why using human shields is a war crime. Because even if a responsible army attempts to abide by all the laws of war a response will still likely lead to civilian casualties.

    Not to mention that in this current conflict Israel has accepted ceasefire agreements every time they’ve been proposed; Hamas is the aggressor in every instance, violating even humanitarian truces. They started this because their people murdered 3 teenagers and they didn’t like their operatives in the West Bank being arrested.

    Look, at the end of the day, you can be pro-Israel or pro-Palestinian – that’s an ethical, moral, political choice. But if this argument is about the law and the law of armed conflict – the rules of war are the rules of war – they are not rules that make using force impossible/immoral when you’re civilian population is being deliberately targeted. They are rules meant to decrease civilian misery on each side.

  13. I’ll just add to Alex and point out that the fact that Feiglin is deputy speaker means nothing. After all, there are eight deputy speakers of the Knesset, including Ahmad Tibi (probably the most remotely close Member of Knesset to representing the State’s views). Furthermore, one of the most well known facts of Israeli politics is that the Likud establishment wants Feiglin out of the party, and the only reason he is in the party is because of the way the election system works.
    Finally, if one is to argue that Feiglin’s remarks are far from isolated, please demonstrate why. In every society there are those with extreme opinions and the media likes to focus on them. Yet, this does not provide a basis for arguing that “all too common”.

  14. “Hamas is the aggressor in every instance, violating even humanitarian truces.”

    It was Israel that gagged journalists, lied to the public, and used the pretext of searching for three boys whom they knew were already dead to kill nearly a dozen members of Hamas (which all the available evidence indicated had nothing to do with the murders), thereby leading Hamas to launch rockets. So you have an interesting definition of “aggressor.”

  15. Who are the nearly dozen members of Hamas were killed before the rockets were fired? I’ve read reports from Palestinian media that up to 6 Palestinians were killed during the various operations, protests, etc. (including 2 heart attacks) while Israeli security forces looked for the boys’ murderers – none Hamas members. Israel arrested hundreds…

    Even still, why is a security gag order during the investigation into the kidnapping and killing of 3 boys a “pretext” or a “lie.”

    As an expert in international criminal law and perhaps humanitarian law, why is the arrest of Hamas members who the state believed perpetrated the murders, applauded the murders, and did not deny the murders, a justification for firing rockets at civilians?

    On 3 July 2014, the Israeli Air Force conducted 15 air strikes in Gaza directed at Hamas targets in response to the rocket attacks – no deaths were reported. Why is this a priori an illegitimate response to rocket fire?

    I wrote “Hamas is the aggressor in every instance” – yes, they murdered and applauded the murder of teenagers; they fired rockets at Israeli civilians in response to arrests; after Israel reacted to the rockets, Israel offered calm for calm, got more rockets; Israel accepted the Egyptian cease fire, still more rockets; Israel and Hamas agreed to a Red Cross plea for a humanitarian truce, and Hamas started to fire immediately after it went into effect.

  16. “Israel offered calm for calm”: you continue to provide red herrings.

    After the 2012 cease fire was implemented, Hamas did not launch rockets on Israel for 18 months.

    http://thehill.com/blogs/pundits-blog/international/212793-israels-gaza-illusions?utm_source=Al-Shabaka+announcements&utm_campaign=5b4e70d5ce-Policy_Brief_Announcement+7_19_2011_PA&utm_medium=email&utm_term=0_a9ca5175dc-5b4e70d5ce-416228769#ixzz38BCrGDQA

  17. “Hamas is the ruling party in Gaza. Israel evacuated the Gaza settlements in Sept 2005″ …

    In 2005, a few months before a stroke put him in a permanent coma, Sharon removed 7,000 settlers from Gaza, and simultaneously settled tens of thousands of others in settlements across the West Bank
    Unlike his many fans believe, Sharon had not turned to peace. The wall and the evacuation of the ground settlements in Gaza are parts of the same national security logic of unilateral solutions that the settlements were – perpetuating and intensifying animosity and violence, rather than undoing them.

    But I appreciate that you see that “I’m not claiming that Israel is doing everything right”: it is so nice from you and so well balanced. KolHaKavod.

  18. The civilian population that is “being deliberately targeted” is the palestinian one: just live in the West Bank or in Gaza for a few months, or even weeks.

    When you place a million and a half people in the world’s largest concentration camp with no exit, bomb them at will, shoot them at will, place them under a terrible siege, destroy their water and sewage systems what do you expect? Do you expect the people of Gaza who were expelled from their homes in Palestine to love those who expelled them and brutally occupied them for years? Do you know that Sderot was built near the ruins of the village of Najd, one of the more than 400 villages destroyed by Israel after 1948. Some of the people in Gaza once lived in Najd before Israel expelled/ethnically cleansed them into Gaza.

    I don’t like Hamas and I wish that there was no Hamas but the birth of Hamas has to be laid right at the feet of the Israeli occupation. There was no Hamas until after 20 years of brutal occupation had passed. During those two decades Israel demolished thousands of Palestinian homes, jailed, deported or killed hundreds of Palestinians, built illegal settlements that took the lion’s share of the water of the West Bank aquifers. Did the Israeli occupiers expect the Palestinians to take their terrible treatment forever? DId they expect them to accept being occupied forever? If they did they were either fools or evil.

    Maybe you don’t remember that when Palestine was occupied by the British, Jewish terrorist groups, Irgun and Stern Gang, were formed to fight not only the Brits but also the Arabs. British soldiers were attacked, bombs were placed in Arab markets and Arab theaters, the King David Hotel was bombed while peace mediator Count Folke Bernadotte was assassinated.

    Occupation and terror from occupiers breeds resistance and, unfortunately, the people of Israel living under the mostly ineffectual rockets from Gaza are also the victims of the Israeli occupation.

  19. There have been plenty of rocket attacks from Gaza in 2013 and 2014. See below:

    http://www.shabak.gov.il/English/EnTerrorData/Reports/Pages/default.aspx

    Of course we cannot be sure who originated the rockets. Israel is responsible for attacks from the area it controls. Why must we assume Hamas was not responsible? I say they are responsible for what gets fired out of the area they control.

  20. Hamas does not have the degree of “control” in Gaza that you imagine, certainly nothing corresponding to the control Israel maintains over the IDF, etc. On occasion its own armed wing has acted in (intentional or otherwise) defiance of its leadership. Challenge to its rule and authority by armed and more militant Salafist groups is not uncommon, movements like Jund Ansar Allah, Jam’at Jaysh Al Islam, Al Tawheed Wa Al Jihad, and Jund Allah, all thought to be loosely incorporated into the Jaljalat group. As Michael Bröning has pointed out, to the degree Hamas proves itself a capable behaving as a de facto state actor, there is more “room for manoeuvre for more radical forces such as the Salafists,” not unlike at least one of the reasons Hamas itself increased in popularity vis-a-vis Fatah, the PLO, and the West Bank PNA. And given Israel’s penchant for assassinating its leaders, one can only imagine such control as it has only diminishing in power.

  21. Yes, exactly. There were 63 rocket and mortar launchings from Gaza in 2013. This can be obtained from the shabak website:. Here is the specific page:

    http://www.shabak.gov.il/English/EnTerrorData/Reports/Pages/2013AnnualSummary.aspx

    The news article from the Times of Israel contains the following: “While Israel has maintained it holds Hamas responsible for all rocket attacks, officials have said that smaller groups, such as Islamic Jihad, are usually behind the rocket attacks, while Hamas squads generally attempt to thwart the rocket fire.” As I wrote, I likewise hold Hamas responsible for everything that goes on in its territory, as I wrote before.

    The link to the Jerusalem Fund does not prove any kind of cause-and-effect demonstration. It does tell me there is nothing corresponding to the shabak reports on the Gazan side. I should think that Hamas would provide such information, if that would help its case.

  22. Would you expect that million of human beings, mainly refugees, remain completely silent and calm so that you can continue to build settlements and mantain the siege?

    A population mainly composed by refugees expelled by israel is suffering a brutal siege that keep control on almost every aspect of their life (form demographic registries to the gas in front of their see). Despite this and the fact that, as showed in this article by Jerusalem Fund, Israel continued to violate various truce, Hamas succedeed to prevent almost completely the use of missiles.

    B’tselem, citing the Israeli Shin Bet, notes that nearly 14,000 projectiles were fired from Gaza from 2005 to 2013. UN OCHA noted that Israel fired about the same number of artillery shells into Gaza in 2006 alone.

    You are on the wrong side of history, the side of the oppressor. Next life you could be part of the oppressed ones.

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