“You will have one standard for stranger and citizen alike” (Leviticus 24: 23)

The Enforcement Policy of the Offences of Incitement to Racism and Violence in Israel

The Israel Religious Action Center (IRAC) has worked for many years to advance freedom of religion, social justice, equality and religious tolerance in Israel. At the beginning of the 2000s, IRAC has focused on eradicating racism from Israeli society, and in this framework began to monitor incitement to racism – specifically incitement voiced by rabbis and others public figures who use Judaism to call for discrimination and demeaning behavior towards non-Jews. IRAC’s work is informed by the spiritual energy and humanist worldview of the Reform Movement, including: “Beloved is the man because he is created in the image [of God]” (Mishneh, Pirkei Avot 3:14), respect and dignity for all people as they are, and equality between all people.

In Israel, a troubling trend of increased racist incitement and incitement to violence has been evident for years, both by Jews against Arabs and by Arabs against Jews. Severe expressions of incitement to racism and violence are frequently posted on social media, which serve as the main and most significant arena for incitement. Such posts have a potential to be widely distributed – and greater potential to broadly spread hatred and even lead to physical violence.

The incitement is often voiced by public figures, including publicly elected officials such as government ministers, members of Knesset, and religious leaders, including rabbis who are employed by the State. The Jewish religious leaders publish hate speech and incitement to racism under the guise of religious content, and thus often successfully escape prosecution.

The criminal offenses of incitement to racism – and more recently, incitement to violence – were added to the Penal Code following Rabbi Meir Kahane’s election to the Knesset in 1984. These legislative amendments, which were added alongside the amendment of section 7a of the Basic Law: the Knesset – which allows the disqualification of candidates to Knesset because of incitement to racism, prove that the Israeli parliament marked the racism and incitement to racism, as a negative social phenomenon which must be rooted out, and gave the law enforcement authorities the tools – including the penal code - necessary for its eradication.

Considering the importance of freedom of expression, and considering the fear of the chilling effect filing indictments for incitement might have on free speech,  indictments for incitement requires the approval of the Attorney General.

After over two decades – during which IRAC has filed dozens of complaints of incitement to racism and violence with the State Attorney, the Attorney General, and the Israeli police – our conclusion is that the policy regarding criminal enforcement of these offences is too restrictive when it comes to Jewish inciters. This thwarts the legislature’s intent to eliminate the trend of incitement to racism and violence, in a way that allows many inciters to continue to incite without being held accountable for their actions.

This report surveys the law enforcement policies regarding incitement to racism and violence between the years 2014-2021.

Our findings show discriminatory enforcement based on nationality - with Arab inciters being indicted while Jewish inciters seldom are. Also, enforcement is usually toward private individuals rather than public figures and rabbis are in effect immune and are not indicted at all (the few instances that have led to indictment filed against rabbis were a result of Supreme Court petitions). The findings also testify to the inadequate way complaints of incitement are handled, often characterized by procrastination and foot dragging in cases of Jewish inciters.

The following are the main findings included in the report:

Cases which led to indictments:

• Nationality of the defendant – Out of 106 indictments filed for the offences of incitement during the period of the report, approximately 23% of cases opened were against Jews, while approximately 77% of cases opened were against Arabs.

• Status of the defendant – most of the indictments filed were against private individuals, and not public leaders. Out of 106 cases opened during the period of the report, only 7 dealt with indictments against people of high status and public influence, including religious leaders. Out of these people, we can name 5 Muslim clerics (Haled Mugrabi, Omer Abu Sara, Ra’ad Salah Mahagne, Kamal Hativ, and Yusuf Albaz, who were convicted of incitement to racism and/or violence for sermons they gave on the temple mount or in Wadi Joz). The two indictments that were filed against Jewish leaders were filed because of IRAC’s Supreme Court petitions (Rabbi Yosef Elitzur, who was convicted of incitement to racism for articles he published; and Ben-Zion Gopstein, the head of racist hate group Lehava, who was indicted for incitement to violence, racism, and terror for his expressions against Arabs, the legal proceeding against Gopstein have not yet concluded).

• Duration of investigation – the length of time between committing the crime and filing an indictment is significantly shorter for Arab inciters. An indictment was filed against 51% of Arab inciters within one month and against 22% between one month -two months. However, when it comes to Jewish inciters, in 42% of cases, the time between the crime and the indictment was between one and two years, and in 21% of cases between two to six years.

• Conviction or acquittal - 97% of cases in which an indictment is filed against Arabד end in conviction, while the rate of conviction of Jews stands at 68%, a rate lower than the general conviction rate regarding criminal conviction in Israel (which was 85% in 2020).

• Punishment level – 54% of convicted Jews do not serve time in prison but are rather sentenced to community service), compared to only 1% of Arabs who do not serve time in prison.  The rate of convicted Arabs who serve 7-11 months in prison is 59%, compared to 25% of Jewish convicts.

Cases which did not lead to indictments:

During the period of this report, IRAC sent 114 inquiries requesting criminal investigations be opened for incitement to racism and/or incitement to violence, yet investigations were only opened in 15 cases, and in 13 of those 15 cases it was decided to close the case and not to file an indictment; only 2 inquiries led to filing an indictment against Jewish inciters – and this was only because IRAC petitioned the Supreme Court (in the case of Rabbi Yosef Elitzur and Ben-Zion Gopstein). 42 of the inquiries were answered in the negative, most with the claim that the elements of the crime are not fulfilled and/or due to evidentiary difficulties. Regarding 17 inquiries, we have yet to receive a response. As of the date this report was published, 40 inquiries are still under examination.

The average time between submitting IRAC’s inquiry with the State Attorney’s office until reaching a final decision in the case is approximately ten months. In response to 12 inquiries, the final decision was received only after 1-2 years, and in response to four inquiries, the final decision was received after 2-3 years, and there is one inquiry to which we received a final decision after 6 years.

Out of 40 inquiries still being handled to which we have yet to receive a decision – 19 inquiries have been waiting for a response for over three years, and 17 inquiries were not answered at all by the State Attorney; some of which were filed in 2014(!).

This report also examines the reasons given by the State for its decision to refrain from filing an indictment for incitement, and shows that the reasons are unpersuasive and are not consistent with the language of the law and the purpose of the offenses – to protect people’s dignity and to handle expressions of incitement before they lead to actual violence. The report also criticizes the narrow enforcement policy applicable to incitement based on Jewish law, despite the fact that according to the law, citing religious texts done with an intent to incite to racism is punishable like any other incitement.

This report also points out the procrastination of the State Attorney in handling the offences of incitement and states that by avoiding to make a decisive and quick response to incitement by filing indictments quickly violates the rule of the law, legitimizes incitement and leads to inciteful, racist, and violent discourse becoming the norm; it can also lead to evidentiary difficulties because of lack of availability of evidence when too much time has passed.

The Supreme Court decision which accepted IRAC’s petition to disqualify racist candidates from running for Knesset in 2019, included important remarks which should guide the State Attorney and the Attorney General in fighting incitement to racism without compromise, as it is completely contrary to the fundamental values on which the State of Israel was founded. “The value of the State of Israel as a Jewish and Democratic country instructs us to act decisively and without compromise to eradicate the racism from within us,” the Supreme Court stated, and emphasized that “racist discourse, especially if it is systematic, significant, and ongoing, causes this social disease to permeate, take root, and spread. Therefore, an unequivocal and clear message is required, according to which racist and inciteful discourse is not legitimate.”

The report includes various recommendations for how to handle the current situation, including:

• Legislative amendments, which will expand the existing offenses and provide additional tools beyond criminal enforcement to handle the issue, such as civil and disciplinary enforcement.

• Changing enforcement policies: Providing a more expansive interpretation of the offences, equal enforcement regardless of race, religion, nationality, or status of the inciter, and establishing a reasonable timeline for handling complaints of incitement.

• The publication of guidelines regarding how law enforcement should handle complaints for a more effective process, and the appointment of a designated officer in the police to handle offences of incitement.

• Including issues of shared society and the struggle against racism into the school system. The Ministry of Education committee on the topic of “living in partnership” – in which IRAC took part – has recently finished its work on this topic.

The report concludes with a quote from the Chief Justice of the Supreme Court from the decision disqualifying racist candidate Michael Ben-Ari from running for Knesset in which she quotes Albert Memmi’s book “Racism”:

“And if, according to Memmi, we as Jews are commanded to be the arrowhead in the long, uncompromising battle against racism – of which Anti-Semitism is one of its oldest and most difficult manifestations – it is our responsibility to be worthy of leading this battle and it is our responsibility to eliminate the dangerous scourge of racism from our midst in the sovereign State of Israel. This is a long struggle that requires persistence, and as Memmi warns, ‘we are all in a sense a soil ready to absorb and grow the seeds of racism if we forget to guard ourselves even for a moment’

“It is impossible to be merciful towards racism, you don’t invite a monster into your home, even – and especially not – in disguise… Coming to terms with the racist world, even a little, means supporting fear, injustice, and violence; it means coming to terms with the continued presence of the darkness of history in which we still live; it means coming to terms with the foreigner as a possible victim. (And who among us isn’t a foreigner somewhere?) … The anti-racist struggle, the difficult, always dubious struggle, is after all one of the introductory chapters to the transition towards becoming a human.”