Liron A. Libman

Freedom of speech or incitement to terrorism?

Gaza children train in weapons-use in the Strip, summer 2021 (Hamas)
Gaza children train in weapons-use in the Strip, summer 2021 (Hamas)

Since the October 7th massacre the Hamas death squads perpetrated in Israeli civilian communities near the border with Gaza, many so-called “pro-Palestinian” statements and rallies were held in campuses and cities around the world. It is legitimate to be pro-Palestinian. It is legitimate to criticize Israel’s government and its ongoing policies in the West Bank. It is legitimate to have concerns over the loss of civilian lives in Gaza during Israel’s military operation following the massacre. However, it is not legitimate to celebrate, glorify, encourage, or justify such heinous acts of terrorism and it should be illegal everywhere in the world.

It is a telling fact that “pro-Palestinian” demonstrations began almost instantly after the October 7th massacre, before Israel’s ongoing military action increased the toll of civilian loss in Gaza and could raise a genuine concern for Palestinian civilians. On the day after the massacre, these demonstrators chanted in New York: “Resistance is justified”, “Globalize the intifada”, and “Smash the settler Zionist state.” Other chanted “700,” apparently referring to the confirmed number of Israeli slaughtered civilians at that time and held up the number seven on their hands while making throat-slitting gestures towards pro-Israeli demonstrators. Can this be interpreted in any other way than as celebrating terrorism?

Freedom of speech is at the heart of liberal democracies. It has a two-folded value: both as an expression of individual autonomy and as a “public good” that creates the “marketplace of ideas” so vital for informed citizens choices. However, this does not mean that freedom of expression is boundless. The International Covenant on Civil and Political Rights, of which the 173 countries are state parties to (including the US, UK, and Russia), clearly stipulates that the exercise of this right “carries with it special duties and responsibilities” needed, among other interests, to respect the rights of others and for the protection of national security and public order (article 19).

Furthermore, in an exceptional article that follows (article 20), the Covenant is not defining a right, but a prohibition: states must prohibit by law “any propaganda for war” and “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. Is it not clear that the chanting in these demonstrations is within this prohibition?

In 2005, the UN Security Council added a call for states to “prohibit by law incitement to commit a terrorist act or acts”.

Indeed, as the UN Human rights Committee stated, such restrictions on speech should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with legitimate expression. States have a margin of appreciation in implementing these International Law obligations in their domestic laws, but having no limitations on demonstrations celebrating genocide that include throat-slitting gestures is outside this scope of discretion. This omission is understood by antisemites as a tacit license to attack Jewish students, Jewish schools, and Jewish airline passengers wherever they are. An attempt to imitate the massacre and “globalize the intifada” as these demonstrators preach was never so imminent. What did Amnesty International have to say about it? It criticized restrictions on “protests defending Palestinian human rights” in Germany and elsewhere in Europe. Perhaps Amnesty should reflect on the reasons why in Germany, specifically, lessons from history caused a firm hand against antisemitic incitement.

Racial or religious hatred does not begin in demonstrations. It starts with flawed education. A specifically shameful role in spreading such hatred is attributed to the UN. UNRWA, the UN agency helping Palestinian refugees, is running many of the schools in Gaza and has ignored consistently NGO’s reports indicating antisemitism and incitement to hate and violence by teaching staff and in school curriculum. How many participants of the death squads burning Israeli families in their homes on October 7th were graduates of schools founded by the UN? Indeed, as UN Secretary General said, the massacre “did not happen in a vacuum“. A good starting point to examine UN facilitation of the atrocities will be appointing an independent commission of inquiry to investigate it. “Never again” are not just empty words in holocaust memorial events, now is the time to start doing something.

About the Author
Colonel (Reserve) Dr. Liron A. Libman served as Chief Military Prosecutor (2005-2008) and the head of the International Law Department in the Israeli Defense Forces (IDF) from 2009 to 2011. Currently, he teaches international law at Sapir Academic college and practices as a lawyer and mediator.
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