Description

Photos: Published by Haaretz
Law professor Omer Shatz. "As an Israeli, I personally felt how the collective post-trauma of Israeli Jews is activated."

The International Criminal Court in The Hague, Netherlands. Credit: Peter Dejong/AP

Ministers Gvir, Netanyahu and Smotrich.

Destroyed cars at the Nova music festival after the October 7 attack. Credit: Eliyahu Hershkovitz

Prime Minister Netanyahu and General Gallant.

ICC Judges preparing to hear South Africa genocide case against Israel.

Israeli Attorney General Gali Baharav-Miara found "no public interest" in investigating incitement to genocide, following the ICJ ruling. Credit: Olivier Fitoussi

Palestinians walking past ruins following an Israeli airstrike in Khan Yunis, southern Gaza, earlier this month. Credit: Abdel Kareem Hana/AP

Palestinians waiting for food at a distribution center in Khan Yunis earlier this month. Credit: Abdel Kareem Hana/AP

An anti-war protest in Tel Aviv earlier this month.Credit: Moti Milrod
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by Etan Nechin for Haaretz
New York
Jan 24, 2025

Fifteen years ago, lawyer Omer Shatz co-filed a petition in Israel's High Court of Justice against Yoav Gallant – then a general in the Israel Defense Forces – for alleged war crimes in Gaza. "We know you will reject this case, but if you don't intervene, one day, in 10 years or so, this will reach the Hague," he and his colleagues cautioned the justices.

Their prediction came true: Last November, the International Criminal Court issued arrest warrants for Prime Minister Benjamin Netanyahu and former Defense Minister Gallant over alleged war crimes during the Israel-Gaza war.

But Shatz didn't stop there. In December, he filed a 170-page report with the ICC prosecutor's office. Submitted on behalf of a French-Palestinian victim whose identity is being withheld for security reasons, it alleged that eight prominent Israeli officials and public figures are responsible for incitement to genocide.

The report mentions Netanyahu, Gallant, President Isaac Herzog, current Defense Minister Israel Katz, retired army general Giora Eiland, Finance Minister Bezalel Smotrich, National Security Minister Itamar Ben-Gvir and journalist Zvi Yehezkeli.

Today a professor at Sciences Po (aka the Paris Institute of Political Studies) Shatz worked with his students to develop an innovative approach to their filing. Instead of accusing the officials of committing genocide, they focused on what he claims is the distinct crime of incitement to genocide. For over a year, they documented daily statements from Israeli leaders, aiming to establish a pattern of dehumanization and incitement against Palestinians in Gaza.

Speaking from his home in Paris, Shatz explains: "The Rome Statute, which serves as the constitution of the ICC, specifies that prosecuting someone for genocide requires proving the commission or attempted commission of the main crime. This means that to prosecute someone for aiding and abetting genocide, it must be shown that genocide was committed. However, there is one exception to this rule: incitement to genocide. In such cases, there is no requirement to prove that genocide took place."

He explains that the drafters of the Rome Statute had two insights. First, that because genocide involves "a complex interplay of state power and societal normalization of mass violence," the inciters must be prosecuted in order to prevent or terminate genocide.

Portraying every Palestinian as inherently complicit, as a threat, or even as a future terrorist justifies such actions as killing women and children.

Omer Shatz
The second is that since incitement precedes and accompanies the commission of genocide, it must be prosecuted quickly and independently from the crime itself – and before it unfolds. This is why only incitement to genocide can be prosecuted without having to prove the genocide itself, whereas all other modes of perpetration, such as ordering or soliciting the commission of crimes, require showing that the main crime was committed or attempted. Such prosecution is intended to mitigate this risk," he says.

For him in this case, Israel's portraying "every Palestinian as inherently complicit, as a threat, or even as a future terrorist justifies such actions as killing women and children. The lack of distinction between Palestinian combatants and civilians legitimizes sacrificing as many Palestinian civilians as necessary to save a single Israeli soldier. This dehumanization fosters an environment where enablers – those who might not actively participate – allow such crimes to occur, persuaded by rationalizations like 'They started it' or 'It's justified because of X.'"

Shatz argues that genocide is difficult to prove because the required intent is detached from the act. "You need to show the crime was intended to destroy the group as such. In incitement, by contrast, the genocidal intent is manifested in public statements."

Quotes by Israeli leaders brought as evidence of 'Incitement to genocide'
Defense Minister Yoav Gallant, October 9, 2023:
"I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals and we are acting accordingly."

President Isaac Herzog, October 12, 2023:
"It is an entire nation out there that is responsible. It's not true this rhetoric about civilians not aware, not involved. It's absolutely not true. They could have risen up, they could have fought against that evil regime. … But we are at war, we are defending our homes, and when a nation protects its home, it fights, and we will fight until we break their backbone."

Prime Minister Benjamin Netanyahu, November 3, 2023:
"This is the war between the sons of light and the sons of darkness. We will not let up on our mission until the light overcomes the darkness – the good will defeat the extreme evil that threatens us and the entire world."

Energy Minister (now Defense Minister) Israel Katz, October 12, 2023:
"Humanitarian aid to Gaza? No electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter until the Israeli abductees are returned home. Humanitarianism for humanitarianism. And no one will preach us morality."

Giora Eiland, retired IDF major general, former head of the Israeli National Security Council, October 7, 2023:
"This is what Israel has begun to do – we cut the supply of energy, water and diesel to the Strip ... but it's not enough. To make the siege effective, we have to prevent others from giving assistance to Gaza. ... The people should be told that they have two choices: to stay and to starve, or to leave."

Finance Minister Bezalel Smotrich, October 8, 2023:
"We need to deal a blow that hasn't been seen in 50 years and take down Gaza."

National Security Minister Itamar Ben-Gvir, October 17, 2023:
"As long as Hamas does not release the hostages it is holding – the only thing that needs to enter Gaza is hundreds of tons of explosives by the air force, and not an ounce of humanitarian aid."

TV Journalist Zvi Yehezkeli, December 19, 2023:
"The IDF should have launched a more fatal attack with 100,000 killed in the beginning. Yes, there are 20,000 Hamas members. I don't know who was and who wasn't involved. And who is or isn't innocent."

An easily proven pattern?
Shatz, 44, began his legal career in Israel advocating for refugees and migrants, before doing a master's degree at Yale and moving to Paris, where his focus switched to international law. Now serving as legal director at Front Lex, a legal organization defending migrants' rights worldwide, he pioneers innovative cases in international criminal law, holding individuals accountable for migration-related crimes.

The feeling of existential threat, combined with a fundamentalist government, shame and guilt of the security forces, may result in vengeance across the political board.

Omer Shatz
On the morning of October 7, 2023, Shatz watched events unfold live from his home in Paris. He also saw Hamas' attacks as they were being broadcast in Telegram groups. "I was completely shaken, but I immediately realized what was coming. When a neighbor asked what I thought would happen next, I said, 'Now, we risk a genocide in Gaza," he recalls.

"It was rather a psychological observation, not a legal one. As an Israeli, I personally felt how the collective post-trauma of Israeli Jews is activated. The feeling of existential threat, combined with a fundamentalist government, shame and guilt of the security forces, may result in vengeance across the political board."

He believes that Israel's strategy to defend its actions in Gaza by referencing what Hamas did on October 7 backfired, since the attacks highlight a strong motive for retaliation. Courts can use this as evidence to establish intent.

For over a year, Shatz's legal team analyzed Israeli officials' statements within the broader context of Israeli public discourse, emphasizing decades of racist and dehumanizing rhetoric from figures like Ben-Gvir and Smotrich. This pattern, Shatz says, provides critical evidence to establish mens rea – criminal intent.

"Our case shows that Israeli officials' statements meet the legal criteria for direct and public incitement to genocide. For example, Gallant's [October 2023] statement referring to Palestinians as 'human animals' and declaring that 'all restraints have been removed' points to the labeling of civil facilities as military ones and removal of proportionality in military actions.

"Herzog's claim that 'there are no innocents in Gaza' reinforces a blanket justification for targeting civilians," he continues. "These statements, combined with cutting off electricity, water and fuel to Gaza [at the start of the war], create living conditions calculated to bring about the destruction of part of the targeted group – a genocidal act under Article 6 of the Rome Statute. This is what the ICC determined in its decision to issue arrest warrants against Netanyahu and Gallant," Shatz adds.

He explains that the choice of individuals included in the filing was based on the ease of proving their actions and the impact they had on the soldiers on the ground.

"These people repeatedly made statements dehumanizing Palestinians and calling for collective punishment and mass violence. We can clearly see how this rhetoric has trickled down to commanders and soldiers in the field," he charges.

He adds that successfully prosecuting incitement to genocide may pave a way for the subsequent prosecution of genocide.

From the ICJ to the ICC
In December 2023, the International Court of Justice began considering a case brought by South Africa accusing Israel of genocide. While the UN's top court did not rule that Israel was committing genocide, it issued provisional measures after determining that the case met the "plausibility" standard – meaning the Palestinians had the plausible right to protection from genocide. This standard indicated a reasonable risk of harm to the population. The court directed Israel to halt harmful practices and ensure the provision of humanitarian aid.

While the International Court of Justice addresses state responsibility, the International Criminal Court focuses on prosecuting individuals – which Shatz seeks to establish in his filing.

Failure to address war crimes locally results in them being tried internationally: If domestic courts don't act, international courts gain jurisdiction.

Omer Shatz
"Evidentiary standards vary depending on the type of case and the stage of the proceedings," he says. "For instance, if you sue me for slipping on a banana peel due to my negligence, you'd need to meet a threshold of about 50 percent." In criminal courts, like those you see in Hollywood dramas, the threshold for conviction is roughly 95 percent – "beyond reasonable doubt," he explains.

"Our analysis shows that the ICJ's plausibility standard is comparable to or even exceeds the ICC's 'reasonable grounds to believe' – the threshold for initiating investigations or issuing arrest warrants. By comparing these standards, we argue that the evidentiary value of the ICJ's ruling obligates the ICC prosecutor to act."

Shatz argues that this alignment highlights the ICC's vital role in ensuring accountability when states defy ICJ warrant. He emphasizes the ICJ's legally binding order for Israel to punish those responsible for incitement to genocide.

"Unlike other ICJ measures that were more cautiously worded, this order was explicit and left little room for interpretation. Despite this, Israel has failed to comply, offering only 'examinations' of incitement to violence or racism, rather than initiating formal criminal investigations for incitement to genocide under the Israeli genocide law," says Shatz.

He saw the most compelling evidence of defying the ICJ's ruling last November when Israeli Attorney General Gali Baharav-Miara notified the Supreme Court that she decided not to open any investigation against the inciters, citing no public interest.

"Failure to address war crimes locally results in them being tried internationally," Shatz says. "This is in line with the ICC complementarity principle: If domestic courts don't act, international courts gain jurisdiction.

"If Israel had initiated genuine investigations, it could have improved its situation in the ICJ and prevented ICC involvement. Instead, this order is now redirected to the ICC prosecutor, obligating him to do so in Israel's stead," Shatz argues.

The lawyer also pushes back against claims that a state commission of inquiry into the government's handling of October 7 and the war can freeze the ICC proceedings. "At this advanced stage, the only way is to criminally investigate and prosecute the same conducts and the same suspects the ICC prosecutor identified."

According to him, "A general non-criminal inquiry will have no effect on the pending ICC proceedings, since this train has already left the station. Not prosecuting incitement to genocide nationally would result in extending the ICC investigation to include this crime and these suspects in the ongoing ICC proceedings. The ICC prosecutor must comply with the ICJ order."

Action is critical
The filing submitted in December does not have a fixed deadline. "Theoretically, they could let it sit on their desk, like a potted plant. In the case of Afghanistan, for example [allegations of war crimes and crimes against humanity by various actors, including the Taliban and U.S. forces], the proceedings lingered for over a decade," Shatz notes.

Despite the ICC's reputation for inefficiency in such cases, the lawyer believes this case presents a strong argument for it to act quickly. "The facts are undisputed, the evidence is publicly accessible, the legal framework is clear, investigation is already pending, some warrants were already issued, the ICJ findings and orders further support prosecution, and the ICC already found 'reasonable grounds to believe' a potentially genocidal act is ongoing." (Shatz was interviewed before a three-stage cease-fire between Israel and Hamas came into effect on Sunday.)

"The urgency stems from the harm caused by incitement: the risk of genocide. This harm is ongoing, let alone the full impunity the inciters enjoy at the national level," Shatz says. Therefore, "the ICC prosecutor has a duty not only to prosecute past crimes, but also to prevent future or terminate ongoing ones."

One international legal expert who reviewed the filing on Haaretz's behalf believes Shatz makes a strong case for the ICC to investigate incitement to genocide, adding that the Israeli attorney general's lack of action provides strong basis for investigation.

However, they also highlighted challenges: Proving direct incitement, a key legal requirement, may be difficult, and many statements are open to interpretation. While the cases against Yehezkeli, Smotrich and Ben-Gvir appear the strongest, it remains unclear if the required legal elements can be established.

Additionally, they argue, the recent passage of the Illegitimate Court Counteraction Act by the U.S. House of Representatives, which imposes sanctions on the ICC in response to its arrest warrants for Israeli officials, adds another layer of difficulty in pursuing such investigations.

Shatz does not believe this will alter anything regarding the case.

"The broader implications of this case go beyond Israel and Palestine," he says. "Since international law has few and weak enforcement mechanisms, inaction also modifies the law itself, everywhere. This case highlights the importance of enforcing international legal norms and holding individuals accountable for incitement to genocide, particularly in complex political and military contexts.

"Ultimately, this case serves as a reminder of the ICC's role as a safeguard against impunity," he concludes. "By pursuing incitement to genocide as an independent crime, the court can prevent atrocities from escalating and ensure that those responsible for dangerous rhetoric are held accountable. While political challenges remain, the strength of the evidence and the clear legal framework leave the ICC prosecutor little choice but to act."