Like all of these previous comments, Smotrich’s statements from last week about the pogrom in Huwwara can only be construed as a direct and public incitement to commit genocide against the Palestinian people. According to article 3(c) of the Convention on the Prevention and Punishment of the Crime of Genocide, and according to the judgments of the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY), in terms of the mental element necessary for the crime of “incitement” to commit crimes against humanity and genocide, the instigator must act intentionally, that is, there must be an intention to provoke or cause to commit the crime, or at least awareness of the likelihood that committing a crime will be a possible result of his actions.
The Convention on the Prevention and Punishment of the Crime of Genocide establishes on state parties the obligation to take measures to prevent and to punish the crime of genocide (article 1), including by enacting relevant legislation and punishing perpetrators, “whether they are constitutionally responsible rulers, public officials or private individuals” (article 4).
That obligation to “prevent” genocide, in addition to the prohibition not to commit genocide, has beenconsidered a norm of international customary law and therefore binding on all states, including the US… As detailed above, Smotrich, in my opinion, appears to support genocide and the full denial of human and civil rights recognised in international law of those he sees as “enemies”. Under these circumstances, he should be sanctioned in accordance with article 3(b), including inadmissibility to the US and the blocking of his property.