The November 1995 assassination of Prime Minister Yitzhak Rabin is considered by many to be a watershed for the Israeli society. The nation recognized that it wasn’t immune to political violence, shaking the confidence of the citizens. Strangely enough, the assassination had been preceded by acts of political violence but law enforcement agencies refused to conciliate their policies and prosecute persons behind the incitement. This failure is now attributed primarily to fear that such prosecution would lead to courtrooms being turned into public grounds for inciters. However, because most people regarded the assassination to be result of the public incitement, post the assassination a stream of charges were pinned against people whose actions did not warrant any legal action. This was made possible by the overtly wide definition of what constituted the offense of sedition.
The offense is prescribed in the 1977 Penal Code and is a relic from the British Mandate period in Israel. Article 133 to Article 138 of the Penal Code lay down the substantive provisions for sedition.
Where Article 136 reads, “‘sedition’ means: (1) to bring into hatred or contempt or to excite disaffection against the State or its duly constituted administrative or judicial authorities; or (2) to incite or excite inhabitants of Israel to attempt to procure the alteration otherwise than by lawful means of any matter by law established; or (3) to raise discontent or resentment amongst inhabitants of Israel; or (4) to promote feelings of ill will and enmity between different parts of the population.”
The offense states that a simple recitation of forms of behavior considered damaging in a society under a non-democratic regime is seditious. The object of the law was to repress criticism of the government. The current interpretation of sedition laws in Israel, is tailored to fit exigencies of that time. Therefore, there is a serious need for reassessment of the offense.
In light of the above, activists have been pushing for Israel to legislate an offense of public incitement. In formulating this law, due weightage must be given to the importance of freedom of speech and expression. Any deviation must be able to satisfy the theory of competing state interests. This view has been supported by the Israeli Supreme Court itself. The Court recognizes that the freedom of expression is one of the most basic and important rights of the individual for the formulation of opinions and personal development. More importantly, it recognizes that legal limitations of this right do not do away with the need to deal with public incitement in social and cultural spheres. In fact, it suggests quite the opposite. Public incitement may be dealt most effectively on social and educational fronts. When this isn’t done, the legal system and politicians are obliged to condemn acts of violence arising out of the same.
The main danger of this prohibited behavior is the creation of a psychological atmosphere conducive to crime and the de-legitimization of democratic order. Social values sought to be protected are public trust and a sense of security. Praising a crime that has been committed constitutes indirect public incitement to commit a similar felony; it is therefore essentially similar to public incitement. The prohibition against publishing words of praise, identification, or support regarding a successfully committed felony is currently found in Section 4 of the Prevention of Terrorism Ordinance. This hasn’t been viewed as a proper channel given that it deals primarily with the actions and related activities of terrorist organizations. Therefore, the apt location for sedition laws is in the Penal Code, adjacent to the offense of public incitement which both seek to curb the same object. Finally, the probability test for evaluating the threat to public peace is not an appropriate one for justifying penal restrictions on freedom of speech. the opinion of former Attorney General and Supreme Court Justice Professor Yitzhak Zamir should not be adopted. According to Zamir, “verbal violence, even when it poses the threat of ultimately leading to physical violence, is not sufficient for activating the police and the courts … only in extreme cases in which the verbal violence creates a clear and immediate danger to the public peace will the balance of interests tilt in favor of filing criminal charges.”
In view of the desired interpretation the arrest of Israeli Right Wing activist Moshe Orbach must be met positively. The activist faces a 5 year imprisonment for authoring a pamphlet with instructions on how to firebomb Palestinian homes. His conviction in 2005 during the unilateral withdrawal from the Gaza strip by the Rehovot Magistrate’s Court was the first in a decade. His pamphlet titled “The Kingdom of Evil” detailed the specifics for burning down the homes of Palestinians and instructions for establishing Jewish terror cells.
For instance, prospective attackers were asked to “arm themselves with a Molotov cocktail, a lighter, gloves, a hammer or crowbar.” Further, he instructed that in order to bar the residents from escaping, burning tires be left in front of their homes. The objective of such actions according to Orbach went on, was to create the maximum number of casualties possible. The pamphlet was confiscated by a special unit dealing with nationalistically motivated crimes. However, Orbach was only arrested following an arson attack at a Church of the Multiplication of the Loaves and Fishes displaying a nexus with the pamphlet. Therefore, there was no need for the application of the probability test as a clear incitement and disruption of public order entailed from the issuing of the pamphlet.
However, the Israeli government filed no charges against the author of another popular publication, which explains why Jews should murder non-Jews. The Israeli High Court backed the Attorney-General’s decision not to press charges against the authors of The King’s Torah, which uses religious arguments to justify the killing of even non-Jewish babies. The authors, Rabbis living in a Jewish-only West Bank settlement, were paid state salaries when they penned the tract.
While Jewish Israelis convicted of attacks against Palestinians are often rapidly rehabilitated and sometimes even welcome in the presence of top government officials, unfortunately, Palestinians who carry out attacks on Jewish Israelis are not extended those privileges. Some are not even granted the right to legal trial, as Israeli security forces decide to neutralize them with lethal force with increasing frequency. Regardless of the reasons for the attacks, Israel is required to subdue all assailants with the minimum amount of force necessary, and bring them before a judge to account for their actions. That legal requirement is not being uniformly followed, however, and even more worryingly, the calls to actively ignore it are increasing in volume.
In fact, in the recent past, many Israeli political and religious leaders have been especially vocal in their support for the use of lethal force against Palestinian attackers. Not to be outdone by hawkish government officials, Yair Lapid, chair of the centrist opposition party Yesh Atid, said in October, “Whoever takes out a knife or a screwdriver or whatever it may be, the directive needs to be to shoot in order to kill. Not to hesitate, there will be full legal backing.”The Defense Forces Chief of Staff Gadi Eizenkot also provoked public backlash when he dismissed calls to abandon the army’s rules of engagement. Eizenkot even added that, “I don’t want a soldier to empty a magazine on a girl with scissors,” referring to an actual incident in which an Israeli officer shot to death a 14-year-old Palestinian girl who had just stabbed two men. A Channel 10 survey conducted in the days that followed found that 47% of respondents disagreed with the army chief’s comments, and that among just Jews, 57% of respondents disagreed. This response of the general populace is specifically disconcerting.
In conclusion, we understand that while the sedition law remains archaic, its interpretation must evolve to keep up with the changing democratic social order of Israel. And though Mosche Orbach’s conviction is viewed in a positive light for it is one of the first instances of the uniform application of Article 133, the law in itself requires to be re-appreciated. As discussed above, Israel’s sedition laws would better serve their purpose as those directed towards public incitement. A penal sedition law itself does not itself help to prevent public incitement at its initial stages. In the meanwhile, educational and social frameworks constitute an effective method of dealing with the phenomenon of public complacency in regard of non-uniform application of sedition laws. It requires the targeting of fundamental societal phenomena of intolerance. Therefore, only a solid socio-educational framework that can ensure the realization of the need to extend the application of penal laws to both Jewish and Non Jewish citizens of Israel will ensure that the present crisis is solved.
 Ilene Prusher, ‘Killing a King’ Examines Assassination of Yitzhak Rabin, available at, http://www.nytimes.com/2015/11/15/books/review/killing-a-king-examines-assassination-of-yitzhak-rabin.html, last accessed on 20th March, 2016.
 Isabel Kreshner, Israeli Justice in the West Bank is Seen to be Often Uneven, available at, http://www.nytimes.com/2015/08/03/world/middleeast/israeli-justice-is-seen-to-be-often-uneven-among-palestinian-cases.html, last accessed on 18th March, 2016.
 The Israeli Penal Code, 1977.
Mordechai Kremnitzer and Khalid Ghanayim, Incitement, not Sedition, available at, http://en.idi.org.il/media/1344438/IncitementNotSedition_PPE3.pdf, last accessed on 18th March, 2016.
 Hareetz Editorial, Israel's High Court Takes Compromised Stand on Freedom of Expression, available at, http://www.haaretz.com/opinion/1.652292, last accessed on 20th March, 2016.
 Supra note 5.
Menahem Kanhama, Author of Jewish terrorism 'handbook' sentenced to two years in jail, available at, http://www.i24news.tv/en/news/israel/diplomacy-defense/106548-160317-author-of-jewish-terrorism-handbook-sentenced-to-two-years-in-jail, las accessed on 18th March, 2016.
Daniel Estren, The King's Torah: A Rabbinic Text or a Call to Terror?, avaiable at, http://www.haaretz.com/jewish/2.209/the-king-s-torah-a-rabbinic-text-or-a-call-to-terror-1.261930, last accessed on 20th March, 2016.
 David Sheen, 5 of the Most Appalling Acts of Incitement From Israel This Week: Top Army Rabbi Dances with Author of Notorious 'Murder Manual', available at, http://www.alternet.org/grayzone-project/5-most-appalling-acts-incitement-israel-week-top-army-rabbi-dances-author-notorious, last accessed on 19th March, 2016.
 Rebecca, The War of the Sons of Light against the Sons of Darkness, available at, http://mystical-politics.blogspot.com/2015_08_01_archive.html, last accessed on 20th March, 2016.