Attorney General Yehuda Weinstein decided two weeks ago that Prime Minister Benjamin Netanyahu’s call to his supporters last Election Day to come out and vote because the “Arabs are streaming in droves to polling stations” does not constitute incitement to racism and does not warrant filing criminal charges against him, sources told Haaretz.

This decision was delivered to Rishon Letzion resident Dr. Harel Primak almost eight months after he filed a complaint against Netanyahu for violating Section 144 in Israel’s penal code, which prohibits spreading racist incitement. Although every legal matter connected to Netanyahu and his family is brought to the attorney general for approval, the current ruling was signed by the deputy state prosecutor for special cases, Amit Iceman.

In his letter to Primak, Iceman mentions Netanyahu’s appeal to his voters on March 17 in a video clip, by phone and on the Internet. Iceman says Netanyahu “called on supporters to vote due to the wide extent of voting among Israeli Arabs.” In fact the words used by Netanyahu, not quoted by the deputy state prosecutor, were harsher, relying on the apposition of “Arabs” and the “defense of Israel,” as well as using terms employed by the army during emergency mobilization: “the rule of the right is in danger. Arab voters are streaming in droves to polling stations. Leftist NGOs are bringing them in buses. We don’t have a V-15 [activist group for the opposition], we have only a ‘Tsav 8’ [emergency military call-up]. We only have you. Go vote, with God’s help and yours we’ll establish a national government that will defend Israel.”

According to Primak, these remarks cast suspicions on Netanyahu of incitement to racism, since this is defined as “persecution, humiliation, contempt, exhibiting animosity, hostility or violence, or evoking a dispute with a specific public or a portion of it, due to color, race or ethnic-national affiliation.”

Iceman determined, with the support of Weinstein and State Prosecutor Shai Nitzan, that “Netanyahu had no ‘intention’ of inciting to racism, leading to a decision that there was no cause to launch a criminal investigation.” Examining Netanyahu’s words “shows that they do not appear to constitute an unlawful incitement to racism” wrote Iceman, without explaining why this reply required so many months if the matter is so simple.

Expression of remorse

While the full text of Netanyahu’s words is not quoted by the state prosecution, Iceman takes the trouble to quote in full Netanyahu’s expression of remorse, a week after these words seemed to served him well in the elections. “Our investigation showed that Netanyahu hosted representatives of the Arab, Druze and Circassian communities.” The Druze and Circassians weren’t included in Netanyahu’s warnings on Election Day but Iceman quotes Netanyahu’s self-congratulation for “the enormous investments in minority communities,” telling his guests, “I know my words insulted Israel’s Arab population. I had no intention of doing that. I’m sorry.”

“These words were posted on the prime minister’s official Facebook page that day,” says the deputy state prosecutor, lauding the rapid expression of remorse and wide scope of its publication, which came after the fact.

To maintain balance between freedom of expression and prohibition of incitement, the state prosecution usually avoids filing charges when people express their remorse, but there is no precedent for an expression similar to the one made by Netanyahu, which was aimed at achieving immediate results, with a later apology having no practical significance.

Furthermore, the prosecution employs selective enforcement when it comes to praise for terrorists killed during attacks they carry out. It took a very forgiving attitude when it came to people who praised Baruch Goldstein, who massacred 29 Muslim worshippers in the Tomb of the Patriarchs in Hebron, but has charged Palestinians who praised people who stabbed or otherwise attacked Israelis.

While waiting for a response, Primak was told his complaint was being handled by the deputy attorney general for economic affairs, Avi Licht, who is one of the contenders for the post of attorney general. The state prosecutor clarified that Licht is not involved in this case and that the earlier information was erroneous.