by Kenneth L. Marcus
Charles Asher Small, director of Yale's Interdisciplinary Initiative for the Study of Anti-Semitism, tells the story of the reception he received from Rwandan activists at this year's Durban II Conference. As Iranian President Mahmoud Ahmadinejad rose to the
They used this language against your people in the 1940's, they said, and they used it against our people in the 1990's. Why do you not see that
From bitter experience, the Rwandans recognized genocidal intent in the Iranian leader's invective. They could not understand how a people that had its own state, organizations and resources is not able to understand and combat the growing threat that
Broadly speaking, there are three ways Iran's fast-developing nuclear arsenal could be put to use in its confrontation with Israel, the United States, and the West: strategic, political, and geopolitical. Experts often argue that the real danger of an Iranian nuclear weapon has less to do with whether the weapons would be fired, and more to do with how their mere possession would alter the balance of power. This could be true. Yet, if
Ahmadinejad notoriously declared in 2006 that, "
Denying the personhood of the Israeli people, he lectured in 2006 that Israelis are not human beings: "They are like cattle, nay, more misguided." At the same time, he attributes to Jews a diabolical evil: "Next to them," he stated, "all the criminals of the world seem righteous."
Following a pattern of other world historical figures responsible for genocide, Ahmadinejad predicted in 2008 the consequences for the target people: "Thanks to God, your wish will soon be realized, and this germ of corruption will be wiped off the face of the world."
As if to dispel any ambiguities about his intentions, he paraded a Shahab-3 missile through the streets of
The Case for Prosecution
There is a legal significance to Ahmadinejad's murderous charges. Several prominent international human rights lawyers and jurists have urged that Ahmadinejad be prosecuted for incitement to genocide.
Nevertheless, some legal commentators, including genocide scholar Susan Benesch, have observed that it is "highly unlikely" that Ahmadinejad will be held accountable before either the International Criminal Court (ICC) or the International Court of Justice. If this is the case, it is only because Ahmadinejad's conduct has not been sufficiently scrutinized, and because the United Nations' politics is so strongly biased against the Jewish State.
Other prominent commentators, including former Canadian Justice Minister Irwin Cotler and Harvard Law Professor Alan Dershowitz, argue that Ahmadinejad should be prosecuted under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), the Rome Statute of the ICC, and universal jurisdiction statutes. Australian Prime Minister Paul Rudd has made similar arguments.
Most importantly, perhaps, the U.S. House of Representatives passed a non-binding resolution in 2007 by a vote of 411 to 2, urging the U.N. Security Council to prosecute Ahmadinejad for incitement.
The Genocide Convention criminalizes, "direct and public incitement to commit genocide." The Convention defines "genocide" to include, for example, killing, causing serious bodily or mental harm, or inflicting conditions calculated to affect the physical destruction of a group, with "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." Similarly, the Rome Statute of the ICC also prohibits direct and public incitement to commit genocide.
as Precedent Rwanda
Interpreting these statutes is difficult, particularly because there have been few cases applying their terms. However, since pertinent portions of the International Criminal Tribunal for Rwanda (ICTR) statute mirror the Convention and the Rome Statute, the ICTR's cases have been viewed as persuasive authority for interpreting these statutes.
From the handful of major cases applying the ICTR statute, Gordon has demonstrated that an actionable incitement must meet certain criteria. First, the statements in question must be publicly uttered. Second, they must be uttered in a sufficiently direct manner. Third, it must be determined that what was stated can be viewed as actual incitement rather than protected speech. Finally, the statement must have an underlying intent to provoke mass-murder.
Do Ahmadinejad's attacks upon
The Directness Question
In an influential article published in the Spring 2008 volume of the Virginia Journal of International Law, Benesch argued that Ahmadinejad has not committed incitement to genocide. Condemning Ahmadinejad's speeches as "despicable," Benesch nevertheless argues that, "[i]f his statements refer to the state of Israel or the Israeli population rather than to another group of Jews… it seems that he did not commit incitement to genocide, since one cannot commit genocide against a state."
Benesch is a thoughtful scholar-activist, but her argument misses the point that Ahmadinejad's incitement is directed not only at
As William Schabas, director of the Irish Centre for Human Rights, has observed, "The history of genocide shows that those who incite the crime speak in euphemisms." For example, after
Ahmadinejad's audience understands that when he speaks about annihilating
Empty Rhetoric or Spur to Action?
Benesch's faulty argument also posits that if Ahmadinejad's speeches "were directed at the Iranian public, it seems that he did not commit incitement to genocide… since his civilian audience does not have the capacity to commit genocide against the population of
Her argument, however, misstates the function of Ahmadinejad's anti-Israel proclamations. Indeed, they are aimed at developing a public consensus to provide "legitimacy" for genocidal state actions, including the use of weapons of mass destruction, against the Jewish people.
First, Ahmadinejad, as president of a repressive regime, has significant influence over his audience. Second, his audience has previously been subjected to hate speech. Indeed, Ahmadinejad is not ranting in the middle of
Finally, Ahmadinejad uses what genocide scholars call "accusation in a mirror," a technique previously refined by Nazi, Serbian, and Hutu propagandists. A Rwandan propaganda theorist, for example, counseled his co-conspirators to, "impute to enemies exactly what they and their own party are planning to do." The International Criminal Tribunal for the Former Yugoslavia observed this phenomenon in Serbia as well: "In articles, announcements, television programs and public proclamations, Serbs were told that they needed to protect themselves from a fundamentalist Muslim threat… that the Croats and Muslims were preparing a plan of genocide against them."
In a strikingly similar vein, Ahmadinejad has repeatedly accused
In an overt reference to the Nazi Holocaust, the Genocide Convention is widely known as the "Never Again" Convention. The Convention must now pay closer attention to the rhetoric of Mahmoud Ahmadinejad. Indeed, given
The full name of the "Never Again" Convention is the "Convention on the Prevention and Punishment of the Crime of Genocide." It is time for international institutions to take action to prevent unspeakable tragedy before it occurs rather than responding to it after the fact.
Kenneth L. Marcus is the Lillie & Nathan Ackerman Chair in Equality & Justice in
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