From incitement to indictment? Prosecuting Iran's president for advocating Israel's destruction and piecing together incitement law's emerging analytical framework.

Author:Gordon, Gregory S.
Position:Symposium on Redefining International Criminal Law
 
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Israel must be wiped off the face of the map. --Iranian president Mahmoud Ahmadinejad (1) Let us consult yet, in this long forewhile How to ourselves we may prevent this ill. --Homer (2) I. INTRODUCTION

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's newly elected president, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map." (3) That murderous exhortation turned out to be the first in a series of provocative speeches arguably advocating liquidation of the Jewish state. (4) In the context of his nation's avowed policy to eliminate Israel, develop a nuclear capability, (5) aid terrorist groups bent on destroying Israel, (6) and deny the Holocaust, (7) do the Iranian president's speeches constitute a prosecutable international crime, such as direct and public incitement to commit genocide? Certain commentators, including prominent figures such as Alan Dershowitz, cite to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, (8) the Rome Statute of the International Criminal Court, (9) and domestic universal jurisdiction statutes and believe they do. (10) In June 2007, the U.S. House of Representatives joined the chorus by voting in support of a non-binding resolution appealing to the United Nations Security Council to charge Ahmadinejad with violating the Genocide Convention based on his calls for the destruction of Israel. (11) In October 2007, one of Australia's most influential political figures, Labor Party leader Kevin Rudd, announced that Ahmadinejad should be brought before the International Criminal Court (ICC) on charges of incitement to genocide based on his statements regarding Israel. (12) Rudd was subsequently elected Australian Prime Minister, and in May of this year he announced that his government was contemplating an incitement claim against Iran to be brought before the International Court of Justice. (13)

And with weapons of mass destruction nearly within the Iranian president's grasp, (14) it is increasingly urgent to inquire whether these commentators and politicians have a point. But even if they do, could Ahmadinejad's apocalyptic urgings realistically be prosecuted? Advocates accurately point to relevant international and domestic legal authority regarding incitement to genocide. A closer look, however, reveals that any proposed prosecution of Ahmadinejad would have to clear some imposing substantive, procedural, and political hurdles. In discussing how the international community might bring Iran's chief executive to justice, (15) this Article considers what those obstacles might be, and analyzes whether they could be overcome. By the same token, it also considers whether prosecution advocates have perhaps been too narrow in their focus on incitement to genocide and have failed to contemplate the additional possibility of prosecuting Ahmadinejad for crimes against humanity.

As it turns out, the Ahmadinejad case is an ideal vehicle for examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. (16) Culling the key principles from these cases, this Article pieces together the emerging analytical framework for incitement law and uses it to examine incitement crimes in a fresh context that raises some important issues. For example, does this developing body of law permit prosecution of a sitting head of state whose words defy easy translation and whose audience appears amorphous? Even if it does, would such prosecution run afoul of the law in the absence of actual, rather than threatened, mass atrocity? May a politician face charges for crimes against humanity when he has supported attacks by third-party clients against civilians he is threatening in his speeches, but has not perpetrated the attacks directly? And is there nevertheless a risk that such charges could impermissibly infringe on hallowed rights of free expression?

Part II of the Article details Ahmadinejad's statements and the circumstances under which they were issued. It places these words in context by briefly tracing the contemporary history of Iran, Ahmadinejad's rise to power, and Iran's state-sponsored eliminationist rhetoric and military policy regarding Israel. Part III considers the potential legal bases for prosecuting Ahmadinejad and in doing so examines the state of international incitement law from both a procedural and substantive perspective. This entails culling a structured and integrated set of legal principles from the emerging body of incitement law, including jurisprudence from the Rwandan Media Case and the Canadian Supreme Court's Mugesera decision. Part IV analyzes the viability of prosecuting Ahmadinejad within the current form of this evolving legal matrix.

In the end, the Article concludes that, even with potential uncertainty in the definition of the group Ahmadinejad is attacking and the audience he is addressing, ambiguities in the translation of Ahmadinejad's words, Iran's use of proxies to attack Israeli civilians, and the lack of an actual genocide, it should be theoretically possible to prosecute Ahmadinejad for direct and public incitement to commit genocide and crimes against humanity. Any such prosecution, however, would have to be brought before the ICC and would require the ICC prosecutor to put aside political pressure that may arise due to the absence of actual genocide and the toxic political environment in the Middle East. Moreover, given the less-than-direct nexus between the attack on civilians and the speech at issue, it would also require a careful selection of crimes against humanity charges to avoid undue infringement on freedom of expression.

In light of the practical unlikelihood of a prosecution despite Ahmadinejad's extreme and extensive rhetoric, this Article proposes that incitement law turn its focus to deterrence rather than continue its emphasis on post-genocide prosecution. Such a prospective approach would permit early intervention and center the crime of incitement to genocide on its core mission of preventing atrocity. It could also lead to greater political acceptance of prosecuting incitement at its outset, rather than punishing it retrospectively after it has its intended effect. The Article also suggests that, to the extent the law is not yet clear on this point, euphemisms often employed to disguise incitement--"predictions" of destruction, dehumanizing the target or ascribing violent motives to it, or congratulating the audience on past acts of violence, when anchored to direct calls--should also be considered to constitute acts of incitement. Finally, with respect to crimes against humanity, the international community should reaffirm that attacks on a civilian population carried out by a proxy at the insistence of the inciter, rather than directly by the actual inciter himself, should be sufficient to establish liability. At the same time, in the interest of protecting free speech, the crime should not be charged absent evidence of calls for violence against protected groups, as opposed to mere hatred.

  1. IRAN, AHMADINEJAD, AND ISRAEL

    1. IRAN'S ISLAMIC REVOLUTION: SETTING THE STAGE FOR THE RISE OF AHMADINEJAD

      With the 1979 overthrow of the Shah of Iran, Ayatollah Ruhollah Khomeini established himself as Supreme Leader of a proclaimed Islamic theocracy in Iran. (17) The new government imposed a radical shift toward conservatism, banning all Western cultural influences and forcing women to return to traditional veiled dress. (18) Khomeini spewed anti-Jewish rhetoric that included condemnation of the state of Israel. (19)

      After Khomeini's death in 1989, Islamic clerics chose Iran's outgoing president, Ali Khamenei, to be Supreme Leader. (20) In August of that year, Akbar Hashemi-Rafsanjani, the speaker of the Majles (akin to a parliament), was elected president and re-elected in June 1993. (21) The United States suspended all trade with the Islamic Republic in 1995, accusing it of supporting terrorist groups and attempting to develop nuclear weapons. (22)

      In the meantime, the regime continued its harsh anti-Israel rhetoric. On December 31, 1999, Khamenei stated that the "only possible solution" to political unrest in the Middle East would be "the annihilation and destruction of the Zionist state." (23) In 2000, Khamenei announced: "We have repeatedly said that this cancerous tumor of a state [Israel] should be removed from the region...." (24) President Rafsanjani stated in 2002:

      If one day ... the world of Islam comes to possess ... [nuclear] weapons--on that day [Israel's] method of global arrogance would come to a dead end. This ... is because the use of a nuclear bomb in Israel will leave nothing on the ground, whereas it will only damage the world of Islam." (25) Rafsanjani acted on his anti-Semitic rhetoric when he ordered the 1994 bombing of a Jewish community center in Buenos Aires that killed eighty-five people. In 2006, Argentina issued an indictment against him for his actions. (26)

      In 1997, Iranians elected as president Mohammad Khatami, a moderately liberal Muslim cleric, hoping he would usher in greater freedoms and reform. (27) Nevertheless, even Khatami, a relative moderate, called Israel a "racist, terrorist state." (28) In 2004, after flawed parliamentary elections in which many reformists were barred from contesting their seats, a very conservative group retook control. (29) This set the stage for the ascendancy of a new force in Iranian politics: Mahmoud Ahmadinejad.

    2. MAHMOUD AHMADINEJAD

      1. Background

        Born the son of a poor blacksmith in 1956, Mahmoud Ahmadinejad's strong religious beliefs surfaced early. (30) He is reported to have had an interest in and talent for the Qur'an as a very small child. (31) He eventually became a committed Islamic revolutionary activist both in and outside of Iran. (32)

        Various primary sources present differing accounts regarding Ahmadinejad's role in...

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