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Article Excerpt
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.
II. IRAN, AHMADINEJAD, AND ISRAEL
A. 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.
B. 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 the 1979 Islamic Revolution. In 1979, he was a member of the Office of Strengthening Unity, the student organization that planned the Teheran American Embassy takeover. (33) Six former American hostages who saw Ahmadinejad in a 1979 photo or on television said they thought he was among the captors who held them for 444 days, and one said he was interrogated by Ahmadinejad. (34) Ahmadinejad has denied being one of the hostage takers and several known hostage-takers, now his strong political opponents, deny he was with them. (35)
Ahmadinejad joined the Revolutionary Guards in 1986 after volunteering to serve in the war against Iraq. (36) Later, he co-founded the Islamic Society of Students and was an instructor for the Basij, the youth volunteer organization that enforces the Islamic Republic's strict religious mores. (37)
Despite his penchant for revolutionary activity, Ahmadinejad was mostly an unknown figure in Iranian politics until his May 3, 2003, election as Mayor of Teheran. (38) While in office, Ahmadinejad reversed many of the changes put into effect by previous moderate and reformist mayors. For example, he emphasized religion in cultural centers and required separate elevators for men and women in the municipality offices. (39)
In 2005, Ahmadinejad ran for the presidency. (40) He "campaigned as a 'man of the people,' ... who live[d] in modest circumstances, ... would promote the interests of the poor, and [would] return government to the principles of the Islamic revolution during the time of Ayatollah Khomeini." (41) His strategy worked, and Ahmadinejad became the sixth President of Iran on August 6, 2005. (42)
After his election, Ahmadinejad proclaimed: "'Thanks to the blood of the martyrs, a new Islamic revolution has arisen and the Islamic revolution of 1384 [the Iranian year at that time] will, if God wills, cut off the roots of injustice in the world.'" (43) He said that "'[t]he wave of the Islamic revolution [would] soon reach the entire world.'" (44)
Once in power, Ahmadinejad ratcheted up Iran's anti-Israel policy through eliminationist rhetoric and sponsorship of attacks against Israel through Islamist terrorist groups Hezbollah, Hamas, and Islamic Jihad. For example, soon after Ahmadinejad assumed the Iranian presidency, Iran conducted a military parade during which Shahab-3 missiles (which have a range of 1,300 kilometers--enough to hit Israel) went past the presidential viewing platform. (45) Certain missiles were draped with banners proclaiming "Israel should be wiped off the map" and "Death to Israel." (46)
U.S. Secretary of State Condoleezza Rice has noted that Iran has become a "central banker for terrorism." (47) Ahmadinejad's sponsorship of Hezbollah, Hamas, and Islamic Jihad accounts for much of this activity. Hezbollah, a Lebanese Shi'a Islamic political and paramilitary organization, follows a distinct version of Islamist Shi'a ideology developed by the Ayatollah Khomeini. (48) Iran founded Hezbollah, and nurtured it early on by helping to untie various Shiite factions behind the movement and by providing it with training, money, and ideological support. (49)
Under Ahmadinejad, Iran financed, armed, and encouraged Hezbollah to attack Israel in the summer of 2006. (50) The conflict began when Hezbollah fired Katyusha rockets and mortars at civilians in Israeli border villages, diverting attention from another Hezbollah unit that crossed into Israel, killed three Israeli soldiers, and took two others hostage. (51) Israeli troops attempted to rescue the soldiers, but were unsuccessful, with five Israeli soldiers killed in the attempt. (52) Another five soldiers and five civilians were wounded in the attacks. (53) During the conflict, which lasted until the middle of August, Hezbollah fired approximately 4,000 rockets into Israel and an estimated twenty-three percent of these rockets hit primarily civilian areas. (54) On the one-year anniversary of the conflict, Ahmadinejad reportedly sent a greeting card to Hezbollah leader Hassan Nasrallah, calling him "a soldier in the messiah's army" and proclaiming that "the wonderful victory of the Lebanese people over the Zionist occupiers is a result of faith, unity and resistance." (55) In March 2008, a Hezbollah terrorist cell infiltrated a Jewish seminary in Jerusalem and murdered eight religious students. (56)
Ahmadinejad has also provided financial support and military training to Hamas, (57) a Palestinian Sunni Islamist group whose avowed aim is the destruction of Israel. (58) Hamas has carried out dozens of suicide bombings against Israel, killing large numbers of Israeli citizens. (59) Ahmadinejad has furnished the same kind of support to Islamic Jihad, (60) another Palestinian terrorist organization that seeks the destruction of Israel. (61) Islamic Jihad claimed responsibility for six suicide bombing attacks against civilians inside Israel during 2005 and 2006. (62) These attacks killed twenty civilians and wounded scores of others, some critically. (63) Islamic Jihad has also boasted of carrying out rocket attacks against Israeli towns, which wounded civilian adults and children. (64)
All the while, Iran has come perilously close to developing a nuclear weapons capacity. It has passed one of the most significant hurdles by converting yellowcake into uranium hexafluoride gas. (65) It is now making strides at the next advanced stage of development, spinning the gas through thousands of centrifuges installed at a secretly built underground enrichment plant in Natanz, south of Tehran. (66) As a result, certain experts now believe the Islamic Republic may be capable of building an atomic bomb by as early as 2009. (67) Based on this estimation, on July 31, 2006, the U.N. Security Council--including Russia and China--ordered Iran to stop its enrichment program. (68) Iran thumbed its nose at the Security Council, which followed up with three resolutions, in December 2006, March 2007, and March 2008, repeating its demands and applying sanctions. (69) The European Union has imposed its own sanctions, "target[ing] loans to companies trading with Iran and allow[ing] for tougher cargo inspections" of Iranian imports and exports. (70) As of this writing, Iran continues to ignore these resolutions and "[t]he centrifuges spin defiantly on." (71)
Although a U.S. National Intelligence Estimate (NIE) stated last year that Iran technically halted its nuclear weapons program in 2003, (72) the country has apparently only suspended attempts to construct a warhead. This is seemingly the easiest and quickest step in creating nuclear weapons. (73) According to Henry Kissinger and other experts, though, this may be less important than Tehran's accelerated production of fissile material and success at increasing the range of its missiles, much more difficult hurdles to overcome in the nuclear weapon production process. (74) Iran's vast oil reserves, its defiant, longstanding clandestine nuclear activity, and its parading Shahab-3 missiles--capable of hitting Tel Aviv and festooned with words such as "Death to Israel"--suggest less than irenic motives. (75) Consistent with this, at the end of January 2008, all six permanent members of the U.N. Security Council agreed to introduce a new resolution likely to tighten sanctions against Iran to persuade it once again to abandon its nuclear program. (76) The following month, the U.N.'s nuclear watchdog, the International Atomic Energy Agency, released a report calling weaponization "the one major ... unsolved issue relevant to the nature of Iran's nuclear program." (77) On the heels of this, the Security Council adopted its latest sanctions resolution. (78)
2. Incendiary Statements
Against this ominous backdrop, Ahmadinejad has been making a series of extremely hostile, inflammatory public comments about Israel, Jews, and the Holocaust. Those statements may be divided into seven categories: (1) calling for Israel's destruction; (2) predicting Israel's destruction; (3) dehumanizing Israeli Jews; (4) accusing Israel of perpetrating mass murder; (5) condoning past violence against Israel and issuing threats against those who would protect Israel; (6) advocating expulsion of Israeli Jews from the Middle East; and (7) denying the Holocaust. (79)
a. Calls for Destruction
Ahmadinejad has publicly called for the annihilation of the state of Israel on several occasions. In addition to his October 25, 2005, "wipe off the map" speech, he has stated that the "'Zionist regime ... cannot survive,'" (80) and "[cannot] continue its existence." (81) On August 4, 2006, during the Israel-Hezbollah military conflict, he stated that the "real cure for the [Lebanon] conflict is elimination of the Zionist regime." (82) In February 2008, he focused his eliminationist invective specifically on Israeli Jews when he told the French newspaper Le Monde that "these false people, these fabricated people [the Israeli people] cannot continue to exist...." (83)
b. Predictions of Destruction
Ahmadinejad has also publicly predicted the imminent destruction of the Jewish state on numerous occasions. During the infamous "wipe off the map" speech, he also announced that "the growing turmoil in the Islamic world would in no time wipe Israel away." (84) He subsequently stated at public appearances over the next two years that the "Zionist regime" is "heading toward annihilation" and "elimination," (85) and will "soon be wiped out." (86) He publicly warned Israeli Jews that their country "will one day vanish," (87) "will be gone, definitely," (88) and that "they are nearing the last days of their lives." (89) Furthermore, as Israel defended itself against Hezbollah attacks in the summer of 2006, Ahmadinejad said the Jewish state had "pushed the button of its own destruction." (90) In January 2008, he indicated to a television audience that Israel was "doomed." (91) Most recently, as Israel celebrated the sixth decade of its existence, Ahmadinejad told an audience that Israel was "dying" and its sixtieth anniversary festivities were an attempt to prevent its "annihilation." (92)
c. Dehumanization
During the same time period, Ahmadinejad attempted to dehumanize Israelis, publicly calling their country a "blot" (93) and a "stain." (94) Opening a conference on supporting the Palestinians, Ahmadinejad described Israel as "a rotten, dried tree that will be eliminated by one storm." (95)
He asked an audience if Israeli Jews are human beings, and answered his own question in the negative: "They are like cattle, nay, more misguided. A bunch of bloodthirsty barbarians. Next to them, all the criminals of the world seem righteous." (96) In October 2007, he told a large gathering of Iranians that Israel's continued existence was an "insult to human dignity," (97) and in January 2008, he referred to the Jewish state as "filthy." (98) The following month, he variously described Israel to supporters at a rally as a "filthy bacteria," a "wild beast," and a "scarecrow." (99)
d. Accusations of Mass Murder
Ahmadinejad has also accused Israelis of committing mass murder. He has told audiences, for instance, that Israelis Jews have allowed "themselves to kill the Palestinian people," (100) who "are burning in the crimes of Zionists." (101) He referred to residents of the Jewish state as having "no boundaries, limits, or taboos when it comes to killing human beings." (102) He said at another public gathering that Israeli Jews are "fighting a 'war against humanity.'" (103) On October 5, 2007, Ahmadinejad marked Al-Quds Day by declaring that Israel is committing "genocide" against the Palestinians. (104)
e. Condoning Violence and Threatening Supporters
At the same time, Ahmadinejad has publicly condoned violence against Israelis. For example, in his October 25, 2005, speech, he commented approvingly regarding Palestinian terrorist attacks against Israel: "There is no doubt that the new wave of attacks in Palestine will erase this stain [Israel] from the face of Islam." (105) In the same speech, he issued threats against those who would come to Israel's aid, declaring:
"Anybody who recognizes Israel will burn in the fire of the Islamic nation's fury." (106)
f. Calling for Expulsion
Ahmadinejad has also publicly advocated for the expulsion of Israeli Jews from the Middle East. He once exclaimed that Jews had "no roots in Palestine" and he urged their removal to Germany or Austria. (107) On another occasion, Ahmadinejad asked that Israeli Jews be removed to Europe, the continental United States, Canada, or Alaska. (108) He again called for their removal to Alaska at an anti-Israel rally in October 2007. (109)
g. Holocaust Denial
Ahmadinejad has consistently denied the existence of the Holocaust in public. In December 2005, he complained that some European countries "insist" that Hitler "burned millions of Jews and put them in concentration camps" and argued that people who doubt the Holocaust should not be subjected to adverse treatment. (110) Later that month, he said: "They have created a myth that Jews were massacred and place this above God, religions and the prophets." (111) At Ahmadinejad's urging, the Institute for Political and International Studies, an arm of the Iranian Foreign Ministry, held a two-day conference in December 2006 entitled "Review of the Holocaust: Global Vision." Ahmadinejad addressed the conference as did other Holocaust deniers such as former Ku Klux Klan leader David Duke and Nazi sympathizers such as French professor Robert Faurisson. (112)
III. PIECING TOGETHER THE FRAMEWORK: THE POTENTIAL LEGAL BASES FOR PROSECUTION
Were the international community to consider putting Ahmadinejad in the dock for incitement crimes, on what legal authority, if any, could it rely? In what jurisdiction would such a crime be prosecuted? To determine this, a review of incitement law from Nuremberg to the Rwandan genocide prosecutions is necessary. Such a review permits construction of an analytical framework through which to examine Ahmadinejad's statements. The three main sources of law necessary for piecing together this framework are the Genocide Convention, the Rome Statute, and domestic universal jurisdiction statutes. The two criminal offenses that could be charged are direct and public incitement to commit genocide and crimes against humanity. (113) Each of these sources and crimes will be considered in turn. The Article then considers the potential judicial bodies that could exercise jurisdiction: the International Court of Justice (ICJ); the ICC; and municipal criminal courts.
A. POTENTIAL CRIMES
1. Direct and Public Incitement to Commit Genocide
Any prosecution of Ahmadinejad for direct and public and incitement to commit genocide would involve interpreting both the Genocide Convention and cases interpreting its provisions, as well as the ICC's Rome Statute and universal jurisdiction statutes. This Section considers each of these sources in turn.
a. The Genocide Convention
i. Overview
Through the prodding and guidance of Raphael Lemkin, a Holocaust survivor and legal scholar who coined the term "genocide," (114) the United Nations General Assembly began work on a Genocide Convention with the passage of Resolution 96(I), which established genocide as a crime carrying individual accountability under international law. (115) The finished product, adopted in 1948, listed the acts that constitute genocide and then enumerated a separate set of acts that warrant punishment. Article II of the Convention defines genocide as a series of acts--including, for example, killing, causing serious bodily or mental harm, and inflicting on the group conditions of life calculated to bring about its physical destruction--committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such. Article III then states that a number of related acts committed in furtherance of Article II shall also be punishable. This includes, at Article III(b), "direct and public incitement to commit genocide." (116)
As Article II 3(c) of the ICTR Statute (117) essentially mirrors Article III (b) of the Genocide Convention, (118) the jurisprudence of the International Criminal Tribunal for Rwanda (ICTR) provides significant assistance regarding the interpretation of Article III(b). And several defendants have been prosecuted and convicted pursuant to this section of the ICTR Statute. (119) Of these, five cases have significantly contributed to the development of incitement law: Prosecutor v. Akayesu; (120) Prosecutor v. Kambanda; (121) Prosecutor v. Ruggiu; (122) and Prosecutor v. Nahimana, Barayagwiza & Ngeze. (123) Additionally, a Rwandan incitement case from the Canadian Supreme Court, Mugesera v. Canada, (124) serves as an excellent capstone that applies and elucidates the standards established by the ICTR precedents.
By culling the important principles from these cases, a grid of analytic criteria emerges. To determine if an utterance constitutes incitement, the finder of fact must consider: (1) where the utterance was issued (is it sufficiently public?); (2) its interpretation by the audience (is it sufficiently direct?); (3) its content (is it permissible free speech or criminal incitement?); and (4) the state of mind (or mens rea) of the person uttering the words (is there sufficient intent?).
These cases also establish important collateral principles: (a) the official position of the speaker will not shield him from liability; (b) employing euphemisms does not necessarily affect the directness calculus; and (c) whether the incitement leads to actual violence is of no moment--causation is not an element of the crime of incitement.
ii. The Akayesu Case: The Mens Rea, Direct, and Public Elements
The ICTR's earliest jurisprudence established the initial foundation of incitement's analytic matrix--the mens rea, "direct," and "public" elements. On September 2, 1998, the ICTR (Tribunal) handed down the world's first conviction for genocide after trial before an international court. In finding Taba Commune mayor Jean-Paul Akayesu guilty, the Tribunal laid the initial groundwork for interpreting the crime of direct and public incitement to commit genocide. (125) More specifically, the Tribunal's decision was particularly useful in shedding light on the mens rea, "direct," and "public" elements of the crime.
The incitement charge against Akayesu stemmed from his address to a public gathering in Taba on April 19, 1994. He called on town residents to unite so they could eliminate what he described as the sole enemy: the...
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