Can Israelis Sue Ahmedinijad for Incitement to Genocide?

by Peggy McGuinness

According to this report, a group of former Israeli diplomats and parliamentarians believe that Iranian President Ahmedinijad’s recent remarks calling for the destruction of Israel and his description of the Holocaust as myth constitute conspiracy to commit genocide and incitement of genocide. They want to sue Ahmedinijad.

The potential suit raises some interesting questions of jurisdiction. In what court might the Israeli former officials file suit? If, through Ahmedinijad’s words, Iran has violated the Convention, a suit brought by Isreal against Iran before the ICJ might be a possibility. But do individual Isreali citizens have standing to sue in other venues? The Genocide Convention creates universal jurisdiction for criminal acts, but the idea being discussed here appears to aim at a civil suit (though it is admittedly unclear from this brief report). Comments open.

Hat tip: Elizabeth Cassidy

One Response

  1. The news report itself would seem to be rather less than clear on what kind of litigation is being contemplated. This may appear from the following passage:

    ‘Yediot Ahronot newspaper reported Monday that the suit would be filed

    in the International Court of Justice in The Hague, Netherland.

    Participants said the legal team was still looking for the best venue, and that the suit would only be filed in a few more months.’

    Of course, if the chosen court was the International Court of Justice, the venue would clearly be that Court, and, geographically speaking, The Hague. Article 22 (1) (2) of the Court’s Statute does empower the Court to exercise its functions elsewhere than at its seat, but this has never happened, nor would there be any reason to do so in the case now contemplated if not by, then certainly in, Israel.

    I agree that it would be possible to bring a case against Iran (not, of course, against its President) before the ICJ. Israel and Iran are both states (Article 34 of the Statute; it is, again, a matter of course that mutual recognition plays no part in this), members of the UN (Article 35 (1) of the Statute), and both are party to the Genocide Convention, without any reservation as to Article IX, which provides for the jurisdiction of the Court.

    That’s the question of jurisdiction taken care of, but there remains the small matter of the merits: could it really be said that President Ahmadinejad’s statements, objectionale though they were, constituted incitement or conspiracy to genocide?

    And if so, would such acts involve a breach of the Convention? There appear to be two ways of answering this question.

    First, can there be state responsibility for incitement or conspiracy to commit acts of genocide? The answer is probably ‘in principle, yes’, simply because states are not allowed to offend international criminal law any more than they can violate any other rules of international law, and at least incitement to genocide is clearly an international crime (see Article 25 (3) (e) of the Rome Statute of the International Criminal Court). I’m not so sure about conspiracy on that basis.

    But quite apart from the application of international criminal law, is there in general state responsibility for inducing or inciting another state to commit genocide? Here, the answer is probably ‘no’ (see for citations of authority the ILC Commentary on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, p. 154, n. 287). The reason may be that states are considered as sovereign entities, and that a state’s decision to commit an unlawful act may therefore not be considered as a direct consequence of the incitement by another state (thus B. Graefrath, ‘Complicity in the Law of International Responsibility’, Revue Belge de Droit International 29 (1996), p. 370).

    But then, the Genocide Convention does far more than merely prevent states from engaging in acts of genocide themselves, thus incurring state responsibility arising from their own actions. In keeping with its statement of genocide as an international crime, it expressly requires states to prevent and punish acts of genocide (in fact, the Convention only expressly refers to this duty, but Yugoslavia’s – rather hopeless – argument to the effect that the Convention did not also prohibit state genocide was rightly given relatively short shrift by the ICJ: Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, available here, para. 32).

    It might therefore be argued that any incitement to genocide by a state organ, especially a very senior organ, implies that there will be no efforts at prosecution. But such an argument would presuppose that the Convention requires not only prosecution in the event of genocide, but also the presence, at all times, of anoffence of genocide on the statute book, and of a declared willingness on the part of the state to prosecute. This seems somewhat unlikely.

    On the other hand, an argument might be made that incitement is the very antithesis of prevention, and therefore prohibited under this head.

    But returning to the question of the appropriate forum: if the suit mentioned is not before the ICJ, I must admit that I fail to see the point. Will the claimants be asking for a declaratory judgment? A request for damages would seem to be a little far-fetched. After all, genocide is a crime primarily committed against peoples, not against easily identified individuals, to whom damages may be due in the ordinary manner. This may be one of the reasons why there are no provisions on damages – or civil proceedings generally – in the Convention, another consideration being that awards of damages are rarely thought of as an element of prevention (disregarding the American concept of punitive damages for now).

    Of course, the point about genocide as a crime against peoples, not individuals, relates also to standing, not only to the available remedies.

    The immunity of Iran and of its President is another obvious point. The Convention being silent on the whole issue of civil proceedings, there is obviously no abrogation of immunity for those cases, as there is in Article IV with regard to criminal proceedings. This means that the question of state immunity for the most serious crimes arises without modification by provisions like Article 27 of the Rome Statute, or, in the interpretation of the UK House of Lords, the Convention against Torture: R v. Bartle and the Commissioner of Police for the Metropolis ex parte Pinochet (Pinochet No. 3), available here.

    In this regard, it may be noted that the English Court of Appeal has recently held the – customary – Pinochet exception from immunity ratione materiae, applicable to acts of torture and other high crimes – to be applicable also to civil cases (Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya as-Saudiya (Kingdom of Saudi Arabia) and Anor (Secretary of State for Constitutional Affairs intervening) [2004] EWCA Civ 1394, [2005] QB 699), and that the case will be decided by the House of Lords in a few weeks at the latest. Still, Mr Ahmadinejad remains in office, which means that he enjoys immunity ratione personae, so even this development is not in point.

    All told, any intention to take the matter to any domestic court (excluding, of course, Iranian courts), seems woefully misconceived.

    Taking it to the ICJ would raise many interesting questions, but I still tend to think it unlikely.

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