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Print This PageHas Iran’s President “Incited” Genocide Against Israel?
As Peggy noted below, a group of Israeli diplomats and Holocaust survivors is lobbying Israel to bring a case against Iran in the International Court of Justice under the 1948 Convention on the Prevention and Punishment of Genocide. As Roger has forcefully noted in previous posts, Iran’s President has made some pretty hostile comments about Israel saying it should be “wiped off the map,” and a “rotten and dried-up tree that will be destroyed by one storm.”
No obvious civil suit remedy comes to mind, but both Israel and Iran are signatories to the Genocide Convention and, in theory at least, Iran has accepted the jurisdiction of the ICJ pursuant to Article 9 of that Convention. And such suits are not unprecedented. The ICJ is currently considering a similar claim of genocide by Bosnia against Serbia. Israel could claim Iran has violated Article 3(c)’s prohibition on “direct and public incitement to commit genocide.”
Still, even though it seems as if Iran’s president Ahmadinejad probably would like to annihilate Israel, I’m doubtful whether a claim for “inciting” genocide without any actual hostile actions that might constitute genocide will “succeed.” Moreover, Israel is just opening the door to a similar claim brought by Palestine (see here for a detailed roadmap for just such a suit) and can look forward to several years of very slow ICJ litigation.
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There are two related questions that come up:
(1) Does the Genocide Convention only prohibit incitement to commit genocide or does it/should it also prohibit incitement to racial hatred? See Wibke Kristin Timmermann, “The Relationship between Hate Propaganda and Incitement to Genocide: A New Trend in International Law Towards Criminalizing of Hate Propaganda?”, 18 Leiden J. Int’l L. 257 (2005) (arguing that inciting hate speech should also be covered).
Israel will have an easier time proving that Iran’s President’s comments incited hatred, without having to show “any actual hostile actions that might constitute genocide.”
(2) What does it mean to “incite”? See H. Ron Davidson, “The International Criminal Tribunal for Rwanda’s Decision in The Prosecutor v. Ferdinand Nahimana et al.: The Past, Present, and Future of International Incitement Law,” 17 Leiden J. Int’l L. 505 (2004). See generally, G. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.
National jurisdictions adopt different tests including:
(a) An intent test: Is the speech aimed at causing genocide?
(b) A content test: Does the speech call on listeners to engage in criminal behavior?
(c) A consequence test: What is the potential impact of the speech?
It’s not clear that proof of “actual hostile actions that might constitute genocide” is even an element of an incitement charge. For example, in a muddy opinion, the Trial Chamber of The International Criminal Tribunal for Rwanda appears to require proof of both intent and content, but not consequences. See The Prosecutor v. Nahimana et al. A majority of the European Court of Human Rights in Surek v. Turkey, however, required proof of potential consequences and content (while the dissenting judges required proof of potential consequences and intent).
In short, the relevant questions are: did the Iranian President intend for listeners to go out and destroy Israel? Did he call for the commission of a crime? And did he create a danger that listeners would engage in illegal behavior?
“Actual hostile action” (while relevant to prove attempt) does not appear to be an element of an incitement offense.
at 10:11 am EST atron
I would agree that the bit about “actual hostile actions that might constitute genocide” is not part of the definition of incitement to genocide.
This is what differentiates the crime of incitement, limited in international law to incitement to genocide, from the more generally applicable crime of ordering, soliciting or inducing “the commission of an international crime which in fact occurs or is attempted” (Article 25 (3) (b) of the Rome Statute of the International Criminal Court).
at 10:41 am EST Tobias Thienel
Direct and public incitement to genocide is a separate, inchoate crime, and not a mode of participation in an offense, such as complicity. To be guilty of such a crime, Ahmadinejad need not have actually incited a single person, nor should an act of genocide actually have been attempted or committed.
The travaux to the Genocide Convention is clear, though, that direct and public incitement to genocide is much more than “mere” hate speech or incitement of racial hatred. See generally William Schabas, Genocide in International Law, pp. 276-280.
The problem with A.’s speech is the level of directness it needs to achieve in order to be qualified as direct and public incitement to genocide. There is some difference – some but not much – between saying that Israel should be “wiped off the map” and saying, as Julius Streicher did in Der Sturmer, that: “i]f the danger of the reproduction of that curse of God in the Jewish blood is to finally come to an end, then there is only one way – the extermination of that people whose father is the devil” (see the IMT Nuremberg judgment). But, taking A’s statement in its full context, e.g. Holocaust denial, might make it able to qualify as direct incitement – though it would still be a borderline case.
As for taking the case to the ICJ – why not. So it would take years, but again, so what. The Court could award certain remedies, such as requesting guarantees of non-repetition, and even compensation for moral damages. This would certainly be a moral victory for Israel. And I don’t see any connection with a possible Palestinian lawsuit – the Francis Boyle proposal is utter dreck. The Palestinians can rightfully complain about certain actions by Israel, but genocide they are not, nor do they come even close.
at 3:06 pm EST Marko Milanovic
I largely second Marko’s comments.
I admit that unless Israeli politicians speak differently to you than to the world at large, I can’t imagine what you are referring to there. Did you mean: ‘Moreover, Israel is just opening the door to bringing a similar claim
brought byagainst Palestine‘?at 12:22 am EST Patrick