Incitement to Genocide and the Responsibility to Protect

by Elihu Richter

[Professor Elihu Richter teaches at Hebrew University-Hadassah School of Medicine and Public Health and heads the Program on Genocide Prevention. This post follows up on last week’s discussion of Susan Benesch’s VJIL article.]

I congratulate the Virginia Journal of International Law for hosting this web-based discussion with Susan Benesch and Greg Gordon (among others) on the legal aspects of incitement and genocide. The core principles are that the right to life trumps all other human rights, and that we have a Responsibility to Protect (R2P- Security Council Resolution 1674). Both have written path-breaking treatises of the highest public importance. Here are my brief comments:

Precautionary Principle and the Ethical Import of Delay. I myself am a medical epidemiologist with a special interest in applying the “Precautionary Principle” to make genocide prevention effective. I would like to see an international network for surveillance of hate language and prosecution of incitement to commit genocide. There is an abundant body of knowledge showing that state sponsored hate language and incitement predicts, initiates, triggers and promotes genocide, The Precautionary Principle states that when there is uncertainty concerning the possibility of the occurrence of a major catastrophic event, the costs of inaction far outweigh those of anticipatory preventive action. The Precautionary Principle shifts the burden of proof from those suspecting a catastrophic risk to those denying it. The Precautionary Principle, which has already been applied by the European Court of Justice to uphold the ban on the UK’s beef exports, states that when there is doubt about a risk, there should be no doubt about the need for its prevention. This principle is now part of many international conventions guiding Environmental Law, especially in the European Union, and has been endorsed by the International Association for Genocide Scholars. Prevention of genocide based on the Precautionary Principle needs to build upon the 2002 Statute of the International Criminal Court, the 2004 Declaration of the Stockholm International Forum on the Prevention of Genocide, UN Security Council Resolution 1674, and the 2005 World Summit Outcome which declared he “responsibility to protect” targeted groups.

In genocide prevention, as in environmental health and disaster prevention, the case for action in applying the Precautionary Principle, as the discussants have all noted, is the catastrophic ethical cost of delaying prevention – which, as in natural disasters, can be measured in massive loss of human lives. There is an ethical import to delay in preventing genocide and genocidal terror-which is merely genocide being carried out by an NGO. The foregoing means there is an ethical imperative to deter, prevent or stop state sponsored hate language and incitement. In short, a false positive -e.g. wrongly silencing an inciter,–is much less of a problem than a false negative, e.g. letting an inciter commit his vile crime–which would be catastrophic.

Professor Gregory Stanton of Mary Washington University and GenocideWatch and Dr Rony Blum of Hebrew University and Yale University and I have advocated shifting the focus of genocide law and preventive activity from proof of intent after the event to prediction and prevention. (Memorandum submitted to Council of Foreign Relations, April 2006, via Paul Fold of US Senate Foreign Relations Committee). As is known to everyone in this discussion, The Rome Statute of the ICC, which specifies that incitement to commit genocide is a crime against humanity, is the already available platform for making this advance.

The proposal to indict the President of Iran for incitement to commit genocide is the template case study for applying the Precautionary Principle based on “predict and prevent” as opposed to “proof of intent after the event”.

It is my premise that the core of a program for prevention of genocide and genocidal terror should be based on applying public health models for prediction and prevention which specify surveillance, prevention and control of early genocidal conditions and proactive interventions keyed to early predictors. Based on the lessons of the Armenian Genocide, the Holocaust, former Yugoslavia, Rwanda, Darfur, and many other genocides, it is clear that state sponsored incitement and hate language are highly specific early warning signs that should be the trip points for preventive legal action, instead of waiting for prosecution after genocide is over.

Text, subcontext, and context. The foregoing is the basis for some statements I would like to make about text, subtext, and context. The text is the threats–some claim they are merely predictions–to wipe Israel off the map as part of this decision. The subtext is the pictures of missiles below which phrases such as these threats appear. The context is the enriching of uranium in violation of UN resolutions, developing ever more advanced missile systems, promoting Holocaust denial, and supporting terror groups with explicitly stated genocidal agendas, and the fact that the President of the country carrying out such enrichment, is the most vocal advocate of these genocidal threats.

Subtext and context, I submit, are critically important. Up to Oct. 25 2005, Ahmadinejad’s predecessors were quoted as having made many threats similar to those made by Ahmadinejad. These were ignored by the International legal community. Had these “inchoate” statements triggered some kind of punitive action, would we be where we are now? Re context, I would be willing to bet that Ahmadinejad–and many others–had made many similar statements on all kinds of soapboxes when he was a minor politician unknown to the world. The case for action to prevent an imminent peril emerged from the day he became President, acquired real power, his statements about wiping Israel off the map became headlines everywhere, and his government rejected all UN resolutions concerning Iran’s nuclear plans.

Lapsed period between the statements and the actions. I believe the discussion of the lapsed period has to take into account the fact that children are those most vulnerable to the effects of incitement and hate language from official state sponsored sources, such as texts, media, and places of worship, and the effects may be decades later. We know that for adults, where there is an authoritarian environment, incitement can convert normal people into sadistic killers over a matter of months. But children are the most vulnerable group, as is the case for so many toxic exposures in medicine, and incitement and hate language reaching children increases the likelihood of intergenerational transmission of the effects. As with all cause-effect relationships in which the relations between exposure and effect may be years or decades (e.g. Asbestos, cigarette smoking and cancer, or DES in mothers and congenital malformations in their offspring), we cannot dismiss the case for legal action and accountability just because there is a long lapsed period between exposure and effect. Where the audience for incitement includes schoolchildren, even if there are no immediate effects, we have an obligation to apply R2P-the responsibility to protect future generations-to ensure R4L-Respect for Life.

http://opiniojuris.org/2008/04/22/incitement-to-genocide-and-the-responsibility-to-protect/

7 Responses

  1. The proposal to indict the President of Iran for incitement to commit genocide is the template case study for applying the Precautionary Principle based on “predict and prevent” as opposed to “proof of intent after the event”.

    What a poorly chosen “template case study.”

    Why?

    Cf. my comments (as ‘Seamus’) here

    And see the analysis from The Centre for Research on Globalisation.

  2. Perhaps a more apt template case study can be culled from the following:

    “Israel under Ariel Sharon became an agent of destruction, not only for its surrounding environment, but for itself as well, because its domestic and foreign policy is largely oriented toward one major goal: the politicide of the Palestinian people. By politicide I mean a process that has, as its ultimate goal, the dissolution of the Palestinian people’s existence as a legitimate social, political, and economic entity. This process may also but not necessarily include their partial or complete ethnic cleansing from the territory known as the Land of Israel.”

    —Baruch Kimmerling, Politicide: Ariel Sharon’s War Against the Palestinians (London: Verso, 2003): pp. 3-4.

    One of the historical lessons you failed to cite is found in Ilan Pappe’s The Ethnic Cleansing of Palestine (Oxford, England: Oneworld, 2006).

    “Text, subtext and context” are indeed “critically important.”

  3. What can be said about Hillary Clinton’s “totally obliterate them” speech ?

    According to Robert Scheer, “Clinton Threatens to ‘Obliterate’ Iran”, April 23, 2008,

    “it is an assertion of the right of our nation to commit genocide on an unprecedented scale.”

    http://www.huffingtonpost.com/ robert-scheer/ clinton-puts-iran-in-her_b_98133.html

  4. I object to the Precautionary Principle in all forms, as it is an appeal to Negative Proof.

  5. Matthew,

    While the precautionary principle (as ‘avoid steps that will create a risk of harm’) can entail an appeal to negative proof, it need not and is not necessarily reduced to same if only because it involves questions of rationality and risk regulation and thus makes appeals to assumptions and beliefs about risk that may or may not be true or may be true, in part, or may be more or less reasonable (the logical form of the negative proof involves making an inference directly from the absence of knowledge, which is not the case in most applications of the precautionary principle I’m aware of, involving as they do, estimates of probabilities; in other words, uncertainty is not literally equivalent to absence of knowledge simpliciter, furthermore, it is sometimes prudent to be sensitive to human ignorance and uncertainty). It is captured in the maxim “better safe than sorry,” which may, in some circumstances, be a perfectly reasonable (motivational) attitude to have, given our experiences, history, knowledge, etc. Of course at the other end we have “nothing ventured, nothing gained,” which, again, may be a sensible motivation suited to a particular endeavor or situation. At the individual level at any rate, there are so many variables that it seems foolish to believe there are hard and fast rules associated with applying the precautionary principle.

    Cass Sunstein elaborates:

    “There is some important truth in the precautionary principle. Sometimes it is much better to be safe than sorry. Certainly we should acknowledge that a small probability (say, 1 in 100,000) of a serious harm (say, 100,000 deaths) deserves extremely serious attention. It is worthwhile to spend a lot of money to eliminate that risk. The fact that a danger is unlikely to materialize is hardly a good objection to regulatory controls. But everything depends on the size of the investiment and the speculativeness of the harms. Unless the harm would be truly catastrophic, a huge investment makes no sense for a harm that has a one in billion chance of occurring. Taken literally, the precautionary principle would lead to indefensibly huge expenditures, exhausting our budget well before the menu of options could be thoroughly consulted. If we take costly steps to avoid all risks, however improbable they are, we will quickly impoverish ourselves.”

    So, Sunstein is in fact critical of the principle for guiding risk regulation, but not because it commits a logical fallacy, but because it cannot effectively guide our deliberations about risk regulation:

    “In real-world controversies, a failure to regulate will run afoul of the precautionary principle because potential risks are involved. But regulation itself will cause potential risks, and hence run afoul of the precautionary principle too; and the same is true for every step in between.”

    Sunstein, I think rightly, believes cost-benefit analysis (CBA) can incorporate the principle at “the beginning of a serious analysis of how to approach risks. A competent CBA takes good account of the precautionary principle by asking regulators to attend to low-probability risks of significant harms. CBA subsumes this risk, as it does all others, into the overall assessment.” And, as Sunstein reminds us, CBA does not eliminate the need for political judgment. Please see: Cass R. Sunstein, Risk and Reason: Safety, Law, and the Environment (Cambridge, UK: CUP, 2002): 102-105.

    Ecologists and Greens have a credible argument to make with the precautionary principle if the alternative involves waiting to achieve “full scientific consensus” before taking action, for this may mean serious if not irreparable ecological damage could take place (cf. its invocation in the Rio Declaration; and see Robyn Eckersley, The Green State: Rethinking Democracy and Sovereignty, 2004). In any case, the precautionary principle is usually used in the context of other principles and policies or its limited utility is recognized. In short, we can’t conflate its use to the violation of a rule of formal logic.

  6. Sandy Levinson at Balkinization has initiated a discussion of Hilary Clinton’s remarks.

    I think her statement is further evidence for the truth of Robert Justin Lipkin’s proposition over at his blog Essentially Contested America, that, alas, “The first woman president unfortunately has to appear tougher than any man seeking the job.”

  7. CBA is a good ways away from the Precautionary Principle. If one can accurately use CBA, finding the same result as the Precautionary Principle is simply a matter of inputs (risk outweighs benefits.)

    Ecologists and Greens have a credible argument to make with the precautionary principle if the alternative involves waiting to achieve “full scientific consensus” before taking action, for this may mean serious if not irreparable ecological damage could take place

    The problem with CBA, of course, is the fact you have to have some idea as to the inputs. Catastrophic outcomes are, of course, heavily weighted. Therefore, if there’s a fair amount of uncertainty in the odds of the event, it’s quite easy to swing the decision from yes to no by using two different probabilities, both within the wide margin of error.

    Using the Precautionary Principle when CBA concurs with the analysis is redundant. The Principle serves to guide when CBA is impossible. As such, I feel it fair to judge it by the logical proof it demands.

    To prove the effects of a course of action is a far more practical (and often the only possible) approach, compared to disproving all conceivable avenues of harm.

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