How Not to Defend a Legally Inaccurate Article

by Kevin Jon Heller

I’ve made more than my share of mistakes in my six years of blogging.  It’s painful and embarrassing, but it happens.  All you can do is admit your mistakes and move on.

Unfortunately, that is not the approach taken by the author of the terrible Mother Jones article I discussed yesterday.  Suebsaeng doesn’t believe that he made any mistakes.  On the contrary, he claims in an email to me that “[a]fter reading your objections, I see that they are counterarguments I fully considered and quickly rejected.”  So let’s take a look at that “full consideration” that led to the “quick rejection” of my “counterarguments,” shall we?

I am perfectly aware that “Geneva Conventions” would have been almost as weird for Romney to say during the debate. However, I didn’t go into that because it would be almost trite to include something like, “citing the Geneva Conventions would be weird, but invoking the genocide convention would be even more extreme and give more pause,” which it did for me. Almost, it doesn’t hurt that he stumbled on both terms during the night’s debate.

So, according to Suebsaeng, it is “even more extreme” and “give[s] more pause” for someone to cite the Genocide Convention with regard to an argument about genocide than the Geneva Conventions.  This despite the fact that, you know, the Genocide Convention deals with genocide and the Geneva Conventions do not (and do not even apply to the war of words between Iran and Israel).  Color me corrected!

Carefully read your previous post and the Genocide Accountability Act and then tell me if there’s anything in there that actually contradicts anything Blackney said or I wrote (if you are familiar with it, members of CAP’s “Enough Project” came to the same conclusion as we did, among many others). For starters, you don’t address how difficult it would be to prove in court that Ahmadinejad’s comment actually amounted to incitement or “the specific intent to destroy” a people. Whether they were or were not—and whether they were wholly reprehensible or despicable or not—is almost beside the point here.

I read my post (carefully, even!), and it does indeed contradict both what Blackney and Suebsaeng wrote.  Blackney argued — and Suebsaeng implied — that Romney’s genocide claim, if he pursued it as President, would “fundamentally change American policy toward the ICC and the Genocide Convention.”  In fact, nothing could be further from the truth.  As I pointed out, the US does not need the ICC to prosecute genocide, because it is perfectly capable of prosecuting genocide itself; in fact, because of the Genocide Accountability Act, federal courts have much broader jurisdiction over genocide than the ICC: whereas federal courts have universal jurisdiction, the ICC is limited to territorial and nationality jurisdiction. (Which means that the ICC would need a Security Council referral to prosecute Ahmadinejad, whereas a federal court would just need to get its hands on him.)  And, of course, nothing in Romney’s statement is in any way inconsistent with the Genocide Convention, which specifically prohibits direct and public incitement to genocide.

As for Suebsaeng’s comment about the merits of Romney’s claim — well, as I said in my post, I completely agree that the claim is weak.  But that doesn’t change the fact that the article is based on a fundamental misunderstanding of both the ICC and the Genocide Convention.

Re: your rhetorical question: “Why would we want to wait until after the genocide took place to prosecute those who incited it?” — Of course it is should be expected of our leaders to do everything they can to prevent or preempt mass killing (see: NATO action in Libya… you must’ve been in support of that, right??); my point is that it would be unprecedented to indict a foreign leader on such a serious charge with such a fragile case. You again bring up the “incitement” point, which, as I mentioned earlier and I’m sure you already know, would be staggeringly hard to prove, especially if there isn’t solid evidence of preparations for an coming slaughter/extermination of the Israeli people by the Iranian regime. (Existing, related arguments regarding Iran’s nuclear program and support for organizations like Hezbollah generally do not jump to invoking the genocide convention, and for good reason.)

As I said in the post, such a prosecution would be unprecedented.  But notice that Suebsaeng doesn’t bother to explain why that means such a prosecution could not succeed — which is kind of important, given that direct and public incitement is specifically designed to be an inchoate crime.  (I guess Suebsaeng is against the Affordable Care Act, because the individual mandate is unprecedented, even if it is perfectly constitutional.)  And, of course, Suebsaeng digs his legal hole even deeper by claiming that genocide charges against Ahmadinejad “would be staggeringly hard to prove, especially if there isn’t solid evidence of preparations for an coming slaughter/extermination of the Israeli people by the Iranian regime.”  Suebsaeng is absolutely right that Romney’s claim is weak, but that is not because of the absence of “solid evidence of preparations” for genocide. Sure, such evidence always helps prove genocide’s necessary specific intent (and Suebaseng should really use “specific intent” instead of the sloppy “direct intent and premeditation,” which is not the same thing).  But it’s not legally necessary, as every international criminal law scholar knows.

Suebsaeng concludes his email by stating that “for these reasons and more, I stand by what I wrote, and think that your blog post entirely misses the key points.”  Maybe the additional reasons that Suebsaeng didn’t bother to share with me are compelling.  The reasons he did share are not.  Suebsaeng can stand behind his post all he wants — but that simply means he stands behind a post that exhibits an almost complete lack of understanding of the ICC, the Genocide Convention, the Genocide Accountability Act, and the nature of direct and public incitement to genocide.

http://opiniojuris.org/2011/11/24/how-not-to-defend-a-legally-inaccurate-article/

One Response

  1. “If you choose to be wrong, be so loudly, foolishly and obstinately – otherwise it won’t be worth the effort.”
    Suebsaeng obviously intends to follow this old Zen advice.

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