Abstract

http://ssrn.com/abstract=1441535
 


 



From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework


Gregory S. Gordon


University of North Dakota - School of Law

July 30, 2009


Abstract:     
On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators contend that these statements constitute direct and public incitement to commit genocide. This Article analyzes this assertion by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. It pieces together an analytical framework based on principles derived from these cases, including the Canadian Supreme Court's opinion in the Léon Mugesera matter. Using this framework, it demonstrates that while a successful prosecution would entail clearing significant substantive and procedural hurdles, it could include both incitement and crimes against humanity charges in light of the incitement's nexus with Iran's sponsorship of terrorist attacks against Israel. However, to take the case, the International Criminal Court would have to put aside political pressures related to the Middle East's toxic political environment and the absence of causation. The odds of this happening are long. As a result, the Article proposes that incitement law shift its focus from post-atrocity punishment to deterrence. This would permit early intervention and center incitement on its core mission of atrocity prevention. The Article also suggests that euphemisms employed to disguise incitement, such as "predictions" of destruction, when anchored to direct calls for violence, should also be considered acts of direct incitement. Finally, with respect to crimes against humanity, the Article explains 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 protected-group violence, as opposed to mere hatred.

Number of Pages in PDF File: 68

Keywords: Incitement to Genocide, Crimes against Humanity (Persecution), International Criminal Court, Universal Jurisdiction

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Date posted: August 2, 2009 ; Last revised: February 17, 2012

Suggested Citation

Gordon, Gregory S., From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework (July 30, 2009). Available at SSRN: http://ssrn.com/abstract=2005967 or http://dx.doi.org/10.2139/ssrn.2005967

Contact Information

Gregory S. Gordon (Contact Author)
University of North Dakota - School of Law ( email )
P.O. Box 9003
Grand Forks, ND 58202-9003
United States
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