The Prevention of Genocide: Ahmadinejad’s Direct and Public Incitement to Genocide Under International Law

On Friday, August 17, the Iranian regime marked its annual observance of Al-Quds (Jerusalem) Day, held since 1979 pursuant to the Ayatollah Khomeini’s order to institute a yearly anti-Zionist cri de coeur. Al-Quds Day, and the weeks leading up to it, has historically been marked by fiery speeches and protests swarming with anti-American and anti-Jewish sentiment bearing the hallmarks of virulent anti-Semitism. Last year, Iranian President Mahmoud Ahmadinejad marked the occasion with a speech in Tehran where he stated that “Israel will have no place in the Middle East . . . [t]he Zionist regime is a cancerous cell . . . [a] lab of microbes.” This year, in a speech delivered on August 2nd to a group of ambassadors from Muslim countries assembled in Tehran, Ahmadinejad proclaimed that “[i]t has now been some 400 years that a horrendous Zionist clan has been ruling the major world affairs . . . .” He continued that Al-Quds Day is “a key for solving the world’s problems; any freedom lover and justice seeker in the world must do its best for the annihilation of the Zionist regime . . . .” This year’s festivities were marked by mass demonstrations across Iran, with millions taking to the streets chanting, “death to Israel.” It is also reported that Ahmadinejad stated publicly that “the very existence of the State of Israel is a crime against humanity” and called for the “elimination of the insult to all humanity” that is Israel. While some might reduce such statements to mere political criticism, Ahmadinejad’s most recent tirades in conjunction with a litany of past statements are sufficiently direct to constitute incitement to genocide, which is criminalized under international law. It is high time that the international community prosecute Ahmadinejad accordingly.

The crime of genocide was originally codified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, commonly referred to as the Genocide Convention. Article II defines the crime as the commission of a specified act with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The specific acts that can form the basis of genocide include the killing or causing of serious bodily or mental harm to members of the group. What distinguishes the crime of genocide from ordinary crimes of killing and violence, even when committed on a mass scale, is the requirement that the prohibited act be committed with the specific intent to eliminate a national, ethnic, or racial group.

The crime of “direct and public incitement to commit genocide” was separately codified in Article III of the Genocide Convention. This language is mirrored in the 1994 Rome Statute, which created the International Criminal Court (ICC). The same precedent was followed in the statutes establishing the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY).

To constitute incitement to genocide under international law, it is necessary that Ahmadinejad’s statements regarding the destruction of Israel and the Jewish people have been made publicly, directly, and with the required intent. There is no question that the Iranian leader’s statements have been made publicly; many have frequently been addressed to live audiences and thereafter broadcast both on state television and globally.

Turning to the directness element, the ICTR’s jurisprudence emphasizes that the central inquiry should concern whether the audience to which the speech at issue is directed has understood it as a call to genocide.In one 1998 case, the ICTR Chamber convicted former Taba Mayor Jean-Paul Akayesu of incitement to genocide based on a speech he gave to an audience of 100 people, in which he called for the destruction of the “sole enemy: the accomplices of the Inkotanyi (cockroaches).” The Chamber ultimately determined that there was sufficient evidence to find beyond a reasonable doubt that the audience understood Akayesu’s call as “one to kill the Tutsi.” The Chamber stressed that incitement may be direct despite only being implicit. It specifically referred to the Polish delegate’s observation at the time of the Genocide Convention’s drafting that it is “sufficient to play skilfully on mob psychology by casting suspicion on certain groups, by insinuating that they were responsible for economic or other difficulties in order to create an atmosphere favorable to the perpetration of the crime.” The Polish delegate’s observation emphasizes the significant effect that insinuation and the repetition of harmful stereotypes can have on the minds of the listener, thus creating an atmosphere conducive to genocide.

In 2007, the ICTR Appeals Chamber reaffirmed the conclusion of the Akayesu tribunal in a case that came to be known as the “Media Case.” The Chamber held that “[t]he principal consideration [in determining the directness of a statement] is . . . the meaning of the words used in the specific context: it does not matter that the message may appear ambiguous to another audience or in another context.” Where a speech was found to be open to several interpretations, the Chamber noted that it is “necessary to take account of [the relevant country’s] culture and language in determining whether a speech constituted direct incitement to commit genocide.” Thus, where the cultural and linguistic context supports a finding that the audience understood speech as a call to genocide, it should be deemed incitement to genocide even if the same language could be interpreted differently elsewhere.

ICTR case law has additionally defined the mental state requirement for incitement to genocide. Established in 1994 by United Nations Security Council Resolution 955 to prosecute individuals accused of crimes related to the Rwandan genocide, it is the only tribunal to have returned convictions for incitement to genocide. One ICTR trial chamber held that, to constitute incitement to genocide, the perpetrator must have the intent to “create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging.” In the aforementioned case, the court held that genocide is so serious of a crime that, “the direct and public incitement to commit [it] must be punished as such, even where such incitement failed to produce the result expected by the perpetrator.” Thus, the speech itself is the crime. While the perpetrator must intend to create in his audience a genocidal state of mind, such speech is actionable even without a resulting genocide.

By focusing the intent analysis on the effect the speech at issue has on its audience, the ICTR’s analysis squares with traditional American notions of freedom of expression. In Brandenburg v. Ohio, 395 U.S. 444 (1969), the U.S. Supreme Court held that the First Amendment does not bar a state from proscribing speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” As the President of Iran, Ahmadinejad has the ability to incite from atop a globally visible podium as well as the means to carry out genocide. His speech is entirely capable of producing in his audience a genocidal state of mind, thus increasing the likelihood of imminent lawless action beyond any acceptable threshold. Like the ICTR jurisprudence, the Brandenburg rule does not require the occurrence of lawless action, such that speech inciting to genocide could survive a First Amendment challenge even absent actual genocide. Note, however, that the U.S. Supreme Court has not decided a case concerning incitement to genocide, so whether or not it would apply the standard set in Brandenburg is uncertain.

Ahmadinejad’s August 2nd statements must be viewed in context: that is, alongside similar statements made by influential members and supporters of the Iranian regime and by Shia leaders whose proclamations are believed to have binding religious authority. Although it seems that Ahmadinejad has been careful not to directly reference the Jewish people, other influential Iranian public figures have been less cautious. For instance, in 2005, Ayatollah Nouri-Hamedani stated that “[o]ne should fight the Jews and vanquish them so that the conditions for the advent of the Hidden Imam will be met.” In 2006, Mohammad Ali-Ramin, at that time the organizer of the International Conference to Review the Global Vision of the Holocaust and currently the Deputy Culture Minister in Iran, called the Jews a “filthy people.” He also repeated the obstinate and unyielding blood libel that the Jews were guilty of poisoning wells belonging to Christians and were responsible for the death of Christ. These statements are important in defining the cultural context. In order to interpret the precise meaning of Ahmadinejad’s most recent speech, the totality of the circumstances must be considered.

A key principle underlying the phenomenon of lawfare is the “glaring failure to apply human rights law.” The international community’s failure to hold Ahmadinejad accountable sends an unacceptable signal to others that incitement to genocide will be met with impunity. Since the Holocaust, institutions and legal mechanisms have been established through which legal recourse can be taken in response to grave violations of international law. The International Criminal Court, International Court of Justice, and universal jurisdiction statutes in various nations all present possible avenues through which Ahmadinejad can be brought to justice. As the Iranian regime continues to pursue a nuclear capability, it is of the utmost importance that the international community respond to the Iranian President’s pre-genocidal diatribes before his stated intentions become a reality.

Jacob Binder is an attorney admitted to the New York State bar and a Young Professional Fellow at The Lawfare Project. Casey Larsen is a Student Fellow at The Lawfare Project and a third-year student at the University of St. Andrews.