Citation

Gordon GS. J. Crim. Law Criminol. 2008; 98(3): 853-920.

Copyright

(Copyright © 2008, Northwestern University School of Law)

DOI

unavailable

PMID

unavailable

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 Leon Mugesera matter. Using this framework, this Article 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, 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, and agree to take the case. Given incitement law's track record to date, with prosecutions occurring only post-genocide, the odds against such a prosecution are long. As a result, the Article proposes that incitement law shift its focus from punishment to deterrence. This would permit early intervention and center incitement on its core mission of atrocity prevention. This 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.