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Unpublished Paper
From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework
ExpressO (2007)
  • Gregory S. Gordon, University of North Dakota

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 argue that these speeches constitute direct and public incitement to commit genocide. This Article analyzes these arguments by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. For the first time in the legal literature, the Article pieces together an analytical framework based on principles derived from the Rwandan 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. The Article points out, however, that the International Criminal Court would have to take the case and put aside political pressure owing to the absence of causation and the Middle East's toxic political environment. 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. In the interests of protecting free speech, though, given the less direct nexus between the incitement and the civilian attacks, the crime should not be charged absent evidence of direct calls for protected-group violence, as opposed to mere hatred.

  • incitement,
  • genocide,
  • crimes against humanity,
  • international criminal court,
  • international court of justice,
  • rome statute,
  • criminal law,
  • inchoate crimes,
  • criminal deterrence,
  • free speech,
  • freedom of expression,
  • first amendment,
  • persecution,
  • immunity,
  • genocide convention,
  • head of state,
  • nuremberg,
  • terrorism,
  • nuclear weapons,
  • Holocaust denial,
  • anti-Semitism,
  • personal jurisdiction,
  • universal jurisdiction
Publication Date
September, 2007
Citation Information
Gregory S. Gordon. "From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework" ExpressO (2007)
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