See you in court, Mahmoud Ahmadinejad / By Adi Schwartz
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Thu Sep 7 18:09:54 EDT 2006
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http://www.haaretz.com/hasen/spages/754691.html
See you in court, Mahmoud Ahmadinejad / By Adi Schwartz
Next month, a new element will be introduced into the discussions
about the international community's attitude toward Iran, which is
becoming a nuclear power. A group of Israelis, headed by former UN
ambassador Dr. Dore Gold, recently completed the composition of a
lawsuit to be referred to the International Criminal Court in The
Hague against Iranian President Mahmoud Ahmadinejad, for incitement
to genocide.
The lawsuit, whose main points are being published here for the
first time, is based on the 1948 UN Convention for the Prevention and
Punishment of the Crime of Genocide, one of the most important
conventions in international law. The convention was written after
the Second World War, in order to prevent the repetition of cases of
genocide such as the destruction of the Jews by the Nazis. According
to the convention, "direct and public incitement to committing
genocide" is a criminal offense, with genocide defined as an activity
"committed with intent to destroy, in whole or in part, a national,
ethnic, racial or religious group." In first place among the list of
crimes enumerated by the convention is "Killing members of the group."
Aside from Gold, the group includes Meir Rosenne, former legal
adviser to the Foreign Ministry and Israeli ambassador to France and
the U.S.; Eytan Bentsur, former director general of the Foreign
Ministry; and MK Danny Naveh. The four share the opinion that the
words repeatedly uttered by the Iranian president regarding the
destruction of Israel and erasing it from the map are a distinct
violation of the Genocide Convention, aside from being a violation of
the convention of the UN itself, which prohibits a member nation from
calling for the destruction of another member nation.
Time to attack
"There are things about which we must not be silent and that we must
not ignore," says Gold, today chair of the Jerusalem Center for
Public Affairs, which is coordinating the lawsuit as a
nongovernmental organization. "The time has come to go on the legal
attack. As a citizen and a former diplomat, who was witness to the
fact that Israel was under attack for years in the area of
humanitarian international law, I believe that we must no longer
remain silent, particularly in light of the blatant violation of the
Genocide Convention, which is the most important of the UN
conventions."
Rosenne, today a private attorney, says that this is not a political
act. "It is easy to imagine what would happen if Israel announced
that it desired to destroy another country," says Rosenne. "Sanctions
against it would be applied immediately. Were the threat only
theoretical, we could live with it. But we are talking here about a
country of about 70 million people, which is increasingly arming
itself, and in addition is arming organizations that it sponsors,
such as Hezbollah, which are acting directly against Israel. In other
words, this has practical implications. It is simply astonishing that
the president of a country that is a UN member makes such
declarations and nobody in the international community reacts, except
with polite words."
The lawsuit says that the name of the convention - the Convention
for the Prevention and Punishment of the Crime of Genocide -
testifies to the fact that its intention is to prevent genocide. For
that reason, in order to prevent conflict and bloodshed, the court is
requested to discuss the lawsuit. The document points out that
according to the convention, incitement is a crime in itself, and
there is no need to wait until genocide takes place in order to
convict for incitement to genocide.
The lawsuit spells out the history of the relations between Iran and
Israel, and particularly their deterioration since the 1979 Islamic
Revolution. Strong words against Israel have been uttered over the
years, but Ahmadinejad has brought them to a peak in his specific
calls for destroying Israel. Gold says that the suit will give about
20 examples of such calls (which the president of Iran managed to
utter in the course of only one year since becoming president),
including his declaration in 2005 that "Israel should be wiped off
the map," or a statement from August 2006 to the effect that the
solution to the crisis in the Middle East is "the destruction of the
Zionist regime." In 2005 the Iranian president convened a congress in
Tehran called The World Without Zionism. There is no question about
the public and direct nature of these words, and according to the
suit, the State of Israel and its population are considered a
national entity.
"I relate to these threats in all seriousness," says Irit Kahan,
former head of the department of international law in the State
Prosecutors Office, who supports the initiative to prosecute
Ahmadinejad. "We have here a specific threat to eliminate a country.
The man is also a serial Holocaust denier, who makes no effort to
hide that fact. This is a phenomenon that cannot be ignored."
Gold explains that Ahmadinejad differs from previous leaders of Arab
or Muslim countries. "In the past, with Nasser for example, the
expression focused on criticism, as harsh as it may have been, of the
Israeli government or of Zionism," says Gold. "But here there is a
call to wipe out the population living in Israel. These are two
entirely different things. Aside from that, since the 1990s, and
particularly since the terrible failures of the UN in Rwanda and
Yugoslavia, the international community has been paying special
attention to the issue of genocide. The subject of genocide is
blazing in the consciousness of jurists and diplomats, and therefore
the ground is much more fertile for discussing such issues."
The main precedents offered in the lawsuit come from the
International Tribunal for Rwanda, which convicted nine people of
incitement to genocide. The most prominent of them was the former
prime minister of Rwanda, Jean Kambanda, who was sentenced to life
imprisonment for the special role he played when speaking in the name
of the government at public events and in the media, engaging in
direct and public incitement to commit acts of violence against
moderate Tutsi and Hutu. The lawsuit points out that Kambanda's
status as a head of state did not grant him immunity.
A well-known incident from the Rwanda tribunal was that of three
journalists who were accused of genocide because of their
exhortations on the "Radio Machete" radio station, to the tune of
"Let's destroy them" and "Get to work!" meaning "Go and murder!" In
the lawsuit it is claimed that while this case requires attention to
the context in which the words were said in order to conclude that
this was incitement to murder, Ahmadinejad's calls are specific and
require no interpretation.
New coalitions
The main obstacle to putting Ahmadinejad on trial is technical, and
stems from legal and political circumstances. Legally speaking, the
main problem is that Iran is not a signatory to the Rome Convention
on the International Criminal Court, which sits in The Hague and is
supposed to mediate the lawsuit. Therefore, the ICC has no power to
try Iranian citizens.
Jurists say that there are two ways of bypassing this obstacle. One
is by turning to the UN Security Council, which is allowed to refer
such cases to the Chief Prosecutor in The Hague. In such a case,
there is no importance to the question of whether Iran is a signatory
to the ICC convention; this was the method used, for example, in the
case of the genocide in Darfur (Sudan is not a signatory, either). A
second possibility is for a country that is a member of the
convention (not Israel, which is not a signatory) or a
nongovernmental organization (such as the Jerusalem Center for Public
Affairs) to refer the case to the Chief Prosecutor, who is permitted
in exceptional cases to begin an investigation. The question of
whether the UN Security Council will refer the case to the Chief
Prosecutor in The Hague depends on the international interests of
countries like Russia and China, which are liable to cast a veto
against such a proposal.
"Our explicit goal is to conduct a discussion in an international
legal forum on the matter of the Iranian president," says Danny
Naveh, who believes that even discussing the issue and bringing it
before international public opinion are very important.
Gold explains that to date, the discussion on Iran has focused on
security and economic questions, such as the nuclear project and the
oil industry. "Here there is an entirely new angle of blatant
violation of an international convention," he says. "This is an
opportunity to create new and strong coalitions on the Iranian issue.
At present, for the most part those who are speaking against Iran are
identified as rightists, conservatives, or Republicans in the case of
the United States. Introducing the element of genocide can also lead
to the support of liberals, who champion human rights, especially
when it comes to such a blatant violation of such an important
convention."
If the Chief Prosecutor in The Hague should decide to open an
investigation and if the ICC convicts Ahmadinejad, says Kahan, the
prosecutor can issue an extradition order against the Iranian
president. Clearly Iran will not extradite its president to The
Hague, but it will be possible to restrict his movements outside the
borders of the country, because if he visits one of the countries
that is a signatory to the convention, it will have to arrest him
immediately. Meir Rosen explains that if the discussion comes to the
UN General Assembly, it will be possible to impose sanctions against
Iran itself, for example by severing commercial and diplomatic ties,
and preventing the landing of Iranian planes in other countries.
In the first stage, Gold and his colleagues intend to publish the
document as a book in English, and to organize several events, mainly
in the United States and Great Britain, in order to enlist support
for the move. The four intend to raise the issue at the UN General
Assembly, an annual event convening all the heads of state, which
will take place in September. At the same time, the four plan to
begin proceedings in legal channels. Several important jurists have
already joined the initiative.
Irwin Kotler, former Justice Minister of Canada and one of the
authors of the basic convention of the court in The Hague, told
Haaretz this week that Canada may submit a request to The Hague to
investigate Ahmadinejad. Kotler said that genocide is the most
serious crime that exists, and that this is not only a matter of
punishment after the fact, but before the fact, which is the meaning
of the expression "Never again."
He added that prosecution after the fact is too late, and that we
must remember that cases of genocide like the Holocaust succeeded due
to the demonization of the other. The Holocaust began with words,
said Kotler, not with the gas chambers. It is no coincidence that
incitement to murder appears in all the legal documents, because the
international community recognizes the fact that incitement is a
significant part of the process of genocide. In the case of
Ahmadinejad, he said, we are taking about a fixed and clear pattern
of incitement to genocide.
George Fletcher, a professor of international criminal law at
Columbia University and one of the most important theoreticians today
in the United States, believes that the initiative is important and
necessary, because we have to label the behavior of Ahmadinejad
illegal. The worst thing, he said, is that it is being greeted by
silence, and is thus becoming acceptable. This is criminal behavior
par excellence. Fletcher says that this is a matter of world peace,
not necessarily Israeli peace, and calls it "racist" speech: The fact
that a politician is talking about the murder of specific people as a
group is intolerable and leads to dehumanization. It is a blow to
humanity, according to Fletcher.
Attorney Alan Dershowitz has also joined the initiative. In an
interview from his home in the United States, he said that this is a
test for the international community of the seriousness of its
intentions and of its ability to execute international norms and
laws. If, God forbid, there should be genocide, and if it is Iran
that commits it against the State of Israel, it is clear that the
president of Iran will be convicted of incitement, said Dershowitz.
He added that this means that Ahmadinejad is violating the law
already, because the incitement is taking place now. "Do we really
have to wait until the genocide takes place?" he asked.
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