Opinio Juris

[Professor Elihu Richter teaches at Hebrew University-Hadassah School of Medicine and Public Health and heads the Program on Genocide Prevention. This post follows up on last week's discussion of Susan Benesch's VJIL article.]

I congratulate the Virginia Journal of International Law for hosting this web-based discussion with Susan Benesch and Greg Gordon (among others) on the legal aspects of incitement and genocide. The core principles are that the right to life trumps all other human rights, and that we have a Responsibility to Protect (R2P- Security Council Resolution 1674). Both have written path-breaking treatises of the highest public importance. Here are my brief comments:

Precautionary Principle and the Ethical Import of Delay. I myself am a medical epidemiologist with a special interest in applying the "Precautionary Principle" to make genocide prevention effective. I would like to see an international network for surveillance of hate language and prosecution of incitement to commit genocide. There is an abundant body of knowledge showing that state sponsored hate language and incitement predicts, initiates, triggers and promotes genocide, The Precautionary Principle states that when there is uncertainty concerning the possibility of the occurrence of a major catastrophic event, the costs of inaction far outweigh those of anticipatory preventive action. The Precautionary Principle shifts the burden of proof from those suspecting a catastrophic risk to those denying it. The Precautionary Principle, which has already been applied by the European Court of Justice to uphold the ban on the UK's beef exports, states that when there is doubt about a risk, there should be no doubt about the need for its prevention. This principle is now part of many international conventions guiding Environmental Law, especially in the European Union, and has been endorsed by the International Association for Genocide Scholars. Prevention of genocide based on the Precautionary Principle needs to build upon the 2002 Statute of the International Criminal Court, the 2004 Declaration of the Stockholm International Forum on the Prevention of Genocide, UN Security Council Resolution 1674, and the 2005 World Summit Outcome which declared he "responsibility to protect" targeted groups.

In genocide prevention, as in environmental health and disaster prevention, the case for action in applying the Precautionary Principle, as the discussants have all noted, is the catastrophic ethical cost of delaying prevention - which, as in natural disasters, can be measured in massive loss of human lives. There is an ethical import to delay in preventing genocide and genocidal terror-which is merely genocide being carried out by an NGO. The foregoing means there is an ethical imperative to deter, prevent or stop state sponsored hate language and incitement. In short, a false positive -e.g. wrongly silencing an inciter,--is much less of a problem than a false negative, e.g. letting an inciter commit his vile crime--which would be catastrophic.

Professor Gregory Stanton of Mary Washington University and GenocideWatch and Dr Rony Blum of Hebrew University and Yale University and I have advocated shifting the focus of genocide law and preventive activity from proof of intent after the event to prediction and prevention. (Memorandum submitted to Council of Foreign Relations, April 2006, via Paul Fold of US Senate Foreign Relations Committee). As is known to everyone in this discussion, The Rome Statute of the ICC, which specifies that incitement to commit genocide is a crime against humanity, is the already available platform for making this advance.

The proposal to indict the President of Iran for incitement to commit genocide is the template case study for applying the Precautionary Principle based on "predict and prevent" as opposed to "proof of intent after the event".

It is my premise that the core of a program for prevention of genocide and genocidal terror should be based on applying public health models for prediction and prevention which specify surveillance, prevention and control of early genocidal conditions and proactive interventions keyed to early predictors. Based on the lessons of the Armenian Genocide, the Holocaust, former Yugoslavia, Rwanda, Darfur, and many other genocides, it is clear that state sponsored incitement and hate language are highly specific early warning signs that should be the trip points for preventive legal action, instead of waiting for prosecution after genocide is over.

Text, subcontext, and context. The foregoing is the basis for some statements I would like to make about text, subtext, and context. The text is the threats--some claim they are merely predictions--to wipe Israel off the map as part of this decision. The subtext is the pictures of missiles below which phrases such as these threats appear. The context is the enriching of uranium in violation of UN resolutions, developing ever more advanced missile systems, promoting Holocaust denial, and supporting terror groups with explicitly stated genocidal agendas, and the fact that the President of the country carrying out such enrichment, is the most vocal advocate of these genocidal threats.

Subtext and context, I submit, are critically important. Up to Oct. 25 2005, Ahmadinejad's predecessors were quoted as having made many threats similar to those made by Ahmadinejad. These were ignored by the International legal community. Had these "inchoate" statements triggered some kind of punitive action, would we be where we are now? Re context, I would be willing to bet that Ahmadinejad--and many others--had made many similar statements on all kinds of soapboxes when he was a minor politician unknown to the world. The case for action to prevent an imminent peril emerged from the day he became President, acquired real power, his statements about wiping Israel off the map became headlines everywhere, and his government rejected all UN resolutions concerning Iran's nuclear plans.

Lapsed period between the statements and the actions. I believe the discussion of the lapsed period has to take into account the fact that children are those most vulnerable to the effects of incitement and hate language from official state sponsored sources, such as texts, media, and places of worship, and the effects may be decades later. We know that for adults, where there is an authoritarian environment, incitement can convert normal people into sadistic killers over a matter of months. But children are the most vulnerable group, as is the case for so many toxic exposures in medicine, and incitement and hate language reaching children increases the likelihood of intergenerational transmission of the effects. As with all cause-effect relationships in which the relations between exposure and effect may be years or decades (e.g. Asbestos, cigarette smoking and cancer, or DES in mothers and congenital malformations in their offspring), we cannot dismiss the case for legal action and accountability just because there is a long lapsed period between exposure and effect. Where the audience for incitement includes schoolchildren, even if there are no immediate effects, we have an obligation to apply R2P-the responsibility to protect future generations-to ensure R4L-Respect for Life.