Opinio Juris

One of my students recently took the naturalization test and was kind enough to share with me the “Quick Civic Lessons” that the government hands out to help prepare for the test. Most questions are terribly easy, but I would suspect a few are hard for the average would-be American:

15. Who Elects the President of the United States?

19. How many changes, or amendments, are there to the Constitution?

28. How many voting members are in the House of Representatives?

38. Who Becomes President if both the President and Vice President die?

67. What was the 50th state to be added to our Union?

72. Name the amendments that guarantee or address voting rights?

75. Whose rights are guaranteed by the Constitution and the Bill of Rights?

88. What U.S. Citizenship and Immigration Services form is used to apply for naturalized citizenship?

89. What kind of government does the United States have?

90. Name one of the purposes of the United Nations?

93. What is the most important right granted to United States citizens?

The official answers, with explanations, are below (bonus points if you can spot the wrong answer):

[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.

John Ruggie, the Special Representative of the Secretary-General on Human Rights and Transnational Corporations, issued a draft report last week that "presented a conceptual and policy framework to anchor the business and human rights debate." The section that particularly grabbed my attention was on corporate complicity for human rights violations. Notice the shift toward recognition of corporate responsibility for international law violations, something that has been debated for decades:

73. The corporate responsibility to respect human rights includes avoiding complicity. The concept has legal and non-legal pedigrees, and the implications of both are important for companies. Complicity refers to indirect involvement by companies in human rights abuses - where the actual harm is committed by another party, including governments and non-State actors. Due diligence can help a company avoid complicity.

74. The legal meaning of complicity has been spelled out most clearly in the area of aiding and abetting international crimes, i.e. knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime, as discussed in the 2007 report of the Special Representative. The number of domestic jurisdictions in which charges for international crimes can be brought against corporations is increasing, and companies may also incur non-criminal liability for complicity in human rights abuses.

75. In non-legal contexts, corporate complicity has become an important benchmark for social actors, including public and private investors, the Global Compact, campaigning organizations, and companies themselves. Claims of complicity can impose reputational costs and even lead to divestment, without legal liability being established. In this context, allegations of complicity have included indirect violations of the broad spectrum of human rights - political, civil, economic, social, and cultural.

76. Owing to the relatively limited case history, especially in relation to companies rather than individuals, and given the substantial variations in definitions of complicity within and between the legal and non-legal spheres, it is not possible to specify definitive tests for what constitutes complicity in any given context. But companies should bear in mind the considerations set out below.

77. Mere presence in a country, paying taxes, or silence in the face of abuses is unlikely to amount to the practical assistance required for legal liability. However, acts of omission in narrow contexts have led to legal liability of individuals when the omission legitimized or encouraged the abuse. Moreover, under international criminal law standards, practical assistance or encouragement need neither cause the actual abuse, nor be related temporally or physically to the abuse.

78. Similarly, deriving a benefit from a human rights abuse is not likely on its own to bring legal liability. Nevertheless, benefiting from abuses may carry negative implications for companies in the public perception.

79. Legal interpretations of “having knowledge” vary. When applied to companies, it might require that there be actual knowledge, or that the company “should have known”, that its actions or omissions would contribute to a human rights abuse. Knowledge may be inferred from both direct and circumstantial facts. The “should have known” standard is what a company could reasonably be expected to know under the circumstances.

80. In international criminal law, complicity does not require knowledge of the specific abuse or a desire for it to have occurred, as long as there was knowledge of the contribution. Therefore, it may not matter that the company was merely carrying out normal business activities if those activities contributed to the abuse and the company was aware or should have been aware of its contribution. The fact that a company was following orders, fulfilling contractual obligations, or even complying with national law will not, alone, guarantee it legal protection.

81. In short, the relationship between complicity and due diligence is clear and compelling: companies can avoid complicity by employing the due diligence processes described above - which, as noted, apply not only to their own activities but also to the relationships connected with them.

Pope Benedict XVI's address at the United Nations General Assembly last week is definitely worth a read for anyone concerned about human rights. Here is an interesting excerpt on the natural law underpinnings of all human rights:

This reference to human dignity, which is the foundation and goal of the responsibility to protect, leads us to the theme we are specifically focusing upon this year, which marks the sixtieth anniversary of the Universal Declaration of Human Rights. This document was the outcome of a convergence of different religious and cultural traditions, all of them motivated by the common desire to place the human person at the heart of institutions, laws and the workings of society, and to consider the human person essential for the world of culture, religion and science. Human rights are increasingly being presented as the common language and the ethical substratum of international relations. At the same time, the universality, indivisibility and interdependence of human rights all serve as guarantees safeguarding human dignity. It is evident, though, that the rights recognized and expounded in the Declaration apply to everyone by virtue of the common origin of the person, who remains the high-point of God’s creative design for the world and for history. They are based on the natural law inscribed on human hearts and present in different cultures and civilizations. Removing human rights from this context would mean restricting their range and yielding to a relativistic conception, according to which the meaning and interpretation of rights could vary and their universality would be denied in the name of different cultural, political, social and even religious outlooks. This great variety of viewpoints must not be allowed to obscure the fact that not only rights are universal, but so too is the human person, the subject of those rights.

Diane Marie Amann has more here, particularly on the Pope's affirmation of the "responsibility to protect."