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Prosecute Ahmadinejad By: Alan M. Dershowitz
National Post | Sunday, May 17, 2009

I have devoted my professional career to defending free speech, even of the speech of those whose views I despise. This has brought me into conflict, even with some close friends and colleagues with whom I agree on most other subjects. For example, I have debated Irwin Cotler on several occasions with regard to hate crimes, group defamation, Holocaust denial and advocacy of violence. I believe that all of these despicable forms of expression should be protected. In my recent book, Finding Jefferson, I present arguments for why censorship laws are generally more dangerous than the speech they seek to censor.

Yet I am here today calling for the criminalization of incitement to genocide, as practised by the Iranian regime in general and President Mahmoud Ahmadinejad in particular. Is there not a conflict between my lifelong defence of free speech and my support for treating Ahmadinejad as an international criminal? Let me explain why there is not, and indeed why my support for a maximalist view for free speech actually provides an important justification for indicting Ahmadinejad and his government for incitement to genocide.

The paradigm of free speech is the individual dissident protesting the actions of government. Censorship is a tool employed by governments against dissidents. This has been the case since the beginning of time. The classic arguments in favour of freedom of speech presuppose the private individual confronting the power of government. The dissenter stands alone, often despised not only by those in power, but also by other citizens. He often represents an extreme minority view unpopular with the general public. 

The awful power of governmental sanction and mass condemnation stand against the individual dissenter. Sometimes the dissenter is virtuous. Sometimes he is vicious. Sometimes he advocates peace. Sometimes he supports violence. We are incapable of writing laws that protect only the virtuous. Accordingly, for the marketplace of ideas to remain open. it is imperative that freedom of speech be available to those whom we despise. 

Experience has taught us that there cannot be free speech for me but not for thee.

Accordingly, because I wanted freedom of expression for Martin Luther King to march through Birmingham, Ala., I had to support freedom of expression for neo-Nazis to march through Skokie, Ill. Because I support the right of Robert Maplethorpe to exhibit beautiful art, I’ve had to support the right of Larry Flynt to publish ugly pornography.

Why then do I not also support the right of Ahmadinejad to incite genocide against the Jewish state, its citizens and the Jewish people? There are several reasons. The first and most important one is he is not an individual, speaking as a dissenter against his government. He is the government of Iran, speaking to suppress the rights of individuals. Governments do not have rights as such. Individuals have rights in relation to the power of government. When Ahmadinejad incites genocide, he does so with the full force of the Iranian government behind him. This is especially dangerous in a regime that permits no dissent.

I was recently in the presence of Ahmadinejad and several dozen of his Iranian subjects at the Durban II conference in Geneva. I took the opportunity to meet many Iranian citizens of different ages. I engaged them in conversation about Ahmadinejad’s views. It was clear that they were terrified that anything they said might be construed as disagreement with Ahmadinejad. I asked several young people whether they thought the Holocaust was a fake, as Ahmadinejad has told them and whether Israel was a cancer that must be wiped off the map. They quickly agreed with Ahmadinejad’s views. I asked them whether they knew any people who disagreed. They said no. There is no marketplace of ideas, at least not officially, in Ahmadinejad’s Iran.

Accordingly, Ahmadinejad’s incitement to genocide is not offered as an idea to be debated. Instead it is a direction — an instruction. It is closely analogous to the incitements to genocide that have been punished in Rwanda. It is the equivalent of a military order given by a commander to his troops or by a mafia don to his soldiers. It is to be followed without question or dissent. In this respect it is the antithesis of freedom of speech, the opposite of the marketplace of ideas. It closes off discussion, debate and dissent.

The second reason why I support prosecution of Ahmadinejad is that the combination of such incitement to genocide and the development of nuclear weapons presents a clear and present danger of actual genocide to the world in general and to Israel and the Jewish people in particular. There are those who argue that Ahmadinejad’s call to wipe Israel off the map is intended as metaphor or has been translated incorrectly. This misses the point. Ahmadinejad well knows that his statements will be understood by many as a call for genocide.

When the leader of a nation which will soon have nuclear weapons dehumanizes a group, as Ahmadinejad and the Iranian regime have dehumanized the citizens of Israel and the Jewish people, a demand to wipe Israel off the map is more than an incitement to genocide — it is a specific direction and instruction to use nuclear weapons to create the firestorm that Ahmadinejad has called for. These weapons need not be fired from rocket launchers or dropped from planes. They can be smuggled into a country as dirty bombs by individuals who have been incited by what they regard as superior orders or religious obligations.

Nor is Ahmadinejad alone. Listen to an account of a statement made by Hashemi Rafsanjani to an American journalist:

“[Rafsanjani] boast[ed] that an Iranian [nuclear] attack would kill as many as five million Jews. Rafsanjani estimated that even if Israel retaliated by dropping its own nuclear bombs, Iran would probably lose only 15 million people, which he said would be a small ‘sacrifice’ from among the billion Muslims in the world.”

Leaders of a nuclear-armed nation that offer such genocidal and suicidal calculations are issuing instructions to their citizens and are guilty of incitement to genocide. They must be stopped before the genocide is carried out. They should be prosecuted. They should be put on watch lists. They should be denied entry into peaceful nations that are committed to preventing genocide.

The world cannot afford once again to look back after a genocide and regret that they did not take seriously the incitements to genocide that preceded the awful event. Now is our opportunity to satisfy our international obligation to prevent genocide. As Edmund Burke observed many years ago, “all that is required for evil to succeed is for good men [and women] to remain silent.”

I know that you will not remain silent in the face of this evil.

Alan M. Dershowitz is a professor of law at Harvard. He is the author of many books, including, most recently, “The Case Against Israel’s Enemies.”

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