In a similar vein, the international community celebrated the adoption by the United Nations of the "responsibility to protect" doctrine so as to authorize intervention to protect populations from genocidal acts, but it ignores the "responsibility to prevent" obligation mandated by the Genocide Convention. Yet, this is regarded as jus cogens, a peremptory norm of international law - binding on us all.
This juridical anomaly is not only of academic interest. For we are witnessing - and have been witnessing for some time - the emergence of state-sanctioned incitement to genocide, whose epicenter is President Mahmoud Ahmadinejad's Iran. Here, you have the toxic convergence of the advocacy of the most horrific of crimes - genocide - embedded in the most virulent of hatreds - anti-Semitism - and underpinned by a publicly avowed intent to acquire nuclear weapons for that purpose, as former president Akbar Hashemi Rafsanjani put it.
Nor should the words of former president Rafsanjani - characterized as the "moderate" victor in the recent Iranian elections - be dismissed as overheated rhetoric only. For the Argentinean judiciary recently determined that it was this same Rafsanjani who planned, organized and ordered the mass terrorist bombing of the Argentinean Jewish community center (AMIA) in 1994, resulting in the death of 85 people and 300 wounded.
In a fortuitous yet chilling reminder, the Argentinean prosecutors' decision calling for arrest warrants to be issued against the Iranian leadership was released on the same day that President Ahmadinejad called yet again for the disappearance of Israel, and on the anniversary of his first public and direct call for the destruction of Israel (on October 25, 2005) when, as he put it, "Israel must be wiped off the map, as the imam says."
The imam, in this instance, is former Ayatollah Ali Khameini, the supreme leader of Iran, who had declared in 2000 that "there is only one solution to the Middle East problem, namely the annihilation and destruction of the Jewish state," while otherwise using epidemiological metaphors in calling for Israel, "the cancerous tumor of a state," to be "removed from the region."
Indeed, Ahmadinejad and the Iranian leadership's denial of the Nazi genocide against the Jews of Europe - together with the demonization of the Jews as "evil incarnate" and the delegitimization of Israel as the defiler of Islam - appear to be prologue to and justification for a new genocide. Lest this admit of any doubt, Ahmadinejad has presided over the parading of a Shihab-3 missile draped in the emblem that Israel be "wiped off the map," while exhorting assembled thousands in their chants declaring "Death to Israel," as in the Tehran conference on "A World Without Israel."
Moreover, calls for the destruction of Israel by the most senior figures in the Iranian leadership are frighteningly reminiscent of calls for the Rwandan extermination of Tutsis by the Hutu leadership. The crucial difference - which makes the Iranian genocidal threat even more dangerous - is that the Hutus were equipped with the simplest of weapons, such as machetes, while Iran, in defiance of the world community, continues its pursuit of nuclear weapons.
The failure to prevent past genocides caused UN Secretary-General Kofi Annan to lament as follows on the occasion of the 10th anniversary of the Rwandan genocide in 2004: "We must never forget our collective failure to protect at least 800,000 defenseless men, women and children who perished in Rwanda 10 years ago. Such crimes cannot be reversed. Such failures cannot be repaired. The dead cannot be brought back to life. So, what can we do?"
The answer is for the international community to pay heed to the early warnings of genocide - and incitement has been demonstrated to be a predictor of the genocide to come - and to act now, as mandated under the Genocide Convention, to prevent this clear and present danger, not only to Israel and the Jewish people, but to international peace and security.
Indeed, what is often ignored in Ahmadinejad's incitement to genocide are his warnings to any Muslim who supports Israel that they will burn in the Umma of Islam, and that the West should beware of propping up this disappearing state, while this genocidal incitement emerges as an apocalyptic precursor to the elimination of Israel and the messianic coming of the 12th Imam Mahdi.
The "responsibility to prevent" obligation in international law requires that the following actions be undertaken with all deliberate speed:
1. Israel should support the execution of arrest warrants issued by the Argentinean judiciary for the named Iranian authorities - including former Iranian president Rafsanjani - and Hezbollah operatives.
2. State parties to the Genocide Convention, whose responsibility is to enforce the convention, should refer the horrific genocidal incitement by President Ahmadinejad and other Iranian leaders to the appropriate UN agencies for account. It is astonishing that this genocidal incitement has yet to be addressed by any body or agency of the United Nations.
3. State parties should initiate in the International Court of Justice an inter-state complaint against Iran, also a state party to the Genocide Convention, for its criminal violation of the Genocide Treaty.
4. The situation of the international criminality of President Ahmadinejad, and other Iranian leaders, should be referred by the UN Security Council to the special prosecutor of the International Criminal Court for investigation and prosecution.
5. State parties to the Genocide Convention, which have enabling domestic legislation, should prepare criminal indictments for President Ahmadinejad, former president Rafsanjani, and other Iranian leaders on the basis of the "universal jurisdiction" principle embodied in the Genocide Convention.
6. NGOs should prepare an indictment of President Ahmadinejad and other Iranian leaders for the violation of the prohibition in both the Genocide Convention and the International Criminal Court Treaty, against the "public and direct incitement to genocide."
7. The new secretary general, Ban Ki-moon, who seeks to "lead by example," should refer the genocidal incitement of President Ahmadinejad and other Iranian leaders to the UN Security Council, as a matter threatening international peace and security, pursuant to Article 99 of the UN Charter.
It is time that these juridical options be initiated, which might also embolden progressive forces within Iran, while holding the responsible individuals accountable. Indeed, recent history has taught us that sustained international juridical remedies can bring about the indictment of seemingly immune dictators, such as Slobodan Milosevic and Augusto Pinochet. This is an opportunity for countries to exercise juridical leadership in regard to one of the most important threats confronting the international community.
Prof. Cotler is a member of Canadian Parliament, former minister of justice and attorney general of Canada, and is professor of law (on leave) at McGill University.