Subcommittee on International Human Rights Committee on May 7th, 2009

[Prof. Alan Dershowitz]

Obviously international politics plays a major role. Iran is an oil-rich nation. It's also a major consumer. It has close connections to China, to Russia, in some respects, and even to France. The applause at the United Nations that I referred to suggests that it has widespread support among some African nations, some South American nations, and some Middle East nations. By the way, it has less among Middle East nations, I think, than among some African nations, which are further away from it. It seems to me that the further away you get from Iran, maybe the more you're willing to support and applaud it. The closer you are, the more dangerous I think many nations see it. Nations generally are not known for their willingness to confront other large, powerful nations. I think it's a tragedy that there have not been prosecutions brought.

Israel provides such an interesting excuse to the world. While Rwanda was dying, the UN was debating, repeatedly, condemnations of Israel and the UN Commission on Human Rights' condemnations of Israel, while real genocide was going on. The same thing is happening now. There is all kinds of talk that maybe Israelis should be prosecuted by the Spanish government, maybe by the Italian government, maybe by the United Nations. This investigation is.... It's so easy to change the subject. The real danger to the world today is Iran. As you say, nobody is taking seriously the international law that permits and indeed, in my view, may require the duty to prevent, in this instance.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

We had a witness about a week ago who said that the U.S. has the Foreign Sovereign Immunities Act. I'm not sure if you're familiar with that act, but it provides for four exceptions: Syria, Iran, Cuba, and Sudan. This is apparently an act that allows individual Americans to sue Iran civilly for acts of violence or what have you. Are you aware of any Americans taking advantage of this opportunity? Would this not be another way to prosecute Iran?

[Prof. Alan Dershowitz]

Yes, it would be a very good opportunity. In fact, there are some lawsuits being talked about, particularly by victims of Hezbollah and Hamas, which are directed by Iran. Remember, too, Iran hasn't only talked about this. Everybody in the world now knows that Iran's fingerprints are all over the terrorist attacks that took place in Argentina years ago. There's absolutely no doubt about that. There have been admissions, findings of fact. They blew up civilian and diplomatic enterprises, killing dozens and dozens of people. So in addition to talking genocide, they've been trying to carry it out in retail fashion. Victims, particularly U.S. victims, can sue in U.S. courts, and there have been some lawsuits. I would say there have been mixed results around the country, but there have been some successful lawsuits brought by my colleague Nathan Lewin, his daughter, and some other lawyers in the United States. These lawsuits have been brought by victims of terrorist acts for which Iran is responsible.

I'm not aware of any civil suits brought against Iran or Ahmadinejad for threats of genocide. That's much harder to do. You have to show actual damage to bring a civil lawsuit, and preventive civil lawsuits are difficult. Now, they exist. For example, you can bring a lawsuit against a spouse who has threatened you and get a protective order or an injunctive order.

So there is equitable relief that could be obtained in courts of law. But this is really a new area, and a new jurisprudence is needed. As somebody who is prepared to work with other people, countries, and NGOs, I offer myself to try to help develop this new jurisprudence of prevention, which could be used to prevent genocides instead of merely responding to them after they occur.

[The Chair, Conservative, Scott Reid]

Mr. Rae.

[Bob Rae, Liberal, Toronto Centre, ON]

Thank you, Professor.

I have two lines of questioning. The first has to do with marshalling the evidentiary case against Iran with respect to its breach of the genocide convention. What would be the steps, what would be the essential elements of the case, as it has developed historically?

[Prof. Alan Dershowitz]

We're very fortunate to have had a lot of that work done for us by the Honourable Irwin Cotler and people working under his direction. They put together a brilliant petition that I had the honour of signing, together with Louise Arbour, Elie Wiesel, and dozens of other people from around the world. We all read it very carefully. That petition cites specific verses and sentences. There are videotapes and audiotapes. The case is a very powerful one.

We would also want to get the file from Argentina of the investigation that was done of the Iranian complicity in the terrorist acts down there. Perhaps we could try to create an analogy with the conspiracy or RICO laws in the United States, which go back many years. We might be able to show an overall pattern that includes support of terrorism, incitement, other genocidal activities, and actual crimes that have occurred, and present them together, as part of the evidentiary context in which the incitement to genocide occurred.

If somebody like Richard Goldstone, who has been invited to do the investigation of what went on in the Gaza, or somebody of his distinction were to be appointed to gather evidence in relation to Iran, it could serve a very important preventive function. Even a gathering of evidence and making of the case in the court of public opinion would serve a very important function.

[Bob Rae, Liberal, Toronto Centre, ON]

As I understand it, under the genocide convention--a lot of what you've been talking about is the criminalization of the head of state, the activities of Ahmadinejad himself--it would be possible for a government that's a party to the convention to bring a case against another state in front of the ICJ, let alone the ICC; but let's set aside the ICC for a moment.

One of the issues we have to get to is how do we get this beyond a political science discussion, if you'll pardon the expression? How do we encourage a state to actually take this issue sufficiently seriously that we move it beyond the academic discussion and take it into the realm of statecraft, into the realm of diplomacy, so that the discussions that President Obama and others are having with the Government of Iran are taking place in a context where clearly it isn't simply business as usual and there's a very profound case that the Government of Iran has to meet?

[Prof. Alan Dershowitz]

I agree completely with that analysis. I think you negotiate from a greater position of strength when there are sanctions hanging over the head of a government like Iran.

I think trying to bring a case in front of the International Court of Justice, under the treaty, would be interesting. Of course, the International Court of Justice, unlike the International Criminal Court, is a United Nations body. The judges are appointed very differently and are somewhat less independent. Their jurisprudence is of mixed quality, I think, in terms of independence.

But there have been some very good decisions. The decision on the use of nuclear weapons, I know, is something that Professor Cotler was interested in, and he brought cases in front of the Canadian courts.

Unfortunately, in the end, the International Court of Justice didn't render a decision--it basically was in equipoise on some of these issues--but at least it provides a precedent for being able to bring a case.

I don't think any international court would be able to sit silently after it was presented with the evidence of this incitement of genocide. At the very least, it would have to condemn it, as secretaries general of the United Nations have condemned it. But if it came from a court of law, even a court of law without enforcement power against other nations, I think it would have a big impact and move it from the political science classroom, as you correctly point out, to at least the courtroom. That would have a salutary effect.

[The Chair, Conservative, Scott Reid]

That completes the round.

Mr. Sweet, you'll be our cleanup hitter today.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Thank you very much.

Thank you, Professor Dershowitz.

I have a follow-up question to Mr. Rae's line of questioning. You had mentioned the mixed quality of jurisprudence on the ICJ. That begs the question on my part, would a ruling that is flawed--for lack of a better word--diminish a future case at the ICC or other international fora?

[Prof. Alan Dershowitz]

That's a very good question. It really presents the issue very starkly: whether, when you have two court systems, one of which is neutral and objective and has very professional judges and a completely professional prosecutor on it, as the International Criminal Court does, and another court, which has been--up to now, at least--tinged with politics, bringing a case in the first court could have a negative impact on the second court.

My own view, which would be subject to reconsideration, obviously, based on new evidence, would be no; in a case like this, the issue is so clear that I think the International Court of Justice would have to condemn and would have to make the findings that would be conducive to doing justice and acting preventively in this case.

This is not a close case on its facts. Therefore, I would have more confidence in the International Court of Justice than I might in a more controversial or closer case. I mean, Ahmadinejad presents an embarrassment to the world. Even at the United Nations, when he spoke there, nobody wanted him to speak there. He had to be allowed to speak. The UN didn't want him to speak. They tried to distance themselves from his talk. But they were unable to do so.

So I think the International Court of Justice would, as they say, do the right thing in a case of this kind.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

I was shocked to hear your observation that at the Durban event so many representatives of countries were clapping vociferously in support. It was very disturbing. Obviously they didn't want to distance themselves.

The other concern I have is on the evidence we hear about the human rights transgressions of Iran; frankly, the international assassinations of Iran; and of course, the development of nuclear weapons. We've had genocide in human history, but I believe this is the first time we are faced with a dictator of this magnitude, or at least the representative of the dictating council of this magnitude, that could possibly have a storehouse of nuclear weapons. Up until now genocide has been attempted by conventional means, or at least conventional weapons. Of course, there were the atrocious acts of Nazi Germany with ovens. But now the risk is that this person will be backed with nuclear weapons.

[Prof. Alan Dershowitz]

I agree, and I think it's actually worse than that. This is the first time we've had the following combination of three factors, maybe four. One is a genocidal nation bent on inciting genocide. Two, they're soon to be armed with nuclear weapons. Three, there's a culture of suicide that has an unwillingness to be deterred. At least with Nazi Germany, the Stalinists, the Soviet Union, and Saddam in Iraq, they didn't want to die. Their leaders wanted to live. They weren't promised paradise if they killed so many people.

When you have a combination of incitement to genocide, the capability of inflicting it through nuclear weapons, and a lack of concern with losing 15 million people--all of whom would immediately go to paradise and be treated as martyrs, at least that's what they believe--that triple combination.... Plus it's coming from religious leaders with whom you have no right to disagree. That four-way combination is unprecedented in human history and presents the greatest threat of genocide ever presented on this planet, in my view.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

I fully concur. Thank you.

Time is always an enemy here in committee. I'm going to have to choose my last question.

I'll go back to something that was already said to take the process from the academic to the pragmatic. Moving into statecraft diplomacy and ultimately justice, I would say.... Because certainly that's needed right now with the threats that have happened. We've heard witnesses talk about strategies to curtail this threat with economic sanctions, the ICJ, the ICC, or a watch list for travel. Are there any other strategies?

Our ultimate goal is going to be recommendations on how to stop these human rights transgressions as well as the nuclear threat of Iran. Are there any other initiatives that you could give us that we could consider in our report to end the insanity of this Iranian regime?

[Prof. Alan Dershowitz]

That really is the $64,000 question. What can be done to really end this insanity?

I hate to say there is no one single elegant solution or magic bullet. I think a wide combination of facts, such as was done with regard to Libya, is probably going to be helpful. Number one is isolating the country; number two is having very significant economic sanctions. And with Libya what was required was a demonstration by the United States that military action would be taken. Remember that President Clinton did authorize the bombing, a very narrow bombing of just one small area, but it sent the message to Gadhafi as clearly as possible that he was not safe. Now, the difference is that Gadhafi wanted to live and he doesn't have a martyr complex, and he saw how close his own children came to being killed by the bombs. So it does require a combination of carrot and stick.

The other issue is whether the United States and Canada and other freedom-loving countries can have any impact on the people of Iran, many of whom are wonderful and freedom-loving people. Iran, let's remember, had the most open and freest—though not particularly open and free—Muslim nation in the Middle East for a long period of time, with women's rights being recognized. There is a secular culture in that country as well, a culture preferring life to death. And if we can do anything to promote that culture from within and expect that maybe some democratic considerations would prevail....

I'm afraid that won't work alone. It's an extraordinarily complicated problem, because even military action might have negative results. It might strengthen the regime. So there is no single solution.

I just think silence is not an option and inaction is not an option. I know the committee will come up with brilliant and innovative and creative and positive suggestions, all of which should be tried. I think the multi-faceted approach is what is required here, and not reliance on one single magic bullet, which is not available to us.

[The Chair, Conservative, Scott Reid]

Professor Dershowitz, we really appreciate your taking the time to be with us. We've had a real adventure following you and getting you to come before the committee, but I can tell you there was considerable enthusiasm to having you testify. I see that our enthusiasm for you was justified by the testimony you gave us today. I thank you very much.

[Prof. Alan Dershowitz]

Thank you very much. I appreciate it.

[The Chair, Conservative, Scott Reid]

With that, committee, we are adjourned.