As to the first question, I have absolutely no doubt that even under the United States law, which, as you all know, states the most extreme position on freedom of speech under our first amendment, this would constitute criminally punishable conduct.
First of all, incitement to violence, which satisfies the clear and present danger test, is not a protected speech, but what I've argued is that this is more than merely an incitement, as if incitement were not enough. This is more like a direction. This comes under the principle that when you tell somebody to do something, if you're the CEO of a company and you even indirectly instruct somebody to commit a crime, that conduct, the statement that you made to them, is not protected speech if it's in the form of a direction in a hierarchical situation.
Moreover, in the United States freedom of speech is an individual right. It's not a right of government. Indeed, there are restrictions on what governments can do under the doctrine of state action. For example, although I as an individual citizen can make certain statements that perhaps are racist or sexist, for a government official or the President of the United States to make such statements as part of state action might constitute punishable violations.
So I think there are many reasons under traditional approaches to the U.S. constitution, under the so-called Brandenburg test, which sets out when incitement to violence can be punished. Under Oliver Wendell Holmes' famous formulations, yes, he said every idea is an incitement, but it wouldn't include this kind of hierarchical idea.
I know of no case that gives the government the right, under any kind of first amendment or analogous doctrine, to direct his subjects to engage in this kind of genocide. So I am confident that American law would not provide any kind of a barrier to successful prosecution of Ahmadinejad's statements.
The second question is whether or not the International Criminal Court has jurisdiction over this matter, and of course, as Professor Cotler correctly suggested, because Iran is not a signatory it has to go through much more complicated mechanisms, which include veto power. I personally wish that the International Criminal Court were universally recognized. Its excellent chief prosecutor has indicated that he would look very seriously at all attempts to instigate or incite genocide, but I think it's unlikely that there would be a successful mandate from the Security Council to the International Criminal Court to go forward with this kind of prosecution.
Nonetheless, there's no reason not to begin an investigation, not to formulate an indictment, and not to, in the court of public opinion, make the case against Ahmadinejad and the Iranian regime. And there are also other sanctions, government to government, that can be proposed. I mentioned watch lists in my original statement. We saw just yesterday that the British government indicated a series of people who would not be welcomed into Great Britain. Ahmadinejad should be on any such list. Yes, he has to be invited to the United Nations, but he doesn't have to be welcomed by the country.
My only view is that it was a mistake for the President of Switzerland to offer a hand of friendship to Ahmadinejad on behalf of the Swiss government and perhaps even on behalf of the United States government, which does the diplomatic work in relation to Iran, when Ahmadinejad made his racist and horrible genocidal speeches at the United Nations. There's a distinction between tolerating a speaker like this, because he is the head of state and the state is a member state of the United Nations, and extending him an arm of friendship.
I think there are many sanctions. There is also the possibility of civil lawsuits by potential victims. There is of course sovereign immunity, which is a barrier. But everything should be tried. This is too serious a matter to simply say that because there is no certainty of success we shouldn't try. We should try every legal option available to the civilized world to prevent this kind of uncivilized incitement and the potential of such horrible conduct.