International law clearly provides that incitement to genocide is a punishable offence, which means that the international community has reached a consensus that, in an appropriate case, legal action can be taken before a genocide occurs. Mostly it hasn't happened; mostly we've waited far, far too long and too late, and the landscape has been riddled, unfortunately, with the corpses of individual victims whom we haven't saved from genocide. Nobody thinks that's a good situation, and that's why it's important to try to formulate a jurisprudence.
In my writings I'm trying to formulate a jurisprudence of anticipatory action, of preventive action. I'm working on a new book called The Preventive State, which deals with the jurisprudence of harm prevention, focusing, of course, on the worst of harms: genocide. I think we are capable of constructing such a jurisprudence. Through international law, we already have the statutory framework of preventing genocide and of the obligation to prevent; now we have to fill that in.
Much of the law that relates to what happens after the fact--the former Yugoslavia court, the former Rwanda court, the International Criminal Court--are working in new areas and are developing new jurisprudential principles. As long as they're consistent with fair warning and due process, as I think this would be, we have to go forward.
When I mentioned “tolerating”, I had in mind specifically that when a person comes in a diplomatic capacity, that person comes with immunity, which means we can't arrest him as he comes to the United Nations, but what I was suggesting is that there's a difference between tolerating a regime of this kind and honouring it, legitimizing it, and taking steps that suggest that what they're doing and saying is acceptable.
One of the things we have to stop doing is legitimizing and honouring, as we did Nazi Germany and as my own university did in the 1930s by accepting honourary doctorates, giving honourary degrees, and having business as usual with the Nazi regime and with Nazi universities that had excluded people on racial grounds. That kind of legitimization, as I think we've learned, produces only dangerous consequences.