By LIAQUAT ALI KHAN

On the fifth anniversary of 9/11, President
George Walker Bush delivered an illegal speech and may have committed
an international crime, that is, the crime of direct and public
incitement to commit genocide of a religious group. Determined
to rally disbelieving Americans behind a failed Iraqi war, the
President drifted into calling for open-ended violence against
Muslims. Says the President: "The war against this enemy
is more than a military conflict. It is the decisive ideological
struggle of the 21st century, and the calling of our generation."
The President identifies "this enemy" as Muslim extremists.
The 9/11speech is one among many through which the President
has engaged, and continues to do so, in direct and public incitements
to commit violence and other crimes against Muslims as a religious
group.

The 1948
Convention on the Prevention and Punishment of the Crime of Genocide
defines genocide, among other things, as the act of killing
members of a national, ethnical, racial, or religious group with
intent to destroy, in whole or in part, the target group. But
the Convention goes further and lists other criminal acts related
to genocide. It prohibits and punishes conspiracy to commit genocide
as well as "direct and public incitement to commit genocide."
Article 4 of the Convention provides that the persons committing
any of the listed genocide crimes shall be punished "whether
they are constitutionally responsible rulers, public officials
or private individuals."

The US has ratified the Genocide
Convention. In 1987, the US Congress furnished the implementing
legislation to enforce the Convention (the Proxmire Act). The
crime of inciting genocide is not only an international crime
but a federal crime as well.

Elements
of the Crime

The incitement crime under
the Genocide Convention consists of three distinct elements.
First, the target of incitement is a group listed in the Convention.
Second, the incitement to commit genocide is direct and public.
Third, the perpetrator has the requisite intent. When a perpetrator
satisfies these three elements, the crime of genocide-incitement
is complete and committed.

Note that the incitement to
commit genocide is a verbal crime, although non-verbal methods
of incitement are equally criminal. Genocide-incitement is primarily
a crime of the tongue. It is criminal speech. The Convention
does not require that verbal incitement produce actual genocide,
just as conspiracy to commit a crime is actionable even though
it may yield no crime. Furthermore, the incitement committed
with words is not protected under the First Amendment of the
US Constitution, treaties, or customary international law of
freedom of speech.

Let us critically examine whether
the President’s 9/11 speech satisfies the three elements of the
crime of incitement as defined in the Genocide Convention.

The Group

The Genocide Convention applies
when the perpetrator defines the target in terms of a national,
ethnical, racial, or religious group. The Convention does not
require that incitement be against the group as a whole. Even
if the incitement to commit genocide is aimed at part of the
group, the Convention crime has been committed.

In his 9/11 speech, the President
defines the enemy as Muslims who believe in a "perverted
vision of Islam." This perverted religious group is one
that, according to the President, aspires "to build a radical
Islamic empire where women are prisoners in their homes, men
are beaten for missing prayer meetings, and terrorists have a
safe haven to plan and launch attacks on America and other civilized
nations." The President ’s target is not confined to al
Qaeda or actual terrorists who attacked or might be planning
attacks on the US. Nor does the President define the target in
terms of criminals who happen to be Muslims. Fearlessly as if
the law would never reach him, which might sadly be true, the
President paints the religious group with a broad stroke, describing
the group as religiously perverted and evil, a religious group
that must be confronted, defeated, and killed.

The President targets the religious
group for its ideology and not for its criminality against the
US. That some members of this amorphous religious group may
have committed crimes against the US furnishes no legal excuse
to liquidate the entire group. When the innocent and the guilty
are lumped together as a single entity, the offense of designing
a target group is complete. Perpetrators of genocide (Hitler)
frequently detest the group, in whole or in part, and not merely
individuals. They make no distinction between the innocent and
the guilty. The net they throw to encircle the group is vast,
fluid, and indiscriminating.

Direct and
Public Incitement

No one would dispute that the
President’s 9/11 speech was a public event, a speech directly
delivered to national and international audiences, carried live
by major networks with global reach. The speech was also directly
and publicly delivered to the US troops fighting in Iraq and
Afghanistan, and stationed elsewhere in the world. The speech
also addresses the US allies that are fighting terrorism. Thus,
the NATO troops in Afghanistan, the Coalition troops in Iraq,
the Israeli Defense Forces in occupied territories, all these
troops were the actual or potential audiences of the well-advertised
9/11speech that the President delivered with high emotional voltage.
I discuss below that the speech carried genocide incitement.
Here it must be noted that the speech that delivered the message
was not hidden and private. It was direct and public. The speech
was delivered to millions of people across the world, including
criminals, gangs, and soldiers, who harbor hatred against Muslims.
In his speeches, the President has repeatedly and spitefully
labeled Muslim extremists as an evil religious group that must
be physically eliminated.

The incitement to genocide
is a verbal attempt to exhort, persuade, encourage, and provoke
the audience and troops to killing members of the target group.
Part of the incitement is to dehumanize the target group, showing
through words that the target group is subhuman, a threat, dangerous,
and worthless. The President paints the target religious group
as "dangerous enemies," one that is "driven by
a perverted vision of Islam," that espouses "hateful
ideology," that "will not leave us alone," that
"will follow us," and one that will use "the weapons
of mass destruction." These descriptions of the target group
cause fear, anger, and arousal, urging the audience and troops
to do something, including killings. Since the group is defined
in a broad manner, the incitement to kill provides no specifics.
It cultivates combat and preemption through any means necessary,
including physical elimination of the group.

Furthermore, the President
constantly uses the language of war to crush the target religious
group. To defeat the group’s Islamic ideology, the President
is proposing no cultural dialogue, seminars, or other peaceful
means. The President is speaking of military action and a permanent
war. Examine the following statements delivered in the 9/11speech,
making it crystal clear that the purpose of incitement is none
else but killings, embodied in the metaphor and reality of war:
"America will stay in the fight." "We are in a
war that will set the course for this new century." It "will
not be over until we or the extremists emerge victorious."
As if the incitement to physical elimination of the religious
group were still unclear, the President specifically addresses
the audience and troops and calls them to action. The "decisive"
battle of the 21st century, says the President, is the "calling
of our generation."

Requisite
Intent

Genocide crimes, including
the crime of direct and public incitement to commit genocide,
are intentional crimes. These are not crimes of omission or negligence.
The Genocide Convention demands that intent of the perpetrator
be shown in commission of the listed crimes. The incitement crime
does not occur if a person’s speech comes across as genocidal
against a defined group, but the speaker has no intent to produce
mass murder. Without intent, the provocation may still be regarded
as odious and morally reprehensible. But it does not constitute
the crime of genocide-incitement.

However, intent is not a purely
subjective state of mind that only the perpetrator knows. Intent
is derived from the context in which the incitement is relayed
to the audience and troops.

No one would dispute that the
President intends war when he says war. War means killing. He
is not using the word war only in the ideological sense. The
President fuses military and ideological wars to constitute an
organic unit. One war supports the other. Throughout his 9/11speech,
the President refers to intentional killings of the religious
group. "We put al Qaeda on the run, and killed or captured
most of those who planned the 9/11 attacks." The President
continues to defend the illegal and intentional invasion of Iraq,
which has killed hundreds of innocent Muslims. Speaking of exterminating
the perverted religious group, the President adds: "America
has confronted evil before, and we have defeated it — sometimes
at the cost of thousands of good men in a single battle."

In his 9/11 speech, the President
uses the word "war" eleven (11) times, the word "fight
or fighting" six (6) times, the word "battle"
two (2 times). Speaking of American soldiers, the President
adds: "Our nation is blessed to have young Americans like
these — and we will need them." Need them for what? Obviously,
for war and battle and fighting. The talk of killing is not
accidental or even negligent. It is deliberate, cold-blooded,
and even malicious. There exists evidence beyond reasonable doubt
that the President intends to wipe out what he describes as the
perverted religious group.

Conclusion

Examined in the light of the
President’s direct and public incitements through his speeches,
particularly the 9/11 speech, the atrocities committed by US
troops, the Coalition forces, and the IDF acquire a new context.
Episodes of repeated torture, Abu Gharib excesses, shootings
at wedding parties in US occupied Muslim lands, frequent murders
of innocent civilians in Afghanistan and Iraq—murders for which
American soldiers are facing court martial and death penalty—
the IDF’s cruel and criminal destruction of Lebanon, all are
related to the President’s direct and public incitements in which
he repeatedly dehumanizes and criminalizes Muslims, not as individuals
but as a religious group, inviting lawless action against the
group. The responsibility of the President as the commander-in-chief
of the US forces might well be abstract and technical. In light
of his incitements, this responsibility has become direct and
tangible. The President has intentionally engaged in repeated
direct and public provocations, persuasions, and exhortations
to commit murderous violence against a religious group.

Ali Khan is a professor of law at Washburn
University School of Law in Topeka, Kansas. Send comments to
ali.khan@washburn.edu.