Suing Ahmadinejad

by Avi Bell

Haaretz reports on the progress of an attempt by a handful of retired Israeli diplomats to sue Iranian President Mahmoud Ahmadinejad in the ICC for incitement to genocide. The story does note the teeny-tiny problem with the attempt: neither Israel nor Iran is a party to the Rome Statute. By my reading of the Statute, this renders all the other questions moot, and precludes entirely the possibility of any prosecution, until President Ahmadinejad is indelicate enough to repeat a call for genocide on the territory of state party.

The retired diplomats appear to believe that under article 14 of the Rome Statute, the ICC can get jurisdiction over Ahmadinejad anyway by means of a chapter 7 Security Council resolution (fat chance) or by persuading the Prosecutor to open an investigation, either directly, or by means of an appeal of a state party. However, by my reading of the Statute, article 14 provides additional conditions to jurisdiction, rather than an alternative to articles 12 and 13.

Of course, I may be misreading the treaty, and welcome any comments on this score.

Another interesting question is whether Ahmadinejad has called for genocide at all. Certainly, Ahmadinejad has openly called for the destruction of the state of Israel (“the elimination of the Zionist regime,” in his charming formulation). Notwithstanding apologetics by the likes of Juan Cole, I think it’s fairly clear that the statement calls for the military destruction of the Jewish state and the attendant slaughter of its Jewish population. However, genocide is a specific intent crime, and the killing of an ethnic group as such is not genocide unless accompanied by the “intent to destroy, in whole or in part” the ethnic group. If Ahmadinejad’s statements are accompanied only by the specific intent to destroy the state, with the implied attendant slaughter being merely a happy coincidence, is this a call for genocide?

An easier case for genocide may be made against Hezbollah chieftain Sheikh Sayyed Hassan Nasrallah, who, in a more candid moment, called upon the Jews of the world to congregate in Israel, in order to be more easily killed.

Now it’s possible there are other wrongdoings here – perhaps Ahmadinejad has committed a crime of aggression. Alternatively, perhaps the complainants are right, and intent to destroy a state by military means should be interpreted as intent to destroy a people.

Last caveat – some of the complainants are friends and colleagues. I wish them all good luck in this endeavor. Nonetheless, I can’t help but view some of their views as more than a little naive (Haaretz reports, for example, that George Fletcher “believes that the initiative is important and necessary, because we have to label the behavior of Ahmadinejad illegal.”). Ahmadinejad poses a serious genocidal threat, and nothing in the Rome Statute is going to stop him.

4 Responses

  1. You’re right, the ICC is an odd forum for this suit. One can think of several better fora:

    1) U.S. federal court under the Alien Tort Act. Since the call is for the anhiliation of Israel, presumably any Israeli would have standing to bring the suit. There may be some question about whether incitement to genocide is a violation of customary international law (its inclusion in the ICC statute does not make it so).

    2) Criminal prosecution may be possible in the many European nations with universal jurisdiction over genocide and related human rights crimes: Spain, Germany, Switzerland, etc. These nations have permitted proceedings against Israeli officials for their conduct of the war against terror; it would be interesting to see if they would allow proceedings against a leader of a nation that their governments seek good relations with (Iran). That of course is the true test of whether these proseuctions are exercises in justice or simply politics by another means.

    Indeed, filing complaints in national courts would be more effective than the ICC, because it would put individual nations on the spot in terms of their ignoring Iran’s alleged crimes. If the ICC is not interested in prosecuting, no one is really to blame; this is the danger of untethered international bureaucracies.

    I believe that in at least some of these countries, incitement is a crime, and some Rwandans have been prosecuted for it.

  2. If, say, one called for ‘the elimination of Hosni Mubarak’s regime in Egypt’, would that entail believing that ‘it’s fairly clear one thereby calls for the military destruction of the Egyptian state and the attendant genocidal slaughter of the Egyptian populace’?

    ‘Ahmadinejad poses a serious genocidal threat, and nothing in the Rome Statute is going to stop him.’ I agree that if Ahmadinejad posed a serious genocidal threat that the Rome Statute would not stop him. But does he now in fact pose such a threat, given the comparative power the office of presidency has within the Iranian government (I’m assuming for the sake of argument that he’s advocated genocide against the Israeli people)? Moreover, there are significant groups in and outside the government, in part represented by the likes of former President Mohammad Khatami, who are not at all enamored of Ahamadinedjad’s rhetoric or posturing, however much such blustering is in direct reaction to a U.S. foreign policy characterized by historical ignorance and diplomatic ineptitude.

    Israel is the only state in the region in possession of nuclear weapons, in fact, oodles of them. It is now being accused of war crimes in conjunction with its invasion of Lebanon and continues its brutal occupation of the Occupied Territories, evidenced most vividly since 28 June in the Gaza Strip. Of course we need not worry about the behavior of the Israeli government, right?

  3. Please pardon any typos.

  4. My comment above assumes Israel can be ruled by a government that has abandoned neo-Zionism, in other words, we can make a distinction between an Israeli state relying on neo-Zionist ideology and one that has renounced such ideology (by way of making sense of the intention to ‘eliminate the Zionist regime’). Perhaps this is an unwarranted or unreasonable assumption….

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