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.