Would the ICC Have Jurisdiction over Ahmadinejad’s Statements?

I read with great interest Professor Bell’s analysis of whether the ICC would have jurisdiction to investigate and prosecute President Ahmadinejad for direct and public incitement to genocide. I just want to to point out that the jurisdictional question he discusses is actually more complicated than he suggests.

The critical Article is Article 12, “Preconditions to the Exercise of Jurisdiction,” which reads:

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a) The State on the territory of which the conduct in question occurred…

(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Neither Israel nor Iran is a State Party to the Rome Statute. Article 12(2), however, does not necessarily require either the territorial State or the State of active nationality to be a State Party; it also permits the Court to exercise jurisdiction when one of those States has “accepted the jurisdiction of the Court in accordance with paragraph 3.” Paragraph 3, in turn, expressly permits a non-Party territorial State or State of active nationality to “accept the exercise of jurisdiction by the Court with respect to the crime in question.”

As long as Israel is considered the territorial state of Ahmadinejad’s incitement to genocide, then, it could accept the jurisdiction of the ICC with regard to that crime. The real question is whether Israel qualifies as a territorial State for purposes of of Article 12 — whether, that is, it is a “State on the territory of which the conduct in question occurred.”

Although the issue is far from clear, I think a strong case can be made that both Israel and Iran qualify as territorial States concerning Ahmadinejad’s incitement to genocide. Iran obviously qualifies, because Ahmadinejad made his statements from Iran. But Israel may qualify, as well, because — as the ICTR pointed out in the Media Cases — “the crime of direct and public incitement to commit genocide, like conspiracy, is an inchoate offense that continues in time until the completion of the acts contemplated.” The “acts contemplated” by Ahmadinejad’s statements clearly include resistance to the Israeli government by Palestinians living in Israel:

To be sure, the Media Cases discussed incitement to genocide in temporal terms, holding that the Tribunal had jurisdiction over pre-1994 incitement because the incitement contemplated acts that would have been — and were — committed during 1994. But why shouldn’t the same analysis apply to an act of incitement that took place in one State but contemplated the commission of genocidal acts in another? In such a situation, the criminal act encompasses both States; after all, if the incitment to genocide was successful, there is no question — is there? — that the State in which the genocide occurred would have jurisdiction over both the incitees and the inciter. So why should it matter that the incitement was not successful?

This argument, it is worth noting, is supported by traditional principles of territorial jurisdiction. As Antonio Cassese points out,

a corollary of the principle of territoriality [is that] even where a crime is committed outside the territory, if its effects will be felt in the territory, then it is amenable to the State’s jurisdiction.

Cassese’s examples are the person standing in State X who shoots and kill someone in State Y and manufacturing drugs in State X and smuggling them into State Y; in each case, State Y will have territorial jurisdiction over the crime (murder and drug manufacturing). Incitement to genocide is somewhat different, of course, because it is an inchoate crime. Nevertheless, the effect of the incitement — the additional danger created to the targeted group — is no less real.

Applying these principles, I think it is possible to argue that the conduct involved in Ahmadinejad’s incitement to genocide took place both in Iran and in Israel, making Israel a territorial State for purposes of Article 12. As such, Israel could consent to the ICC’s exercise of jurisdiction over that crime. should the Prosecutor conclude that an investigation is warranted.

Finally, it is worth noting that this analysis presumes that Ahmadinejad’s statements constitute incitement to genocide. That issue is far more complicated than Professor Bell implies; as this Wikepedia entry discusses, it is not unreasonable to argue that Ahmadinejad was calling for the end of the Israeli government, not the systematic destruction of Jews as a group. I wish Professor Bell had engaged with the substance of that argument instead of simply dismissing it, tendentiously and without any argument whatsoever, as “apologetics.”