Clearing Up Romney’s Plan to “Indict” Ahmadinejad

by Julian Ku

Contra Peter, there was one indisputable reference to international law in last night’s U.S. presidential debate. Mitt Romney repeated his argument that Iran’s president should be indicted for inciting genocide.  This idea has spawned quite a bit of reaction, especially from the lefty blogosphere. One typical reaction, from Greg Sargent, suggests that Romney is turning his back on his famously anti-ICC adviser John Bolton because he seems to want the ICC to act. Others have worried about the free speech implications of such an indictment.  But only CBS News, I think, has managed to get the Romney campaign to clarify what he meant:

On Tuesday, Romney campaign spokesperson Andrea Saul told CBS News in an email that “A number of judicial venues would be available to hear a case under the Genocide Convention–from U.S. courts to foreign courts to international courts–and a number of entities could initiate the indictment.”

I think it is worth noting that the U.S. Genocide Accountability Act almost certainly could not be used since it requires a U.S. nexus (and there would be some First Amendment and head of state immunity problems anyway).  The ICC could only acquire jurisdiction over the case if the Security Council referred Iran to it, and this is not very likely. Some foreign jurisdictions could probably take the case via a theory of universal jurisdiction, but not many and Romney couldn’t initiate such a prosecution.

It seems to me that the entity most likely to get involved would be the International Court of Justice, which, by virtue of Article IX of the Genocide Convention, seems to have jurisdiction over a “relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III.”  I actually think this is the most plausible basis for acquiring jurisdiction over this issue.  But Romney’s repeated use of the phrase “Indict” suggests he is thinking of the ICC.  (I complained about his confusing language five years ago here but he plainly hasn’t been reading my posts here).

As I have said in the past, I think a genocide indictment or other legal action against Iran’s president is going to be rough sledding and not worth the effort. The Jerusalem Center for Public Affairs offered its best shot here, and although powerful, I am now doubtful it lays out enough facts for a winning case.   The most thorough discussion I’ve seen is from Gregory Gordon, one example of which is here.  We hosted a discussion here on Susan Benesch’s analysis in the Virginia Journal of International Law a few years ago.

I don’t think any of this matters a whole lot, although as the likelihood of a Romney presidency inches slowly upward, this may become a live issue one day soon..  My guess is that a President Romney would support a Security Council referral, and even if he didn’t win a referral, he will at least have fulfilled his pledge to highlight Ahmadinejad’s insane statements.  This is not a huge departure from past U.S. policy, since the U.S. supported the referral of Sudan (or at least didn’t oppose it) and actively pushed for the Libya referral.  It would probably irritate John Bolton, but if he got a high enough post, I bet he could live with it.

2 Responses

  1. For the record, according to Nate Silver, over the past week Romney’s chances of becoming President have been inching slowly downward…

  2. Free speech?  How about the Brandenburg test — “imminent lawless action”? and, in any event, the incitement covered by the treaty is direct and public incitement to commit genocide and the incitement covered by the present U.S. legislation is where a perpetrator actually “directly and publicly incites another to violate” the covered prohibition — but, as noted in a comment to Kevin’s post — section 1093(8) probably excludes prosecution and, in any event, should be deleted from the U.S. legislation.

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