Actually, the United States Could Prosecute Ahmadinejad

by Kevin Jon Heller

Julian beat me to discussing Romney’s statement last night that, if elected, he would “make sure that Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation” (what we ICL scholars call “direct and public incitement to genocide”).  I disagree with Julian, however, that Ahmadinejad could not be prosecuted in the United States.  Pursuant to the Genocide Accountability Act, the United States has had universal jurisdiction over all forms of genocide since 2007.  Here are 18 USC 1091(c) and (e):

(c) Incitement offense. Whoever directly and publicly incites another to violate subsection (a) shall be fined not more than $500,000 or imprisoned not more than five years, or both.

(e) Jurisdiction.— There is jurisdiction over the offenses described in subsections (a), (c), and (d) if—(2) regardless of where the offense is committed, the alleged offender is— (D) present in the United States.

To be clear, I do not think there is even a colorable argument that Ahmadinejad is actually guilty of direct and public incitement.  But insofar as the U.S. disagreed, it would simply need to get its hands on him.

http://opiniojuris.org/2012/10/23/the-romney-team-cant-even-avoid-botching-the-genocide-issue/

11 Responses

  1. Ahmadinejad has never said “Israel should be wiped off the map” which is apparently what the allegation of “incitement to genocide” is based on. But even assuming he has – for the sake of argument -, the statement was made in 2005; i.e. two years before the Genocide Accountability Act was signed into law.

    Doest the Act allow retroactive claims? Correct me if I’m wrong, but I don’t believe it does.

    On a different note, this is what Mitt Romney has said back in 2007 during a speech at Yeshiva University, referring to the Iranian “people”: 
    “This one’s a little sensitive. Listen carefully. We have to make it clear to the Iranian people that while nuclear capabilities may be the source of pride, they can also be a source of peril. If nuclear material from Iran falls into the hands of terrorists and is used, it would provoke a devastating response from the entire civilized world to the very nation that supplied it”. 
    He has threatened a civilian population (using words like “people” and “nation”) with “devastating response” because of the Iranian Government’s nuclear program. Isn’t this incitement to commit war crimes? 

  2. Reza,

    As far as I know, he’s made similar statements much more recently — though I agree with you about the perils of translation…

  3. In spite of all horrible crimes which were committed in the Bosnia during the last war the International Court of Justice could not determine that Genocide had been committed . The threshold of proof for this crime is so high. According to Intentional law for what legal reasons Ahmadinejad can be accused of committing the genocide? I am of the opinion that Romney really needs to participate in a public international law course and learn it carefully!
     

  4. According to Romney’s handlers, he was referring to the “World Court” indicting Ahmadinejad for genocide (see http://2012.talkingpointsmemo.com/2012/10/foreign-policy-debate-obama-romney-boca-raton-third-debate.php). Of course, that doesn’t clear much up because “World Court” generally refers to the iCJ which can’t indict people. But if they believe the World Court is the ICC, then we can definitely assume one thing: somewhere John Bolton is a very unhappy man. 

  5. Absolute immunity (ratione personae) would prevent Ahmadinejad’s prosecution in the US, would it not?

  6. RJ1983,

    Presumably, he would no longer be President of Iran if the US had him in custody.

  7. In case of interest, here’s more on Romney’s statement, from CBS and from the Huffington Post and the Washington Post.

  8. KJH, as in he will happily pay a visit to the States, or more as in the CIA will drag his comatose body in a bag accross the border in yet another instance of an utterly illegal arrest on foreign soil (not that the US cares, but stil..).

     Its quite shocking to see such rhetoric on statements from Iran, coming from the US – the self-appointed global policeman, to use Tomuschat’s words -, while the US itself has a number of PIL violations on its account: aggression, countless interventions in another state’s domestic affairs, a practice of torture, denial of basic human rights, indefinite detention, a so-called global war on terrorism giving the Commander in Chief virtually unlimited power to carry out targeted killings, criminalizing and prosecuting DPIH as a war crime (giving US forces in Afgh a Peacekeeper-like immunity against attack), just to name a few, and the list goes on…

    The double standard applied by the US when calling Ahmadinejad to account for an ill-translated statement about Israel is disastrous to its reputation and credibility.

  9. It is NEARLY IMPOSSIBLE to prosecute anyone under the U.S. genocide legislation and the U.S. is in material breach of the Convention because the U.S. does not have adequate legislation.  This also means that the ICC complimentarity provisions do not obviate ICC jurisdiciton with respect to U.S. “investigations” (apparently there have been none) or “prosecutions.”
    See 18 U.S.C. sec. 1093(8).  Would it be a defense that he merely intended to wipe Isreal off the map (and, therefore, quite clearly, target Jews as such) and not Jews in many other countries in the world?  see, e.g., http://ssrn.com/abstract=1481827
    perhaps President Obama will seek an amendment to the U.S. legislation.

  10. Jordan, that defense seems a little strange. By that measure, the hutus only wanted to kill tutsis within the country too. And even the official public statements made by the Nazi government called for elimination of the Jews on the continent, so I suppose under this line of defense it could be said that this was not actually a policy for “worldwide extermination” either. 
    But on that note, doesn’t actual genocide have to take place for someone to be prosecuted for inciting it? 

  11. This post got me thinking about the Iranian government’s ominous policy towards the Baha’is, Iran’s largest religious minority, and whether its treatment of the Baha’is forebodes genocidal intent.  An internal government document discovered by human rights observers lays out the Iranian government policy towards the Baha’is.  It is in the form of an order or directive by the Supreme Leader with the heading (translated from Persian): “Resolution of the Baha’i Question.”  The document describes the government goal of “destroying” the roots of the Baha’i community in Iran and around the world.  Does this document, coupled with the government’s persecution of the Baha’is, suggest genocidal intent?  Here are some excerpts from the document:
     
     
    “The recent views, instructions, and directives given by the Esteemed Leader regarding the Bahá’í question were conveyed to the Supreme Council … ” and “the Respected President.  …  The government’s dealings with them must be in such a way that their progress and development are blocked.”
     
    “A plan must be devised to confront and destroy their roots.”  
     
    “They must be expelled from universities, either in the admission process or during the course of their studies, once it becomes known that they are Bahá’ís. … They should be enrolled in schools which have a strong and imposing religious ideology.”
     
    “Deny them employment if they identify themselves as Bahá’ís.”

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