By Michael Newton, Special to CNN
Michael A. Newton, a professor at Vanderbilt University School of Law, is co-author of 'Enemy of the State: The Trial and Execution of Saddam Hussein.' The views expressed are the author's own.
On Monday night, Mitt Romney reiterated his call for a stronger response to the growing prospect that a nuclear-armed Iran would undermine vital American interests in the Middle East. Romney said that he would “make sure that [President Mahmoud] Ahmadinejad is indicted under the Genocide Convention.”
Incendiary public pronouncements by the Iranian leader are well-documented, and judging by the language of the Rome Statute of the International Criminal Court (ICC), some might plausibly argue there are “reasonable grounds” to believe that Ahmadinejad could be charged with the crime of genocide.
But although a genocide case against Ahmadinejad is potentially feasible, it’s fraught with practical and political barriers.
Countries have an obligation under the Genocide Convention of 1948 to enact domestic legislation to criminalize acts of genocide as well as “direct and public” incitement of others to commit genocide. The Convention, to which Iran is legally obligated, sets forth the baseline criteria for incitement to genocide that are replicated in domestic legislation and international jurisprudence around the world.
The U.S. Genocide Convention Implementation Act, named after Sen. William Proxmire, who spoke often and passionately about criminalizing genocide under U.S. law, was sponsored by then Sen. Joseph Biden. Indictment under the U.S. federal statute would permit the arrest of the perpetrator when on U.S. soil.
Similarly, the Genocide Convention obligates countries around the world to criminalize incitement under their domestic law, and the Iranians could conceivably find themselves locked into a wave of diplomatic isolation based on the domestic criminal legislation of other countries.
This pathway, however, would face the nearly insurmountable barrier of sovereign immunity. In other words, one country cannot simply disregard the sovereign immunity claims of another country to issue criminal charges against a sitting leader. On the other hand, the Genocide Convention specifically authorizes a non-criminal case in the International Court of Justice that would also highlight Ahmadinejad’s anti-Semitism.
The International Criminal Court, meanwhile, could also serve as a viable forum if the U.N. Security Council referred the situation in Iran to its jurisdiction under Article 13(b) of the Rome Statute. Precedents for that include the cases against the Sudanese president and the late Libyan dictator Muammar Gadhafi.
But while prosecution in the ICC would overcome the sovereign immunity barrier, it would pose difficulties given the foreseeable lack of cooperation by the Iranians in the collection of evidence and the surrender of possible suspects. The Rome Statute does permit a case against anyone who “directly and publicly incites others to commit genocide.”
Obtaining a U.N. Security Council Resolution to create ICC jurisdiction would raise a formidable political barrier. Because Iran is not a party to the ICC, such a referral requires a majority vote of the Security Council, without the veto of one of the five permanent members, which include both Russia and China.
Similar to previous genocide cases against leaders in Rwanda, Iraq, and the former Yugoslavia, an actual incitement case against Ahmadinejad in either domestic or international forums would consist of two equally important prongs.
First, the statements would have to be characterized not as political statements against Israel as a state entity, but as calls for the elimination of the Jewish people based on their ethnic, religious, or national identity.
Second, the incitement must have been public and direct. Some of the potential evidence would include calls to “remove the Zionist black stain from the human society,” or the exhortation that “anyone who loves freedom and justice must strive for the annihilation of the Zionist regime in order to pave the way for world justice and freedom,” or the argument that “the Zionist regime will be wiped out, and humanity will be liberated” – freed, that is, from the “acquisitive and invasive” minority.
Initiation of a case against Iran’s leader would no doubt be controversial and could galvanize Iranian domestic political unity. On the other hand, it could be a game changer in the diplomatic status quo that would prompt countries either to stand for principle or surrender to political expediency.