About that genocide indictment proposal...
October 25th, 2012
05:41 PM ET

About that genocide indictment proposal...

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.

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Topics: 2012 Election • Iran • Mitt Romney

soundoff (42 Responses)
  1. deep blue

    President Ahmadinejad is not carrying out genocide. To bring him to the international court as such would be an insult to victims of actual genocide and would demote the international court to just being the center of geopolitical theater.
    Zionism is not a race. Zionism is a political belief: support for the Jewish state of Israel. I for one disagree with Zionism because I believe that governments should be secular (including both Israel and Iran). To suggest that the Jewish state of Israel should not exist is not a condemnation of Judaism.
    I do not support the government of Iran, and I despise the way that some of the religious minorities in Iran are treated, particularly the Bahai, but Iran is not carrying out any form of genocide.

    October 25, 2012 at 6:23 pm | Reply
    • george thorn

      I've been saying the same thing for years, thank you, nice not to be the lone wolf howling at the moon.

      October 25, 2012 at 6:34 pm | Reply
      • j. von hettlingen

        In fact Ahmadinejad claimed he had nothing against the Jewish people. He said Zionism was the problem. Genocide is the systematic killing of all the people from a national, ethnic, or religious group, or an attempt to do so. Ahmadinejad had been extremely raucous about Israel. But could it lead to indictment for genocide?

        October 26, 2012 at 3:51 pm |
  2. Thinker23

    Just to offer you guys a clue... Israel is a SECULAR state governed by a SECULAR government in accordance to SECULAR laws issued by a democratically elected SECULAR Parliament.

    October 25, 2012 at 6:52 pm | Reply
    • Dave

      Why is Israel called a Jewish state!? Can a Palestinian or Christian or a Muslim or a non-Jew become president or prime minister in Israel?! Why are the symbles of the country Jewish?! The fact is that no matter how people try to hide it to make it politically correct, the lines are drawn dividing the people and their wealth based on their religion; Whether, we tend to admit it or not!? How can Romney who gives over $10,000,000.00 annually to the church, care for the Muslims in Palestine, as he cares for the Jews whom he believes in according to his religion's teachings!? As history has proven to us the occupiers and invaders, occupy and invade to control and steal not to benefit the natives.

      October 25, 2012 at 7:10 pm | Reply
      • Thinker23

        Dave... Israel IS a Jewish State because the majority of its citizens are ethnic Jews. It demands to be recognized as a Jewish State because it IS a Jewish State. Any citizen of Israel can become Israeli President, Prime Minister or hold any other public job regardless of his/her race, religion, ethnicity or gender. Israeli "symbies" are Jewish just like the "symbies" of Finland, Norway, Slovakia, Sweden, Iceland, Denmark, Greece, Switzerland, and United Kingdom are Christian. If you do not have a problem with the "symbies" of all these countries you should not have a problem with the "symbies" of Israel.

        October 26, 2012 at 5:22 am |
      • deep blue

        If the United Kingdom wanted to declare themselves a "Christian" state, I would oppose that too. The government of the United Kingdom has made no such claim, and definitely has made no such demand that other countries recognize them was such. I haven't gone through your laundry list of western European countries, but I imagine most of them have not declared themselves a "Christian" state, and if any have, they do not demand other countries recognize them as a "Christian" state as a condition for granting diplomatic recognition.

        October 26, 2012 at 10:02 am |
      • Thinker23

        Deep Blue... Israel DID NOT declare itself a JUDAIC state governed by religious rules. I hope you're able to differentiate between Iran being a PERSIAN state (which most people do not have problem with ) and Iran being an ISLAMIC state (which you should have a problem with). Somehow you insist that Israel is a JUDAIC state which it is not. Israel is a JEWISH state just like the United Kingdom is a BRITISH state. Is it clear enough?

        October 26, 2012 at 10:15 am |
    • deep blue

      The government of Israel declares itself to be a "Jewish state." In negotiations for peace, the Israeli government has demanded that other governments recognize the "Jewish state" of Israel. They have democratic elections (they should be commended for this), but the government does not represent all the people of Israel.
      I call Israel a Jewish state because the Israeli government demands that they are a Jewish state. Otherwise, I would choose different terminology.

      October 25, 2012 at 8:47 pm | Reply
      • Thinker23

        Deep Blue... The government of the Jewish State of Israel represents ALL its citizens just like the government of Italian state of Italy does. Further, land can belong to STATES (like France, Italy, Germany or Iran), to organizations (like a University or a church) or to private individuals (like John, Itzhak or Mohammed). Most of the land in the West Bank DOES NOT belong to private individuals or organizations and I've asked you to NAME THE STATE it belongs to.

        October 26, 2012 at 5:15 am |
  3. Dave

    Thinking about it Israel and its supporting countries would be a better candidate for the ICC trial than Iran or its leaders!? The occupiers are using propaganda to portray their victims as evil!? All the acts in the occupied lands and countries are to defend their homeland against an occupation force.

    October 25, 2012 at 6:52 pm | Reply
  4. Thinker23

    Dave... It is PERFECTLY LEGAL to occupy the enemy territory during a war... but would you be so kind to NAME THE COUNTRY owning the lands Israel occupies? After all, if the "occupied" lands do not belong to any state then WHY can not Jews be there?

    October 25, 2012 at 6:59 pm | Reply
    • deep blue

      What country owns the lands? That is the wrong question.
      What about the people that live on the land that the Israeli government seizes from religious minorities because of "building code violations" and gives to Jewish settlers? The problem is not that Israel has mistreated its neighbors. We could go back in history and rehash territorial disputes, but the real problem is the theft of property from a religious minority. The problem is the thousands of displaced individuals who's homes have been bulldozed and have no where to turn. The problem is humanitarian rather than geopolitical.

      October 25, 2012 at 8:53 pm | Reply
      • deep blue

        Israel, as much as anyone, is responsible for the Palestinian diaspora.

        October 25, 2012 at 9:10 pm |
      • Thinker23

        Israel is responsible for Israeli citizens. It is NOT responsible for Arabs living on other countries. The countries where these people live are responsible for them.

        October 26, 2012 at 5:32 am |
      • deep blue

        Israel is responsible for kicking those people off their land and out of the country. Israel is responsible for the mistreatment of its minorities.

        October 26, 2012 at 9:25 am |
      • Paul II

        The responsibility for "displaced" Palestinians lies with the Arab countries that invaded Israel in 1948 and repeatedly since then.

        October 26, 2012 at 1:46 pm |
  5. Thinker23

    Zionism is a Jewish nationalistic movement stating that the Jews, just like any other ethnic group of people, has the right for self-determination. Therefore, ANTI-Zionism is equivalent to stating that the Jews, UNLIKE other ethnic groups, DO NOT have a right for self-detemination. This means that ANTI-Zionism DISCRIMINATES between Jews and non-Jews. Discrimination between peopl based on race or ethnicity is RACISM. Racism against the Jews is called anti-Semitism.

    October 25, 2012 at 7:06 pm | Reply
    • deep blue

      I disagree with your premise "the Jews, just like any other ethnic group of people, has the right for self-determination."

      Every ethnic group in the world does not deserve their own country. They don't get to carve out their own piece of land and throw out everyone who lived on it before. The entire idea of founding a country for people of Jewish ethnicity or Jewish faith (whichever you prefer) is fundamentally racist.
      Now, should Jewish people, like everyone else, have a say of how the country they live in should be run? Of course! Should we split up the country of Israel into pieces and give the territory to the neighboring countries? Of course not! Are minorities treated worse in other countries than Israel? Undoubtedly so. But, that doesn't excuse demanding countries recognize the "Jewish state of Israel." The government of Israel should represent all of its people.

      October 25, 2012 at 9:06 pm | Reply
      • Thinker23

        By saying that SOME ethnic groups deserve a right for self-determination and SOME do not you're discrimination between beople of different ethnicities. Some people call such discrimination bigotry, others call it racism. No matter how ethnic discrimination is called it is PLAINLY WRONG.

        October 26, 2012 at 8:55 am |
      • Thinker23

        Israel IS a Jewish state because the majority of its population are ethnic Jews. For the same reason Greece is a Greek state because the majority of its population are ethnic Greeks. This being said the government of the Greek state Greece represents ALL citizens of Greece and the government if the Jewish state Israel represents ALL citizens of Israel.

        October 26, 2012 at 9:00 am |
      • deep blue

        If I said that some ethnic groups deserve self-determination and some do not, you would be correct. I do not assert that. Your premise is flawed. I assert that all individuals, regardless of ethnicity, deserve a government that represents in part their interests. I also assert that all individuals deserve equal protection under the law. That is all.

        October 26, 2012 at 9:24 am |
      • Thinker23

        You've said that "Every ethnic group in the world does not deserve their own country." Does not it mean that SOME ethnic groups deserve a country and some DO NOT? Saying that ALl citizens of the same country deserve equal representation as is correct as it is IRRELEVANT. All Israeli citizens have equal representation while people living elsewhere DO NOT have such representation in Israel.

        October 26, 2012 at 10:28 am |
  6. Joseph McCarthy

    This post is quite inflammatory indeed! The very idea of indicting Mahmoud Ahmedinejad on war crimes charges while Barack Obama keeps on butchering people day after day in Afghanistan, Pakistan and Yemen with those ungodly drones and Apache helicoptors is the most ludicrous idea yet conceived in the annals of mankind! This is enough to make even a billie goat want to puke!

    October 25, 2012 at 7:42 pm | Reply
    • Henry

      By making that ludicrous proposal Joseph, Mitt Romney just proved what an incompetent President he'll be with absolutely no sense of justice at all. Who on earth wants an amoral Presidet to disgrace this country further?!?!?!

      October 25, 2012 at 7:53 pm | Reply
    • Paul II

      There is a difference between warfare (in which civilians are inadvertently killed), and genocide.

      October 26, 2012 at 3:10 pm | Reply
  7. Sally

    Again – Romney just tried to make strong words for becoming elected! He is like a camel where diplomatic solutions were the better option! And he is so boring....

    October 26, 2012 at 4:34 am | Reply
  8. deep blue

    Thinker23:
    You seem to be arguing with someone other than me.

    You complain that "By saying that SOME ethnic groups deserve a right for self-determination and SOME do not you're discrimination between beople[sic] of different ethnicities," but I never made such a claim.

    You complain "I've asked you to NAME THE STATE it belongs to," but I did not dispute that Israel controls the territory (according to the UN, Israel is occupying land it seized during the 6 day war of 1967 owned by Syria, Egypt, and Jordan, but I do not think that arbitrary borders from 1968 are any better than arbitrary borders in 1970). I merely claimed that Israel is mistreating religious and ethnic minorities and that the claim that Israel is a "Jewish state" is inherently racist..
    Stop setting up straw man arguments. Stop mischaracterizing what I say so that you can use canned arguments from a different context.

    October 26, 2012 at 9:46 am | Reply
    • Thinker23

      You've said that "Every ethnic group in the world does not deserve their own country." Does not it mean that SOME ethnic groups deserve a country and some DO NOT?

      Further, while Israel CONTROLS the lands it took from Jordan na Egypt back in 1967 it DOES NOT CLAIM these lands as Israeli lands. IN the meantime, both Egypt and Jordan dropped any territorial claims to these lands as well. Therefore, these lands DO NOT BELONG TO ANY STATE... unless, of course, you'll answer my question and will NAME THE STATE these lands belong to.

      Still further, while you've claimed that Israel was "mistreating religious and ethnic minorities" you failed to support this claim by any facts despite numerous request. Again, ALL Israeli citizens have the very same equal rights guaranteed by Israeli laws.

      You've also said that calling Israel a Jewish state was "racist" but the very same accusation can be made about Poland, Russia, China, France, Italy, Greece, India, Iran and almost every other state on the globe with the possible exception of the United States, Canada, Australia and New Zealand. So if 99% of the state on this planet are "inherently racist" in your opinion Israel is in a good company.

      October 26, 2012 at 11:48 am | Reply
      • deep blue

        "Every ethnic group in the world does not deserve their own country" was a poor choice of words on my part. I did not mean to imply that any ethnic group deserves or needs "their own country." I was trying to comment on the infeasibility of granting every ethnic group their own country, but my main point is that there is no need to divide up the world geopolitically by ethnicity.
        Israeli building code policy is extremely discriminatory toward the owners of land aquired during the 1967 war.

        http://www.foreignpolicy.com/articles/2010/03/09/how_do_new_israeli_settlements_get_approved

        Equivocating a claim that Britain is British and Israel is Jewish is irrational. Anyone who is a subject of Great Britain is British, regardless of ethnicity.
        You still have not addressed a key point. Why force countries to diplomatically recognize Israel as a "Jewish state?" What is the purpose, other than to antagonize potential partners in peace?

        October 26, 2012 at 12:07 pm |
  9. deep blue

    The current government of Israel is full of hardliners that have no interest in peace. They are weakening their moderate neighbors (leadership in Jordan and the PA) and strengthening their enemies by taking hard line stances that increasingly are reducing the credibility of moderates that dare believe peace is possible.

    October 26, 2012 at 10:04 am | Reply
  10. deep blue

    Don't you see that demanding that other countries recognize, not just "the state of Israel" but rather the "Jewish state of Israel" as a condition for Israel to diplomatically recognize groups that it has conflicts with is diplomatically unproductive and a cause for violent conflict and loss of life?

    October 26, 2012 at 10:05 am | Reply
    • Thinker23

      No, I DO NOT see it, "deepblue". As long as these "groups" refuse to recognize the State of Israel for what it IS it is diplomatically and politically counterproductive for Israel to recognize these "groups" for what they ARE NOT (a sovereign state).

      October 27, 2012 at 12:12 pm | Reply
    • berman

      @Deep Blue....sorry, but you're wrong on a few counts. Great Britain has declared itself a Christian country. The official state religion of Great Britain is the Church of England. So, you're wrong there. You also state that you haven't done the research to find out which Western European countries have declared themselves a Christian state...then for some reason you claim that none of them have (despite your admission that you actually have no idea what you're talking about).

      Well, you should have done the research....Denmark, Finland, Iceland, Norway, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Greece, AND Spain have all declared themselves officially "Christian countries". Now, please SHUT UP about Israel being a Jewish state until you address every single one of those.

      October 30, 2012 at 1:48 pm | Reply
  11. Bush Family Are NAZIs

    The GOP Solution: Turn all the Old, Sick, Poor, Non-white, Non-christian, Unemployed, and Gay people into slaves. Then whip them until they are Young, Healthy, Rich, White, Christian, Employed, and Straight. Or until they are dead. Then turn them into Soylent Green to feed the military.

    October 26, 2012 at 11:43 am | Reply
  12. lee

    Worthy of being read for people of low morality in west http://walt.foreignpolicy.com/posts/2012/06/01/breaking_the_golden_rule_0

    October 26, 2012 at 12:02 pm | Reply
    • Marine5484

      That's all right, lee. No one with half a brain has to read anything to know that Western leaders have no scrupples and the people can easily be brainwashed into supporting all these useless and unnecessary wars.

      October 26, 2012 at 7:48 pm | Reply
  13. glembay18

    I don't agree with this very longl,ong shot about genocide and President Ahmadinejad (what about freedom of the speech,let's say,if we are questioning the princples in general ?) .This is calculated long shot,similar one which is fast forgotten-similar accusation re Sadaam Hussein and question of WMD.It seems that US politicitans are so eager to have an adversary at any costs.In that search,they are overlooking usually small steps and facts,which can be explaineD either by poor education of the individual or great capacity for lying ,withouth the consequences are,or both.Per example,qustion for GPS quizz should be : "Where is living largest in Arab world ,outside Israel,for almost 2500 years ?" The right answer is Iran,of course. (I will not try to bring the picture of Jews living in a town in Nazi Germany under Hitler,but it is almost here,if you are reading right-wing US media and Israel press ).

    October 27, 2012 at 1:11 pm | Reply
    • J. Foster Dulles

      Thank you, glembay18. I totally agree.

      October 27, 2012 at 7:33 pm | Reply
    • berman

      Please tell me English is your second or third language. That post made absolutely no sense whatsoever.

      October 30, 2012 at 1:50 pm | Reply

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