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Could Ahmadinejad be indicted for genocide?

In discussing what further measures he might take against Iran's leaders, Mitt Romney last night came out with one somewhat surprising recommendation--charging the Iranian leader with inciting genocide. Here's what the governor said:

I’d take on diplomatic isolation efforts. I’d make sure that Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation. I would indict him for it. I would also make sure that their diplomats are treated like the pariah they are around the world, the same way we treated the apartheid diplomats of South Africa. 

Romney wasn't entirely clear on how and where this judicial action might happen. His precise words suggested that the United States could seek to prosecute Ahmadinejad under U.S. law, but the more natural interpretation is that he would encourage the International Criminal Court (which prosecutes genocide, among other atrocity crimes) to take action. After the debate, Romney advisors suggested that he was calling for action by the "world court." That phrase typically describes the International Court of Justice rather than the ICC, so there remains ambiguity.

But let's assume that Romney did mean the ICC. Perhaps the first thing to note--as the Washington Post's Greg Sargent does here--is the seeming oddity of a Republican candidate calling for action by the International Criminal Court, a body that conservatives have distrusted from the start. Sargent is blown away that a candidate advised by John Bolton could be calling for ICC action.

[T]he United States would not accept the ICC under George W. Bush — and indeed, one of Romney’s own top advisers has said that Obama’s embrace of it reveals his weakness and passivity on national security, and his unwillingness to exercise international leadership.

John Bolton, the former U.N. Ambassador under Bush who is said to be one of the only top foreign policy advisers Romney actually listens to, wrote a Wall Street Journal Op ed in March of 2011 attacking the ICC and Obama, when Obama came out in support of the U.N. Security Council decision to refer Libya’s Moammar Gadhafi to the ICC for prosecution. Bolton wrote that the ICC is “one of the world’s most illegitimate multilateral institutions,” adding that invoking it was an “abdication of responsibility” on Obama’s part.

Sargent shouldn't be so surprised, and he has radically simplified the Bush administration's position on the ICC. In fact, John Bolton ultimately lost the argument about the ICC during the second Bush administration (after mostly winning internal battles during the first term).  Following advice from Secretary of State Condoleezza Rice, State Department legal adviser John Bellinger, and (later) from top Romney advisor Richard Williamson, the Bush administration supported and defended the ICC's role in Sudan. At certain moments, in fact, the Bush administration proved even more supportive of the court than the British and the French.

In so doing, President Bush expressly overruled advisers like Bolton who wanted to maintain a consistent and vigorous marginalization campaign toward the court. Faced with real life choices, Bush chose a thoroughly pragmatic approach: he supported the work of the court when it suited U.S. interests and strategy without unequivocally embracing the institution (and without formally joining it). With some modifications, the Obama administration has continued that approach. For all Sargent's shock, it wouldn't be at all surprising if a Romney administration stayed on the path that Bush and Obama have constructed.

With all that said, the chances of an actual ICC case against Ahmadinejad are remote. Iran is not an ICC member and so the court would only have jurisdiction if the UN Security Council created it (highly unlikely given Moscow and Beijing's veto power). Even if a Security Council referral happened, the ICC prosecutor has discretion over whether and against whom to bring charges. Fiery rhetoric alone almost certainly would not convince the prosecutor to take action.

More: While an actual prosecution is exceedingly unlikely, I should make clear that the Rome Statute does create space for prosecuting incitement to genocide. Article 25(3)(e) of the Statute criminalizes "directly and publicly incit[ing] others to commit genocide." 

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