YESTERDAY during the foreign-policy debate, Mitt Romney promised that as president, he would indict Mahmoud Ahmadinejad, the president of Iran, for incitement to genocide. One of Mr Romney's senior advisors explained he had been referring to an indictment at the "World Court"—presumably meaning the International Criminal Court in The Hague, since the International Court of Justice doesn't carry out criminal prosecutions of individuals. I've been covering the international courts in The Hague for over a year, and I've never heard of any case remotely like this being brought there; so my first thought was that this was the sort of campaign nonsense nobody should pay any attention to. But then I thought, why not have a quick go at trying to understand what Mr Romney might have meant? Would it actually be possible to charge Mr Ahmadinejad with incitement to genocide?
So I called up Guénaël Mettraux, a lawyer I've previously talked to while covering the trials of Charles Taylor, the former president of Liberia, and Ratko Mladic, the former Bosnian Serb military leader. Mr Mettraux has served as counsel for several defendants at the International Criminal Tribunal for the former Yugoslavia, and has consulted for the International Criminal Court and for the Extraordinary Chambers in the Courts of Cambodia. He is the author of "Perspectives on the Nuremberg Trial" and "The Law of Command Responsibility". (I should note that he has a somewhat hard-bitten perspective on the way the international court system works, and thinks that the interests of relevant nation-states play a large role in deciding who goes to trial.)
Anyway, to summarise his answer: it's not impossible. It's just very, very unlikely to work. Here's a lightly edited transcript of our interview.
MS: Do you have a take on whether it would be possible to charge Mahmoud Ahmadinejad with incitement to genocide?
Guénaël Mettraux: It depends on the political will. Knowing the place of Iran in the world, the chance is close to zero. But look, every international criminal-law case depends on the alignment of the political stars. It's not a matter of wanting to do it, or of the merit of the case, it's whether it’s politically feasible.
MS: So how would that actually work?
Guénaël Mettraux: There are two possible routes. One would be a national tribunal, a prosecutor in a national court who is willing to take on that case. Many jurisdictions could claim universal jurisdiction over such a crime. It might be in a country where there were people who could claim they were victims of the crime. Or alternatively, you would have an international tribunal that would be competent. There, you have two possibilities. Either you have an ad hoc tribunal [like those set up to prosecute war crimes in Yugoslavia and Rwanda - ed.], or else you would have a referral by the UN Security Council to the International Criminal Court to investigate the alleged crime of Mr Ahmadinejad.
MS: So you could in fact bring a case like this?
Guénaël Mettraux: Well the problem with the crime in question is, you’d have a hard time establishing that anyone truly is a victim at this stage. It’s highly theoretical, but imagine you have an Israeli citizen who is also a French citizen, or a group of them. They could go to the prosecutor of the ICC saying we are victims of Mr Ahmadinejad’s crime and we are citizens of a state party to the ICC, and therefore you have the power to investigate since the crime in question has no particular geographical location—a little statutory annoyance.
[Ed. note: This part requires a bit of elucidation. Under the Rome statute establishing the ICC, the court has jurisdiction over crimes committed on the territory of any states that are parties to the treaty. The problem is, neither Iran, Israel, or the US are parties to the treaty. The court can also investigate alleged crimes committed anywhere, if they're referred by vote of the UN Security Council. But if America were unable to get the security council to approve a referral and nevertheless wanted to launch a case, Mr Mettraux wrote me in a subsequent email, it would probably need to do two things. First, it would need to claim that incitement to genocide was a crime with no geographical location, which could be said to be committed anywhere where the incitement was heard or broadcast. Then, since America is not a party to the Rome statute, it would need to find a proxy, either a state party or a citizen of a state party, to initiate a case.]
Guénaël Mettraux (cont'd): An added issue with the crime of incitement is, it’s exceptional that it’s charged without the crime having actually been committed. If you look, for example, at the international tribunal for Rwanda, incitement to genocide was charged as a backup to charges of actual commission of genocide. If you can’t prove the defendant actually committed or otherwise contributed to genocide himself, you charge him with incitement. Charging without actual commission is theoretically possible, but you would have a hard time proving that the crime was committed and worth prosecuting.
MS: But private individuals can actually initiate such charges at the ICC?
Guénaël Mettraux: No, in the sense that they can’t force a prosecution. They can send information to the prosecutor asking them to take steps to investigate the crime. They can’t as citizens request the authorities to commence criminal prosecution. They can formalise a complaint to the prosecutor, and if the prosecutor is satisfied, they could theoretically take on such a case. The prosecutor has the competence to initiate a case proprio motu (ie, on his own initiative). But the fact is, the prosecutor of the ICC has never done that up to this point. To date we have two sets of cases before the ICC: either a referral by the UN Security Council, as in Darfur or Libya, or a referral by a state party itself, as in the Democratic Republic of the Congo or the Central African Republic.
MS: And the fact that Iran is not a party to the ICC doesn't affect things?
Guénaël Mettraux: Well, the fact that Iran isn’t a party to the Rome statute means one route of jurisdictional competence is closed. So you can’t rely on that. But if you were to find a number of perpetrators or even victims who were nationals of a state party, subject to the little legal trick discussed before—namely, incitement to genocide is committed on the territory of any and every state, you could imagine initiating it on that basis. Creative, but where the mind is keen….
MS: So, the point of this article is... [Explains Mitt Romney's quick reference to indictment in yesterday's debate]
Guénaël Mettraux: Very interesting! So now I can call up Mahmoud Ahmadinejad and offer him my services as defence counsel at the ICC!
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