AMICC Examines Remark in US Presidential Debate about Genocide Indictment

The ICC has not been an issue in the presidential campaign, though there has been interest about a remark made by candidate Mitt Romney in the last debate, focused on foreign policy, on October 22. Commentators and bloggers were interested in whether his remark signaled an openness to the ICC. In the segment on Iran, Mr. Romney said:

"Secondly, 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."

The statement raised several questions, including where such an indictment would be made. Mr. Romney's campaign clarified that he was referring to the "World Court" which, according to Talking Points Memo, the campaign aide believed could arrest Mr. Ahmadinejad. Twitter and foreign policy blogs have been abuzz with analysis of the statement, problems with it and the political context.

Here are a few points of clarification in light of Mr. Romney's statement:

Judicial Venue
- "World Court" usually refers to the UN's primary judicial organ, the International Court of Justice (ICJ) which deals with disputes between nations. While it could adjudicate claims regarding the Genocide Convention, as it did in the Serbia case in 2007, the ICJ can neither indict nor arrest individuals, as reportedly suggested by Mr. Romney's campaign.

- US courts, under federal law, as amended by the Genocide Accountability Act of 2007, Public Law 110-151 (December 21, 2007), allows for the prosecution of genocide in US courts if the crime is committed in whole or in part the US or if the offender is a US national, legal alien, habitual resident or is brought to or found in the US after the crime occurred. Incitement charges carry maximum penalties of $500,000 or five years imprisonment. Unless Mr. Ahmadinejad were brought to or found in the US, an indictment in the US is unlikely.

- The ICC does not now have jurisdiction over the territories or citizens of Iran or Israel, at least one of which would be required in order to bring a case against an Iranian national for statements intended to incite crimes on Israeli territory. If it did, the Prosecutor could not act without a State Party referral or permission from the Pre-Trial Chamber.

- In the absence of such jurisdiction, the ICC could not act without a referral from the UN Security Council - the near certainty of a veto by China or Russia makes this unlikely.

Alleged Crimes
- Incitement to genocide is one of the crimes under the Rome Statute (Article 6; Article 25(3)(e): "In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person ... [i]n respect of the crime of genocide, directly and publicly incites others to commit genocide").

- The factual accuracy of Mr. Ahmadinejad's alleged incitement has been the subject of fact-checking. The findings so far are unclear as to the circumstances and sources of his alleged statements about Israel.