It has become fashionable in certain circles to call for the president of Iran to be charged with genocide incitement because of his virulently anti-Israel remarks.
During Monday’s president’s debate, Mitt Romney vowed that if he gets to the White House, he will “make sure that [Mahmoud] Ahmadinejad is indicted under the Genocide Convention,” a campaign promise Romney has made since 2007.
It’s an easy bandwagon to get on. For the past five years, bipartisan voices in Congress have filed resolutions declaring Ahmadinejad’s remarks an international crime. This fall, Senator Kirsten Gillibrand of New York garnered bipartisan support for a bill that calls on the United Nations Security Council to ask the prosecutor of the International Criminal Court to investigate.
But there are a lot of reasons to view these calls as empty political posturing. If Congress really wanted to indict Ahmadinejad, it would change the American law that makes it difficult to file such charges right here in the United States.
Genocide, defined as the “intent to destroy, in whole or in part, a national, ethnic, racial, or religious group,” is a crime of universal jurisdiction. It can be tried in courts around the world. But American law sets a high bar: Charges can only be brought if someone has tried to eliminate a “substantial part” of a group. A few deaths won’t cut it. Incitement can only be charged if someone has “directly and publicly” incited another person to commit genocide.
A genocide prosecution for Ahmadinejad would likely disintegrate under the weight of the following questions: Have his words caused any deaths? Are they likely to cause them in the future? Did he really say Israel should be wiped off the map or was it just a bad translation? Did he directly threaten Israel, or simply predict its collapse? Is he advocating for Israel’s military destruction, or for the Jewish homeland to be changed into a homeland for Muslims, Christians, and non-immigrant Jews?
Ironically, while American politicians are raising questions about hypothetical hearings and potential massacres, they are ignoring the very real crimes the Iranian regime has already committed and actual hearings that are already taking place.
Today, an historic event is unfolding: Survivors are giving testimony about a wave of executions carried out in Iran between 1981 to 1988.
More than 10,000 leftists, communists, and other opponents of the regime were executed for their political beliefs, a crime against humanity under international law. After a fatwa by Supreme Leader Ayatollah Khomeini, the killings accelerated. Prisoners were woken in their jail cells in the middle of the night, hastily sentenced to death, and executed moments later. Children as young as 11 were hanged or sent to firing squads. The sound of women being tortured was broadcast on prison loudspeakers.
These crimes might have been erased from our collective memory had a group of courageous survivors and family members of the dead not fought to bring them to light. Five years ago, they approached Payam Akhavan, an Iranian-born human rights lawyer, about charging the Iranian regime in the International Criminal Court. He told them it would be nearly impossible: The prosecutor can’t just start investigating the deaths, because Iran has not signed on to the court. (Neither has the United States.) The United Nations Security Council has the power to set up a special tribunal, but it would be nearly impossible to get it to do that.
But Akhavan, who has spent his career trying to bring justice after mass crimes in Rwanda, Cambodia, and the former Yugoslavia, didn’t want to give up on his own native land. He encouraged another idea: establishing a “people’s court” where survivors present evidence before a respected international panel of judges.
“One of the most important aspects of justice is not punishing individual leaders, but exposing the historical truth with the view of creating a culture of human rights and accountability,” Akhavan said in a telephone interview from The Hague, where the hearings are being held.
So what does Akhavan think of Mitt Romney’s vow to indict Ahmadinejad?
“Presidential candidates may make their own statements for domestic political consumption,” he said. “That is not my concern. My clients are the victims of those atrocities, and I know what they want. They don’t want political games by either American political leaders or Iranian political leaders. They want justice.”