Skip to main content
Part of complete coverage on
 

Romney, let's not quickly indict Ahmadinejad

By William Burke-White, Special to CNN
updated 7:42 PM EDT, Thu October 25, 2012
STORY HIGHLIGHTS
  • Mitt Romney proposed indicting Mahmoud Ahmadinejad for inciting genocide
  • William Burke-White: Romney's idea is legally challenging and diplomatically wrongheaded
  • Should Ahmadinejad actually be tried, he may well be acquitted, Burke-White says
  • Burke-White: For now, America must use diplomacy in dealing with Iran

Editor's note: William Burke-White is a professor of law and deputy dean at the University of Pennsylvania Law School. From 2009 to 2011, he was on Secretary Hillary Clinton's Policy Planning Staff at the U.S. Department of State.

(CNN) -- In Monday night's final presidential debate, Mitt Romney made the unusual suggestion that the international criminal justice system be used to ratchet up diplomatic pressure on Iran. Specifically, he vowed that if he were elected, "I'd make sure that (Iranian President Mahmoud) Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation."

It was a fleeting talking point, perhaps reflecting Romney's continuing shift to the center in the campaign's closing weeks. But his implicit embrace of the International Criminal Court, which is where Ahmadinejad would have to be tried, has the hallmarks of a candidate who has impetuously seized a debate prep briefing book memo as a means to differentiate his policy from that of President Barack Obama, without actually having thought through a policy that is at once legally challenging and diplomatically wrongheaded.

William Burke-White
William Burke-White

Republicans have disparaged the ICC since well before it was established in 2002. President George W. Bush tried to kill it by "unsigning" the treaty President Bill Clinton and more than 100 other world leaders signed. When Obama was supportive of referring Libya's Moammar Gadhafi to the ICC for prosecution, John Bolton, Bush's former U.N. ambassador and a Romney foreign policy adviser, dismissed the court as "one of the world's most illegitimate multilateral institutions," adding that the president's stance was an "abdication of responsibility."

Opinion: Muslims must engage politically, look outside themselves

Still, Romney's reference to prosecuting Ahmadinejad could be viewed as a welcome change of heart about the efficacy of international criminal justice -- that is, if this proposal were not so ill thought out.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



The idea makes little sense, which is why the Obama administration has previously considered and rejected it. There are at least four difficulties.

First, Iran is not a party to the Rome Statute of the International Criminal Court. This means that Ahmadinejad cannot be prosecuted unless the U.N. Security Council refers the case to the ICC, which is a long shot since Russia and China will likely veto the move.

Talking tough on Iran
The debate over Iran, horses & bayonets

Second, even if Ahmadinejad were indicted, the chance of his being arrested is nil. After all, Sudanese President Omar al-Bashir, who has been indicted for war crimes and crimes against humanity, is doing fine in his country. The United States and its allies risk a similar spectacle with Ahmadinejad running around Iran flaunting international justice, which almost makes a bad situation worse.

Third, incitement of genocide is one of the hardest crimes in the world to prove. Prosecutors must show that someone has an intention to destroy, in whole or in part, a national, ethnic, racial or religious group, and that their words were meant to cause others to do so.

That has happened exactly once, in a case against three Rwandans who had used the radio to incite the killing of Rwandan Tutsis. While convicted of a number of crimes, their conviction was overturned in part on appeal because the tribunal found many of their broadcasts lacking sufficiently direct connection to the genocide in Rwanda.

It is entirely possible that should Ahmadinejad actually be tried, he would be acquitted on the grounds that his "hate speech" -- while horrific -- did not meet the legal threshold for incitement to genocide. An innocent verdict would give Ahmadinejad a dangerous free hand.

Fourth, and perhaps most importantly, Romney's idea runs the risk of undermining the U.S. diplomatic efforts. Our current strategy is to exert as much pressure as possible, while offering Iran a pathway back into the international community if it ends its nuclear program.

If Ahmadinejad were indicted, negotiations may well break down.

Opinion: Cool Obama, square Romney

Recall the challenges of dealing with Slobodan Milosevic in the late 1990s after he was indicated by the tribunal for the former Yugoslavia. The United States and its allies cannot halt an ICC indictment, which becomes legally binding and is not easily susceptible to political or diplomatic influence. That's one of the great virtues of the international criminal justice system. But in this case, it would be a liability. The danger is that such an indictment becomes all stick and no carrot in our efforts to push Iran to relinquish its nuclear program.

Kudos to Romney for embracing international criminal justice. The idea of indicting Ahmadinejad for incitement to genocide must have struck him as a smart new way to appear muscular while not being hawkish on the debate stage. But it would be a bad idea to pursue.

Obama has been extraordinarily effective in applying pressure on Iran, which Romney endorsed as the right thing to do on Monday night. But the United States must maintain flexibility in the way that pressure is deployed. Once Ahmadinejad is out of power, he should face the hand of justice. Until then, America and its allies must rely on tough diplomacy.

The opinions expressed in this commentary are solely those of William Burke-White.

ADVERTISEMENT
Part of complete coverage on
updated 12:26 PM EDT, Wed August 27, 2014
The death of Douglas McAuthur McCain, the first American killed fighting for ISIS, highlights the pull of Syria's war for Western jihadists, writes Peter Bergen.
updated 6:42 PM EDT, Tue August 26, 2014
Former ambassador to Syria Robert Ford says the West should be helping moderates in the Syrian armed opposition end the al-Assad regime and form a government to focus on driving ISIS out
updated 9:21 AM EDT, Wed August 27, 2014
Ruben Navarrette says a great country does not deport thousands of vulnerable, unaccompanied minors who fled in fear for their lives
updated 9:19 AM EDT, Wed August 27, 2014
Robert McIntyre says Congress is the culprit for letting Burger King pay lower taxes after merging with Tim Hortons.
updated 7:35 PM EDT, Tue August 26, 2014
Wesley Clark says the U.S. can offer support to its Islamic friends in the region most threatened by ISIS, but it can't fight their war
updated 7:26 AM EDT, Wed August 27, 2014
Jeff Yang says the tech sector's diversity numbers are embarrassing and the big players need to do more.
updated 4:53 PM EDT, Tue August 26, 2014
America's painful struggle with racism has often brought great satisfaction to the country's rivals, critics, and foes. The killing of Michael Brown and its tumultuous aftermath has been a bonanza.
updated 4:19 PM EDT, Tue August 26, 2014
Ed Bark says in this Emmy year, broadcasters CBS, ABC and PBS can all say they matched or exceeded HBO. These days that's no small feat
updated 3:19 PM EDT, Tue August 26, 2014
Rick Martin says the death of Robin Williams brought back memories of his own battle facing down depression as a young man
updated 11:58 AM EDT, Tue August 26, 2014
David Perry asks: What's the best way for police officers to handle people with psychiatric disabilities?
updated 3:50 PM EDT, Mon August 25, 2014
Julian Zelizer says it's not crazy to think Mitt Romney would be able to end up at the top of the GOP ticket in 2016
updated 4:52 PM EDT, Mon August 25, 2014
Roxanne Jones and her girlfriends would cheer from the sidelines for the boys playing Little League. But they really wanted to play. Now Mo'ne Davis shows the world that girls really can throw.
updated 12:29 PM EDT, Mon August 25, 2014
Peter Bergen and Emily Schneider say a YouTube video apparently posted by ISIS seems to show that the group has a surveillance drone, highlighting a new reality: Terrorist groups have technology once only used by states
updated 5:04 PM EDT, Mon August 25, 2014
Kimberly Norwood is a black mom who lives in an affluent neighborhood not far from Ferguson, but she has the same fears for her children as people in that troubled town do
updated 5:45 PM EDT, Fri August 22, 2014
It apparently has worked for France, say Peter Bergen and Emily Schneider, but carries uncomfortable risks. When it comes to kidnappings, nations face grim options.
updated 1:27 PM EDT, Tue August 26, 2014
John Bare says the Ice Bucket Challenge signals a new kind of activism and peer-to-peer fund-raising.
updated 8:31 AM EDT, Fri August 22, 2014
James Dawes says calling ISIS evil over and over again could very well make it harder to stop them.
updated 9:05 PM EDT, Sat August 23, 2014
As the inquiry into the shooting of Michael Brown continues, critics question the prosecutor's impartiality.
updated 6:47 PM EDT, Fri August 22, 2014
Newt Gingrich says it's troubling that a vicious group like ISIS can recruit so many young men from Britain.
updated 10:50 AM EDT, Thu August 21, 2014
David Weinberger says Twitter and other social networks have been vested with a responsibility, and a trust, they did not ask for.
updated 7:03 AM EDT, Fri August 22, 2014
John Inazu says the slogan "We are Ferguson" is meant to express empathy and solidarity. It's not true: Not all of us live in those circumstances. But we all made them.
updated 8:23 AM EDT, Fri August 22, 2014
Retired Lt. Gen. Mark Hertling says he learned that the territory ISIS wants to control is amazingly complex.
updated 3:51 PM EDT, Wed August 20, 2014
Cerue Garlo says Liberia is desperate for help amid a Ebola outbreak that has touched every aspect of life.
updated 1:42 PM EDT, Thu August 21, 2014
Eric Liu says Republicans who want to restrict voting may win now, but the party will suffer in the long term.
updated 11:38 AM EDT, Thu August 21, 2014
Jay Parini: Jesus, Pope and now researchers agree: Wealth decreases our ability to sympathize with the poor.
updated 8:00 AM EDT, Thu August 21, 2014
Judy Melinek offers a medical examiner's perspective on what happens when police kill people like Michael Brown.
updated 6:03 PM EDT, Tue August 19, 2014
It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades, writes Kara Dansky.
updated 1:27 PM EDT, Wed August 20, 2014
Maria Haberfeld: People who are unfamiliar with police work can reasonably ask, why was an unarmed man shot so many times, and why was deadly force used at all?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT