The idea for indicting the Iranian autocrat Ahmedinajad for his incitement of genocide of the Israeli people has been around for awhile.
It was well-articulated in an op-ed piece in the Wall Street Journal in May 2012 by Robert Bernstein, once chair of Human Rights Watch and now head of his own organization, Advancing Human Rights, which seems to be more even-handed that HRW about how Israel and the authoritarian regimes of the Middle East are addressed; a lawyer Stuart Rabinowitz who has worked on human rights missions; and Irwin Cotler, former attorney general of Canada who has long been a defender of human rights.
This idea has been discussed a fair amount in both Jewish communities and various human rights groups. Jewish groups are divided on it as they are on many issues now. Human rights groups, including HRW, tend to disagree with making this a priority, because they fear it sounds too much like suppressing free speech, even repugnant speech, which is what the Iranian mullahs do.
They also fear that the vague nature of the threat might not constitute an actual "incitement of imminent violence" -- under the Supreme Court definition in Brandenburg v. Ohio -- and that in an international court, it wouldn't stand up, and therefore weaken the cause of censuring Ahmedinajad and would undermine Israel's efforts to defend itself legitimately.
People argue whether Ahmedinajad even ever said such a thing, but that's entirely not the issue, as he is on the record, in public, at the UN, again and again, advocating viciously against Israel, to the point that all the Western nations walk out. There's no question Iran under its present leadership would like to see Israel sink into the sea as it is now and instead be taken over by Palestinians.
What court could try such a theoretical genocide incitement case? The International Criminal Court has dealt with verbal incitement to genocide in regard to Rwanda, but it's only one case, and not really what the ICC tends to focus on. Neither Iran or Israel signed the ICC statute.
The human rights authors suggest various creative steps on how this could be done at the ICJ, or via the Security Council:
Such precedents should lead state parties to the Genocide Convention to file complaints against Iran—which is also party to the convention—before the International Court of Justice. Member states should also request that the U.N. Security Council pass a resolution condemning Iran's incitement to genocide. They should also request that the council refer the matter to the prosecutor of the International Criminal Court, who can indict Khamenei, Ahmadinejad and their collaborators, as it has Sudanese President Omar al-Bashir. This threat of criminal prosecution should be added to existing diplomatic and economic pressures meant to deter terrorism and nuclear-weapons development by Tehran.
The ICJ is probably the only theoretically possible way this could be done, but of course, it opens the door to countries bringing frivolous suits against Israel to the ICJ which they've loved to do and have tried to do in the past.
The UN Security Council will not refer anything of this nature as it is too divided. The UNSC can't even agree on what to do about Syria with the permanent members Russian and Chinese casting vetos that favour Syria, and various fellow travelers among the elected members chiming in. The UNSC could never get to the point now of even referring the Syria case -- far more real and atrocious than the still-theoretical Ahmedinajad incitement -- so it won't make up its mind to act on indicting Ahmedinajad. It's rare for the SC to deal with individuals in this fashion in any event.
Each day that Israel isn't sunk into the sea by Iran of course makes Ahmedinajad seem as if he didn't have "incitement to imminent violence" but just a general sort of hate -- the kind that can "pass" under a Brandenburg reading -- like indeed the anti-Muslim hate video that sparked unrest around the Middle East and was seized on as an item for the Obama Administration to apologize for.
Even so, I'm all for continuing to think how this could be done and perhaps even attempting it -- but first after sitting down and really gaming out how the opposition will address it. All it takes to diminish the good idea of gaining accountability for the I-ranter is for the usual suspects to decide that when Obama says it's time for Assad to go, he's "inciting genocide," too, because he is bolstering the false hope of the opposition in Syria that the US and the world will come to their aid and help them get rid of Assad -- instead of standing idly by while they get slaughtered. This really bears thinking through.
The point that Romney is really making, however, isn't so much the literalism of this particular case -- as the Iranian leader could be indicted -- and is eminently indictable in an ideal world -- for lots, lots more, involving jailing, torturing and killing his own people and harming Jews within his own country. What he's saying is that we need to think of ways besides "killing our way out" of the conflicts in the Middle East and think of ways to get the Islamic world to cease the embrace or the tacit approval of violence. That means articulating right and wrong so that it becomes part of the international vernacular. So this means instead of cutting international broadcasting, we should be increasing it and making it better, and it means other kinds of "soft war" interventions like circumvention technology, helping dissident groups get published, and so on. The sort of thing Bernstein has attempted on a relative shoestring with support of cyberdissidents.org which could be supported at a grander level if a new Administration focused on it.
Americans love to watch the British parliamentary debates on television, because the Prime Minister comes in for such a rumble when he comes out and faces all the wigged members of parliament. There are more than two parties, of course, and there is a richness and drama of debate that we never have in our Congress.
The presidential elections seem to be the closest thing to this peppering of the prime minister of questions -- finally -- given that Obama just doesn't "do" press conferences and doesn't debate so much as name-call and "fact-check" and "opp-research" through these encounters -- not debating different ideas and strategies, but spending time on emotional anecdotes, or trying to play "gotcha" with Romney and claiming he is "all over the map".
What I got a sense of from the Romney campaign here was that they are willing to come up with some different ideas to do something about Iran other than just fret about its bomb. The indictment of Ahmedinajad may not be the best or most practical idea, but they should keep them coming as we do need a variety of ways to deter Iran and make it possible for moderates to be encouraged and to succeed.