Romney, let's not quickly indict Ahmadinejad

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

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."

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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.

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.

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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.

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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.