Gov. Romney’s Statement About Indicting Ahmadinejad for Incitement to Genocide

Several people asked me what I thought about Gov. Romney’s statement during the third presidential debate about indicting Iranian president Mahmoud Ahmadinejad for incitement to genocide:

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.

I’m not an expert on international criminal prosecutions; my tentative sense is that there are pluses and minuses to the use of international criminal courts for going after war criminals (as in Rwanda, the former Yugoslavia, and the like), and I incline towards skepticism about such institutions, but I haven’t seriously studied the question. As to incitement to genocide, I’m also skeptical of applying such notions outside the very narrow zone of someone broadcasting in the middle of a massive mega-pogrom (my sense is that this indeed happened in Rwanda). Propagandists for a terrorist group that are part of the terrorist group can, I think, be prosecuted as conspirators in the group’s terrorist attacks, just as propagandists for an enemy army that are part of that army can be rightly targeted for killing, and citizens who participated in the enemy army as propagandists can be indicted for treason, see the Axis Sally case. But there the focus is on the conspiracy to achieve a particular result, and not on the speech as such (a thorny but necessary distinction, which arises in a wide range of ordinary conspiracy cases as well).

Yet the propriety of incitement-to-genocide criminal prosecutions, I think, is beside the point, because Ahmadinejad’s misdeeds have little to do with “incitement” as we normally understand it. Incitement is when a speaker encourages action by those with the power to act. (Under American law, this would require intentionally encouraging imminent illegal action in a way that makes the action likely to take place.) But Ahmadinejad isn’t some propagandist who is trying to encourage others to kill Israelis or Jews. The worry is that he himself may actually be working on a plan to attack Israel, including with nuclear weapons, either directly or by handing off the weapons to someone who is already willing to use them. Ahmadinejad’s statements aren’t attempts to persuade others to do something — they suggest a desire to take action (either using nuclear weapons or handing them off to someone who will use them) himself or through his minions. What’s more, I suspect this is indeed how Ahmadinejad is perceived by Romney: A danger because of what he is planning to do, not because of what he is urging others to do.

So “incitement” (or, to use the rarer term Romney used, “incitation”) seems like a pretty poor fit for what Ahmadinejad is doing, but “conspiracy” — depending on what we think Ahmadinejad’s actual plans are — might be a better one. This in turns makes me wonder whether Romney was indeed consciously trying to redefine the international law crime of “incitement to genocide,” or instead just used “incitation” as an erroneous label for evidence of conspiracy to commit genocide. A later statement by the campaign seemed to point in that direction (emphasis added), though it’s ambiguous on that score, and doesn’t acknowledge any misstatement:

The First Amendment, like the U.S. Constitution, protects U.S. citizens and residents from overreaching by our government. It does not protect our foreign state adversaries or limit our ability to defend our nation and our friends and allies. At issue is an unfolding Iranian state policy of genocidal war directed against a key ally. This is not about an individual’s ‘speech.’