OpinionIran in the World PressFour ways to act against Ahmadinejad

Four ways to act against Ahmadinejad

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Daily Telegraph: Diplomatic pressure should be targeted at isolating the president of Iran before further, fateful steps are contemplated, we argued in our leader columns this week. Quite right. But what prospect is there of using the courts to undermine Mahmoud Ahmadinejad? The Daily Telegraph

By Joshua Rozenberg, Legal Editor

Diplomatic pressure should be targeted at isolating the president of Iran before further, fateful steps are contemplated, we argued in our leader columns this week. Quite right. But what prospect is there of using the courts to undermine Mahmoud Ahmadinejad?

That was one of the proposals urged on MPs last month by an international delegation headed by the former Israeli prime minister Benjamin Netanyahu. Within three years, Mr Netanyahu believes, Iran will have nuclear weapons that it could use to wipe out six million Jews.

“The real danger is that Iran could become one gigantic suicide bomber,” he said. An Iranian nuclear attack – even a “small” one – would not just kill Israelis of all faiths. It would also lead to the collapse of the post-war consensus against nuclear proliferation – which seemed to gain tentative support from North Korea this week.

So Mr Netanyahu was trying to drum up international support for moves against Iran, falling short of military action, such as encouraging institutional investors to withdraw funds from Iran.

And there was also the legal option. The leader of Israel’s largest opposition party argued that Mr Ahmadinejad should be brought to trial for incitement to genocide.

On what evidence? In October 2005, the Iranian president said that “Israel must be wiped off the map”. He has made numerous similar statements subsequently, for example: “We say this fake regime [Israel”> cannot logically continue to live” and “they should know that they are nearing the last days of their lives”.

Irwin Cotler, a former law professor who served as Canada’s attorney general and minister of justice until last year, outlined four ways in which legal action could be taken against Mr Ahmadinejad.

The first would involve the Convention on the Prevention and Punishment of Genocide, an international treaty that came into force in 1951. Its 138 parties, which include Iran, agree that genocide is a crime under international law which they undertake to prevent and punish. But the treaty is not confined to genocide itself, nor to conspiracy, complicity and attempts. Among the other acts punishable under the convention is “direct and public incitement to commit genocide”. Offenders “shall be punished whether they are constitutionally responsible rulers, public officials or private individuals”.

There is obviously scope for arguing over whether Mr Ahmadinejad’s words amount to direct and public incitement. He might claim that they were mere rhetoric, which nobody was expected to take seriously. But he should be in no doubt that incitement to genocide is an offence. Nine men have been convicted of it by the International Criminal Tribunal for Rwanda, including a former prime minister.

Any country that has signed the genocide convention may call on the United Nations to take action under it. But no state has yet referred Mr Ahmadinejad’s exhortations to the Security Council. In terms of practical politics, there seems little prospect that the UN will take action. So that brings us to the second of Mr Cotler’s options.

Signatories to the convention can ask the International Court of Justice to deal with a dispute over a state’s responsibility for incitement to genocide. In other words, Britain, America or pretty well any other country could request a ruling from the UN court over whether Iran was responsible for its president’s remarks and what amends the country should make. That would take years, however, and might have limited practical effect.

So Mr Cotler’s third option would involve an entirely different court in The Hague, the International Criminal Court. This was established in 1998 to try the most serious crimes of concern to the international community, including genocide, crimes against humanity and war crimes.

It operates under the Rome Statute, which specifically provides that an individual shall be criminally liable if he “directly and publicly incites others to commit genocide”. Again, official capacity as a head of state or head of government does not exempt a person from criminal responsibility.

The main problem here is that Iran is not a party to the Rome Statute, which means that the prosecutor cannot begin an investigation at the request of another member state or on his own initiative.

However, the case against Mr Ahmadinejad could still be referred by the UN Security Council, under its powers to deal with threats to peace and acts of aggression. Again – more’s the pity – practical politics makes it unlikely that the UN will take the necessary action against Iran.

So we come to Mr Cotler’s fourth option, which is for an individual country to take action against Mr Ahmadinejad under its own national laws. This may prove difficult, as states do not usually claim jurisdiction over crimes committed abroad by nationals of another state.

But there are exceptions. Under what is known as the protective or security principle, states can try foreigners for crimes abroad that are regarded as injurious to the state’s security. It was on this basis that Israel tried Adolf Eichmann under the genocide convention.

And there is also the principle of universality. States, including Britain, assume jurisdiction over some of most serious crimes against humanity, wherever they are committed. That was how an Afghan warlord received a 20-year sentence at the Old Bailey in 2005 for torture and hostage-taking in his own country.

Again, though, there are problems. Incitement to genocide is not an offence over which states have yet asserted universal jurisdiction and Mr Ahmadinejad cannot be forced to leave Iran and stand trial.

However, even issuing an indictment against him would have a significant public impact. And it would make it harder for him to travel abroad.

There is one thing, though, that our courts can do – even though it does not directly affect Mr Ahmadinejad. Iran’s main opposition group, the People’s Mojahedin Organisation of Iran, was banned in Britain as a terrorist organisation in 2001. But that was the year in which the group says it renounced military action, transforming itself into a legitimate political resistance movement.

As I reported last week, an application will be made this year to the Proscribed Organisations Appeal Commission, an independent tribunal created by the Terrorism Act 2000 to hear appeals against the Home Secretary’s refusal to remove an organisation from the banned list. The commission, chaired by the retired appeal judge Sir Charles Mantell, must allow an appeal if it thinks a court would have granted an application for judicial review.

What is interesting about the Act is that it allows an application to be made to the commission “by any person affected by the organisation’s proscription”. No doubt Parliament was thinking that this would cover potential members. But the application is being made by the former Conservative Home Secretary Lord Waddington, the former Labour solicitor general Lord Archer of Sandwell, and more than 30 other MPs and peers.

The commission is unlikely to feel pressured by the eminence of these applicants.

In the meantime, though, the Government should think carefully about whether it wants to support a man who has incited his people to mass murder while continuing to ban those who oppose him.

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