The Daily Telegraph
Thursday, 15 February 2007
By Joshua Rozenberg, Legal Editor
(Excerpts)
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? …
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”…
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…
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…
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.