What exactly does Romney think the presidency entails?

TW: genocide, antisemitism

Yesterday, I noted sadly that there was virtually no chance of Romney being pressed on how his past statements suggested that he viewed the office of the United States’ presidency as primarily a kingly position for providing moral example, rather than a key  position in influencing regulatory policies. Although this was still overlooked, Romney graciously gave us another glimpse into his very… unusual view on how the presidency functions during last night’s debate. I am, of course, talking about his call for charging Iranian President Ahmadinejad with genocide. Romney baldly stated during the debate that “[h]is words amount to genocide incitation” and afterwards one of his aides is recorded as having said something along the lines of “the World Court could arrest Mahmoud Ahmadinejad, cutting off the regime’s leadership in one fell swoop”.

There’s many factual problems there. To begin with, Ahmadinejad is the President within a government that has both a parliamentary legislature (which selects a Prime Minister who has greater control over domestic policy than any President) and theocratic oversight (which clearly exerts some control over Ahmadinejad’s potential policy decisions). Additionally, the contemporary Iranian government is very unique in not providing control of the military to the presidency (which is understandable given the 26 years of military-like violence from the SAVAK secret police under the previous regime). In short, there are numerous positions in the Iranian government that even Wikipedia points to as being more powerful.

Likewise, the words that were tantamount to genocide have been contested as such by even Israeli officials. Even among the supposedly targeted population, it’s not unanimously understood that there was intent to commit genocide behind a single statement years ago.

Lastly, as noted in the article covering the aide’s statement, there is no “World Court” but rather an International Criminal Court (ICC), which is ostensibly what the anonymous Romney aide sent out to spin this line meant to reference. In addition to that misnomer and a staggering misunderstanding of the political structures in Iran and the probable meaning of the statement, Romney’s original statement and the follow-up by an aide suggest a very… interesting interpretation of both international precedent, domestic law, and especially the interaction between the two.

Romney’s initial statement seems perfectly measured. Suggesting charging Ahmadinejad with intent is a reasonable argument based on the clear labeling of intent as sufficient to convict a person of genocide in its legal definition. As the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) puts it, genocide is-

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: {a} Killing members of the group; {b} Causing serious bodily or mental harm to members of the group; {c} Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or part; {d} Imposing measures intended to prevent births within the group; {e} Forcibly transferring children of the group to another group. The following acts shall be punishable: {a} Genocide; {b} Conspiracy to commit genocide; {c} Direct and public incitement to commit genocide; {d} Attempt to commit genocide; {e} Complicity in genocide.

Right there – intent is what unifies various state policies (and potentially their effects too) as together a “genocide”. Even simply advocating those policies is grounds for a trial. Except of course, there’s the small matter of precedent. The two sets of convictions provided by the ICC under the CPPCG did incorporate intent, as required, and advocacy, but only when it was already established that selective killings had happened. Intent merely identified those killings as “genocidal” and clarified an intent to do more. Advocacy was likewise legally attached to the action itself. Without significant mass killings, there would likely be no case. What’s more, many examples of recent mass killings organized or tolerated by states can be provided that didn’t lead to convictions or even prosecutions – even that isn’t a guarantee of an ICC trial or guilty decision.

Admittedly, there have been legal cases involving a more active evaluation of intent, most famously the case against Nikola Jorgić for involvement in the genocide of Muslim communities in the former Yugoslavia. The decision reached was that “a biological-physical destruction [of the targets] was not necessary” and “destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together” was alone sufficient. A similar argument could (probably unsuccessfully) be raised against Ahmadinejad. That being said, the highlighting of intent still took place in a case also concerning Jorgić’s leadership in organizing or performing at least 30 murders. What precedent this very intent-heavy case provides is limited in that it still marries intent to observed actions.

Furthermore, it’s note-worthy that the case against Jorgić was not part of the ICC, but a decision by the Oberlandesgericht (high regional court) of Düsseldorf which merely involved evaluating international law in a domestic German case. Even if, somehow, a future President Romney hoped to stretch Jorgić to provide basis for a case against Ahmadinejad only on the grounds of either intending or inciting genocide, it would probably have to be a domestic case. Considering that would require his base to reverse their existing opinions on using international law in domestic cases, that seems like a difficult hypothetical to imagine.

(I’m sure this will go over swimmingly. Image originally from here.)

This paranoia of the (Satanic?) potential for international law to be used against the United States is not only part of popular sentiment, but also our very ratification of the CPPCG, which stipulates

before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case […and] nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.

As they say in politics, the optics of this are very bad. With domestic action politically risky, a hypothetical President Romney might try to force this through to the ICC, where it could be easily seen as the United States doing to Iran what it categorically forbid anyone from doing to it. Much like Romney’s international tour, such actions could easily reignite bitter resentment of the United States, which already led to many countries to add statements to their ratification of the treaty condemning the US’s self exemption. Mexico, a key ally, in fact ruled the declaration of the US to be “invalid” and was joined by numerous European allies which argued that it contradicted the very treaty signed and existing international law precedents. The comparison to the USSR and other dictatorships that waived the application of the treaty to themselves is decidedly unflattering.

Ultimately, the choice Romney faces in clarifying this question is between admitting he wants to maintain an international double standard strongly associated with despotic rivals of the United States or if he wants to make domestic rulings on international law equally farcical. In either case, he’s shown a commitment to the law creating specific political outcomes – rather than being universally applied. Rather than undermining the legal concept of habeas corpus by allowing imprisonment without criminal charges, this approach simultaneously immunizes certain actors from charges (like the United States from criminal accusations of genocide) and expands (or reinstitutes) legal grounds for charges against others (like Ahmadinejad being tried on the grounds of inciting or having intent to commit genocide based on an unclear statement). As a result, even if habeas corpus isn’t repealed, the new legal context Romney’s proposing makes it nonsensical. His idea seems impossible without making the United States a nation of men, rather than a nation of laws. And the man on top would have to be called a king.

This is not only an indication like earlier statements that Romney favors a pseudo-royalist governance, but rather inegalitarian judicial policy. This seems to be a growing pattern that statements he makes have implications of dramatically reworking the political landscape of the United States in decidedly undemocratic ways.

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