January 1996, Freetown, Sierra Leone – I was at the American embassy in Freetown, Sierra Leone and had a cup of tea with the humanitarian affairs attaché. Suddenly, the alarm went off and a metallic voice announced: ‘The embassy is temporarily closed’. The humanitarian affairs attaché and I looked outside. On the central square soldiers took up strategic positions. People fled the street. No shots were heard, but soon an ambulance sped by on its way to the airport. ‘Bye-bye Mister President’, said the attaché. On seeing my surprise, he answered, ‘Things got stuck because he didn’t want to step down, so he was offered a scholarship in the UK’.
And that’s how a deposed dictator, Valentine Strasser, started studying law (how ironic) at the University of Warwick in England. That did not stop the misery of the civil war. Still, Strasser’s leaving for university was the start of a road to recovery, elections and a more peaceful society.
President Gbagbo of Ivory Coast could have had the same future as Strasser. In November 2010, the US offered him an attractive position as professor at Boston University in exchange for his resignation as president. Now that the French have removed him from office and handed him over to the local authorities, Gbagbo undoubtedly regrets passing up this nice job. But Ivory Coast citizens would have been the ones to benefit most had he accepted the position. The violent conflict may well have ended sooner.
What will happen to the authoritarian rulers who are, as we speak, under tremendous pressure from their people to resign? Ben Ali of Tunisia was given safe passage to Saudi Arabia; Yemeni president Saleh is hospitalized in th same country. Mubarak is under arrest in Egypt.
Where do Gaddafi, al-Assad and the King of Bahrain (whom hopefully will soon be ex-rulers) plan to go?
That dictators go scot-free is the rule rather than the exception. Between January 1990 and May 2008, 67 heads of state were indicted for human rights violations, war crimes and/or large-scale corruption. 16 ultimately served prison sentences. One former head of state, Saddam Hussein, was executed after trial. However, the large majority were acquitted, or got off with a fine or house arrest in a luxurious mansion.
Despite these figures and the way they grate on our sense of justice, it can no longer be taken for granted that dictators will go unpunished after their fall. The reason is the establishment of the International Criminal Court (ICC) in 2002 – an incredible accomplishment. Yet the ICC faces a number of serious problems.
Firstly, to arrest the head of a state that did not sign the 1998 Rome Statute, the UN Security Council must refer the matter to the International Criminal Court. Whether this happens, depends fully on the political will of the Security Council’s members. In the cases of Sudanese president Omar al-Bashir and Colonel Gaddafi this political will materialized. But whether this will also happen in the cases of the heads of state of Syria, Yemen and Bahrain, is very uncertain. The Security Council’s political inconsistency erodes the ICC’s credibility.
Second, can the international community really act on its responsibility to arrest war criminals and human rights violators? The criminal arrest warrants that the ICC has issued against Gaddafi have reduced the chances that he will live comfortably on his investments after he is deposed. Other warrants mean that son Saif can also forget about law studies at some foreign university. The problem is, however, that Gaddafi has not yet been deposed! Who is going to arrest him? NATO has ruled out the use of ground troops. So this requires a new resolution from the Security Council, which Russia and China would probably veto. Meanwhile, the fight continues and the numbers of victims in Libya rise by the day.
The third and most urgent problem is that criminal prosecution by the ICC can hinder attempts to broker a political or diplomatic solution in which safe passage into exile is offered in exchange for immediate resignation and the cessation of hostilities.
We have seen this happen in the case of the Lord’s Resistance Army in its peace talks with the Ugandan government, which IKV Pax Christi initiated. Joseph Kony refused to sign the peace agreements as long as the international arrest warrants were not withdrawn and he was not granted amnesty. As a result, the violent conflict continues up to today. In Sudan, too, negotiators have argued that the arrest warrants for Omar al-Bashir and others may obstruct their efforts to find a political answer.
In his statement on Libya, ICC prosecutor José Luis Moreno-Ocampo said: ‘When the time comes, implementing the arrest warrants will be the most effective way to protect civilians under attack in Libya and elsewhere. As in any other criminal case, the execution of the warrants will have a deterrent impact for other leaders who are thinking of using violence to gain or retain power.’
That is certainly what we hope. But there will only really be this deterrent impact if dictators run a greater risk of being arrested after indictment. Only when there is a very real chance that a head of state will spend years behind bars, will he think again before opening fire on his own people.
Why would Gaddafi resign and lay down his weapons when his only reward is a prison cell in The Hague? The dilemma is a nearly impossible choice between negotiations and adjudication. In such dilemmas we must choose for the lesser of two evils. That means that whatever will end the violence fastest, must take precedence over bringing a small group of individuals to court.
The first focus should be on the victims and their families. In criminal law, retributive justice focuses on the perpetrator and imposes a judicial punishment. But this should always be accompanied by restorative justice, in which the suffering and harm done to the victims is repaired as much as is possible. And by distributive justice, in which the community distributes means and modalities equally so that each one has an equal opportunity for self-development. Restorative and distributive justice, which serve the victims, are always possible, whether or not the perpetrators are punished. They must therefore always be pursued, for the victims’ sake.
The voices of the victims of violence should resound forcefully in the search for justice. It is good that the international community is making it clear that impunity is unacceptable. But the international community’s call to punish the perpetrators may never come at the expense of the civilians who are the victims of the whims of these dictators.