The role of human rights prosecutions in deterring regime transitions and the ousting of dictators.
There are no villains in the piece. Crime, like a disease, is not interesting: it is something to be done away with general consent, and that is all about it. It is what men do at their best, with good intentions, and what normal men and women find that, that they must be and will be doing in spite of their intentions, and this is what concerns us most.
Saint Joan by George Bernard Shaw, Preface (Tragedy, not Melodrama)
The prosecution of tyrannical and arguably criminal heads of state, as a morally unquestionable as it is, puts forks in the road where regime change is concerned. It is a perfectly understandable position, and probably shared by the immense majority of the population, to ask for the criminal to be held accountable for their actions while in power, and want them to face the full force of the law. However, this idealistic position can clash with the tough reality that dictators will be more reluctant to stand down if they know that it is possible that they can face prosecution once they step down.
Before we start examining the main question in this article, it would be appropriate to briefly touch on what is the International Crime Court (ICC), what can the Court do and the context that explains its formation. The ancestors of the ICC can be found on the United Nations War Crimes Commission, created in 1943 to investigate the crimes perpetrated by the 3rd Reich, during World War 2, by aiding domestic courts in their efforts to prosecute human rights violations committed under Nazi rule.
Nonetheless, before the creation of the ICC, international tribunals established by the UN, judged crimes against humanity in ad-hoc tribunals like the Nuremberg and Tokyo trials or the Yugoslavian and Rwandese ones. Yet, it wasn’t until 1998 that the ICC was created by an international treaty (Rome Statute), to this day only 124 states have ratified the treaty (countries situated mostly in Africa, Europe, Oceania, and America).
ICC ratification in the world
The Rome Statute granted the ICC jurisdiction over genocide, crimes against humanity, crimes of war and, awarded at a later date, of aggression.
The treaty extended the jurisdiction of the court to the countries which had ratified it; the United States argued this point and defended that the ICC should only act in cases referred by the Security Council (the same mechanism that had allowed the creation of the ad hoc tribunals), however most of the states at the conference did not agree on this point due to historic inaction and virtual immunity for the permanent members and the strategic vetoes in the Security Council, which made its role as gatekeeper of universal justice, as an unsuitable one; at the end of the day, the goal was to separate the squabbles of international politics from the deliverance of justice. Finally, the compromise resulted in a treaty that established the Court’s jurisdiction over state members (to prosecute crimes perpetrated by nationals of a member state, by a signatory national government or in the territory of a signatory nation) and accepted specific referrals by the UN’s Security Council (the US did not ratify the treaty, and still has not done so to this day). This last point, however problematic it was (due to the limited number of states that ratified the Treaty), gave the ICC a critical power to act independently from both national and international politics and, although this seems positive, it also gives the ICC an opportunity to disregard them or act without complete information regarding the consequences of its actions.
So, although the ICC was not created until 1998 and it did not issue its first indictment until 2005, there have been plenty of human rights cases tried against ex-dictators (take the members of the communist apparatus in Romania, or the trial of Charles Taylor as examples) in both domestic tribunals and ad hoc international ones.
In May of 1999, Slobodan Milošević was indicted by the UN’s International Criminal Tribunal for the Former Yugoslavia and charged with: genocide; complicity in genocide; deportation; murder; persecutions on political, racial and religious grounds; inhumane acts/forcible transfer; extermination; imprisonment; torture; wilful killing; unlawful confinement; wilfully causing great suffering; unlawful deportation or transfer; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; cruel treatment; plunder of public or private property; attacks on civilians; destruction or wilful damage done to historic monuments and institutions dedicated to education or religion; unlawful attacks on civilian objects. Thus, Milošević became the first sitting head of state to be charged with war crimes by an international tribunal.
What do dictators in trouble usually do?
When studying their odds of finding legal immunity out of their states or just plainly surviving if they leave power, it may be the case that dictators may opt to retain power at any cost, even if it means using disproportionate amounts of violence against their own people.
In some other cases, democratization processes may be jeopardized if the military or other key bodies inherited from the deposed regime, do not obtain guarantees assuring that they will not be judged for past human rights violations. Of course, this is a double-edged sword; the complete amnesty for past crimes may create a new system where the circle of violence continues, institutionalised under a new regime, as well as the perpetuation of several other blights like, lack of accountability and transparency, limited democratic options and participation, systemic corruption, etc.
Of course, others argue that human rights prosecutions after political transitions can act as a cautionary tale for other heads of state when encountering critical challenges to their positions, especially for those countries in the region where the prosecuted crimes took place.
In national contexts, human rights prosecutions of previous heads of state and key officials must be conducted with perfect timing, when the old powerhouses have been marginalized from the state apparatus and the new regime has enough solidity. However, in an international context, past prosecutions in other countries, especially if they are nearby, may act, less as a deterrent for human rights violations, and more as an extra incentive to tighten their grip on power by any means necessary. So, human rights trials are the 20th and 21st tools for moral vindication in front of the atrocities humans commit against their fellow humans, but they are not without cost or consequence.
This is not to say that the guilty should not have their day in court, after all, no one likes to see the dictator die in bed or languish luxuriously in exile; but we should be aware of the consequences said justice, we should demand cohesive strategies when negotiating the leave of dictators, that unify critical international bodies and disseminate information to the best of their ability.
In addition if we think that an international and independent Court is the way to go for the prosecution of human rights, then we should exercise all the pressure possible to get the non-signatory members of the Rome Statute to ratify it; so that the cases prosecuted by the court are free of racial bias that some attribute to the ICC today (the vast majority of the tried cases are of African individuals), and accomplishes a cohesive model to try crimes against humanity that lends resulting verdicts suitable legitimacy. By Paula R Escribà