Each time a conflicted and fragile society resolves to confront a murderous, tyrannical or dictatorial ruler, a similar question inevitably surfaces: should the ruler and his cabal be allowed, or even encouraged, to go into exile?
The logic in support of exile is simple and seemingly intuitive (although, it should be noted, far more complex in practice): Ushering violent leaders into exile removes them from power and thus revokes their ability to continue committing massacres and human rights abuses. When negotiating a fragile peace, the view holds, it may be better to use exile as a carrot – the leader is offered early retirement and protection from prosecution in exchange for allowing democratic and peaceful forces to take power. Leaders are assumed to be un-reformable and, without an offer of amnesty or exile, are presumed not to have any incentive to stop committing atrocities in an effort to maintain power. By trading exile for peace, greater bloodshed and the loss of life is thus prevented.
For a host of reasons, this position is problematic. It relies on assumptions about the logic of violent leaders, it generally neglects differences across contexts, and – as many will undoubtedly point out – it may be morally unacceptable. In many ways the simple logic of the exile argument resembles more an attempt at propping mountains up on matchsticks than a coherent, verifiable and objective hypothesis. But there is another problem with the exile argument that is rarely addressed: the assumption that those who replace exiled leaders will necessarily be peaceful.
During and prior to the Cold War, offering exile and offering amnesty for past crimes was the norm as states negotiated their way away from violent political conflict towards consolidated peace. Some of history’s most brutal leaders, like Uganda’s Idi Amin and Haiti’s Jean-Claude Duvalier (Baby Doc), went into exile while the leaders of Argentina’s military juntas were granted amnesties for their role in the torture and disappearance of thousands of civilians during the Dirty War.
This approach is often said to reflect the realist’s understanding of international society. The only “realistic” way to end wars was to negotiate power-sharing agreements, manage conflict between warring parties and to offer exile or amnesty for particularly brutal leaders. Another possibility was internal exile: removal from power in combination with the granting of an amnesty to protect leaders from prosecution. If the leaders had committed crimes against civilians, so be it. Justice was a secondary goal, and only really pursued if it was deemed to help the cessation of direct political violence. Immunity from prosecution was exchanged for stability and, often, an aspiration to develop liberal, democratic institutions and traditions. This trade-off was seen and widely accepted as a necessary evil, a least worst option, driven by the fact that, as Mark Freeman argues, people may be repulsed by impunity but their “repulsion for war and tyranny is greater.” While there are important arguments about the extent to which this has occurred, the post-Cold War trend has shifted away from such logic.
The remarkable, some say revolutionary, developments in international criminal justice have worked to decrease the possibility of an amnesty/exile-for-peace deal being brokered. This is not to say amnesty or exile deals don’t occur – indeed, some studies suggest it occurs as much now as it did during the Cold War – but it is an increasingly common expectation that leaders who commit atrocities and human rights violations are held accountable. The growing vocal advocacy of international human rights organizations, the increasing number of states joining the International Criminal Court, and the impressive spread of demands for justice and accountability all act to restrict the options that despots and dictators have in the hopes that only one option remains: facing a panel of judges. Absent the establishment of a modern-day Elba for the world’s most vicious leaders, this process will only continue and gather steam.
Nevertheless, the idealized and largely imagined world in which all perpetrators are immediately brought to justice is little more than a fantasy in contrast to current realities. The desire to see Libya’s Gaddafi, Syria’s Assad and Yemen’s Saleh in court may be both understandable and admirable goals but these leaders won’t be wished into the chambers of the International Criminal Court. Indeed, even before it became clear that the mission in Libya required regime change, states – including those who had vehemently supported the referral of Libya to the ICC – sought possible safe havens for Gaddafi. Uganda, one of the ICC’s earliest and most important supporters, declared that it would welcome Gaddafi if he wanted to retire in the country. A Ugandan spokesperson said: “We have soft spots for asylum-seekers.”
Apart from the criticism that exile is morally and legally inappropriate, there is another important reason to question the logic of allowing leaders like Gaddafi to retire, confident that prosecution will never reach them. Taking the example of Gaddafi, the assumption is that putting the Libyan leader in exile would be fundamentally good and unproblematic for Libya. This is, however, problematic when we do not know the character, exactly, of those who would “fill the void” created by a departed Gaddafi and his political entourage.
Keeping with the example of Libya, the rebels – apparently now fully supported by NATO – would presumably lead a post-Gaddafi government. Yet these same rebels have been accused of potentially committing war crimes by a UN investigation. Further, virtually every senior member of the rebel’s National Transitional Council (NTC) government has previously served and been loyal to Gaddafi. What guarantees, it must be asked, will Libyans have that the atrocities committed by the Gaddafi regime will not be continued, even if less frequently, by the rebels?
This is not to argue that Gaddafi should stay in Libya. Nor is it to compare the depth and scope of atrocities committed by Gaddafi to those of the rebels. But the assumption that things necessarily get better when a tyrant is removed is very often just that: an assumption.
Of course, this problem should also weigh on those who vehemently, and sometimes blindly, support international criminal justice and the removal of violent leaders. Marginalizing such leaders is complicated and neither easy, nor consequence-free. Indeed, it is somewhat ironic that both supporters of exile and champions of justice both advocate Gaddafi’s removal; in this context, they only disagree about where he should be removed to. In any case, there is a danger for proponents to assume that those who fill the void too are good or will be peaceful. In a recent paper, Leslie Vinjamuri (who is widely recognized as a realist scholar of transitional justice and a supporter of delaying criminal justice – see here), astutely notes the following:
“Proponents have argued that tribunals facilitate peace and deter atrocities by marginalizing their targets. This logic…is that indictments trigger a loss of power by delegitimizing their targets, thereby weakening their base of support. In the absence of an international enforcement capacity to make arrests, however, the mechanism through which targets lose power remains unexplained. Absent the voluntary capitulation of targeted individuals, the logic of marginalization depends either on coercion to remove perpetrators or on a stable and effective electoral process through which changes in domestic support can be effectively registered…The logic of marginalization, though, wrongly assumes that removal produces peace.”
There is a need to be more realistic – although not realist – about the dangers of removing and marginalizing leaders. Exile and amnesty is often championed without thinking long-term and considering the nature and character of those who will succeed the deposed leader. Getting rid of Gaddafi, whether by exile or by sending him to The Hague, may very well be the only, and indeed the best, option on the table. But this decision must be tied to longer-term peacebuilding and statebuilding processes which guarantee the citizens of Libya what they so courageously stood up for in the first place: peace, democracy, justice, human rights and an end to authoritarian rule.
The quotation from Leslie Vinjamuri makes the crucial point that “In the absence of an international enforcement capacity to make arrests, however, the mechanism through which targets lose power remains unexplained.”
This overlooks the fact that UNSCR 1970 §5 “urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor,” which seems to allow NATO or individual countries to provide that enforcement capacity (preferably by assisting the Libyan NTC).
Let me suggest a model by which an arrest of Gaddafi, et al., could be carried out once the ICC issues arrest warrants.
France has experience in the Ivory Coast carrying out such a military operation to assist the efforts of the legitimate government of Alassane Ouattara to arrest Laurent Gbagbo. Interestingly, the same helicopter task force based on the BPC Tonnerre that participated in the Ivory Coast operation is now off the coast of Libya. Additional British (HMS Ocean) and American (USS Bataan) resources of the same type are also standing by off Libya.
Intensive intelligence gathering could locate the hideouts of one or more of those named in the warrants, and a large raid against Gaddafi’s extensive protection detail (not the kind of light operation aimed at Osama Bin Ladin’s unprotected compound) would have a reasonable chance of capturing Gaddafi (or the entire the Tripoli Three) alive and delivering them to NTC. One might see the extensive bombing of Gaddafi’s retreats as not just psychological warfare, but preliminary steps for such an operation.
This is an outstanding piece of writing that helps to repesent a deeper appreciation of what is now at stake.
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