Justice and Gaddafi’s Fight to the Death
This is a longer version of a piece that was first published in the Wall Street Journal on April 6th, 2011.
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The violence in the Ivory Coast that has left more than 1,300 dead since last November’s presidential election may soon be coming to an end. Incumbent President Laurent Gbagbo, who refused to cede power after losing in the polls to Alassane Ouattara, is reportedly negotiating the terms of his surrender after a week-long offensive by pro-Ouattara forces. What is puzzling about this conflict is why Gbagbo did not leave sooner, especially after African Union leaders had offered him immunity several times as long as he agreed to go into exile in South Africa.
Yet what looks at first glance like an irrational response was probably a carefully considered decision. Indeed, reflecting on Gbagbo’s decision to fight to the end could help us better understand the current military impasse in Libya and the mindset of Colonel Muammar Gaddafi.
President Gbagbo has always been judged a savvy, if wily, leader with acute political senses. With eighty per cent of Ivorian territory taken by pro-Ouattara forces in just five days and mass defections from the army and police, he is certain to have known that his regime was on its last legs. Yet patriotic though he might be, Gbagbo’s decision not to leave for South Africa probably had more to do with the fact that the option of exile currently has a credibility problem amongst Africa’s leaders—especially those who have committed atrocities against their own citizens.
In the past, Africa’s deposed heads of state could always take up a comfortable exile in a friendly country. With a handshake deal and a quick departure, despotic leaders could be secure in the knowledge that they had immunity from prosecution.
But once the Rome Statute came into effect in 2002, those rulers who had committed war crimes or gross human rights violations found that their exile options had dramatically shrunk. Consequently, for both Gbagbo and Gaddafi, the question of how secure they would be from prosecution by the International Criminal Court must have been a critical part of the exile discussion.
In cases like Côte d’Ivoire and Libya, where war crimes have already been committed but violence is certain to continue, exiling a leader may be the least worst option. The problem is that exile has been somewhat discredited by former Nigerian President Obasanjo’s controversial handling of Charles Taylor’s exile.
After Nigeria offered the former Liberian president de facto protection from prosecution in 2003 to help bring a speedy end to the Liberian civil war, Obasanjo later went back on his word and repatriated a surprised Charles Taylor back to Liberia in 2006. Taylor was then put into the custody of the Special Court of Sierra Leone where he has been on trial for the past three and a half years.
Taylor’s experience set an important precedent. It suggested that promises of immunity from prosecution would be subjected to extreme pressure. Further, Western powers in particular could selectively bring their influence to bear on those countries hosting individuals on the ICC’s most-wanted list. The end result is that guarantees of protection from international prosecution now look unreliable.
Consequently, Gbagbo and Gaddafi are probably wondering: if Nigeria was unable to keep its promise to Charles Taylor, how can I be sure that they will keep their promise to me?
Without the option of exile, as soon as the first war crime is committed, a ruler has no exit options. Once this threshold is crossed, committing further war crimes will still lead to the same long and humiliating trial which will almost certainly be followed by life in jail. Gbagbo and Gaddafi both know this. As they see it, the thousands of people who will die as a consequence of their decision to fight to the end is regrettable but necessary.
Part of the rationale in establishing the ICC was to deter those in power from committing atrocities. The threat of prosecution was expected to make rulers think twice before massacring innocent civilians. But as Gbagbo, Gaddafi, and other leaders have shown, ICC prosecution has not always been enough of a threat when the survival of a regime is at stake.
Ultimately, eliminating the exile option for those who commit war crimes is a progressive step forward. In the long run, standards of behaviour for all leaders will align with the standards set by the ICC. But this evolution will take time.
In the meantime, as long as heads of state keep killing their civilian populations, an exit option is still needed. One possibility is to offer exile in conjunction with a fixed period of ironclad immunity: freedom years.
Depending on the severity of the atrocities already committed and the health of the ruler, a head of state could negotiate a number of freedom years before facing ICC prosecution. The number of freedom years would need to strike a balance between satisfying a population’s thirst for justice and providing enough incentive to entice a violent leader into thinking that a few years of freedom is worth the certainty of being humilitated and prosecuted in the future. Once the freedom years are up, the host state would be responsible for handing over the individual to the ICC. Over time, as the norms of the ICC gradually take root, the period of negotiated immunity will decline, shrinking to months and days.
Based on what has been reported in the media about the sorts of war crimes that Gaddafi and Gbagbo may have committed, the international community might offer them two to five freedom years. If endorsed and guaranteed by the ICC, the UN Security Council, or other powerful states, this form of temporary exile could provide a credible exit option for leaders like Gbago and Gaddafi who already have blood on their hands. Such an alternative has its limitations, but it may be the only way left to prevent further mass casualties.
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I’m also interviewed about this issue on BBC World Service’s World Update on April 8, 2011. Most of the interview starts at about minute 28. It will be available online until April 15.
Here is a related op-ed that I wrote on power-sharing in Libya on March 30th, 2011.