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Justice and Gaddafi’s Fight to the Death

April 7, 2011

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.

2 Comments leave one →
  1. Adruja Wijayamala permalink
    May 21, 2011 7:35 am

    why hasn’t a deal been reached, then? waste of firepower and resources …

  2. July 27, 2011 4:38 pm

    I post here a response to your piece that I sent by email, Christine, so that readers of your blog can share their own views. I had seen your piece – congratulations on getting it published – and I thought it was interesting and well-written. As it feeds arguments on the ‘realist’ rather than the ‘liberal internationalist’ side of the ledger I can see why the WSJ would publish it (it’s been pecking away at those arguments for years), although I frankly don’t go along with your line of argument, for two main reasons.

    My sense (going back to the situation at the time of publication) was that neither Gbagbo nor Gaddafi were clinging to power for fear of the Court. Gbagbo’s boldness was fed rather by his past success at political manipulation, coupled with genuine (albeit limited) popular support as well as a fear of losing the opportunities for personal enrichment that the presidency afforded him and his entourage. For Gaddafi, all the hand-wringing about an exit strategy overlooked the fact that Libya ’s leader simply had no reason to surrender power (at that time) without a credible threat of a foreign ground intervention. He had the weapons, political support and territorial control he needed to survive (again, viewing it from the perspective of that time). Apparently – and characteristically – neither leader could imagine a future for their country without them. The ICC, while not invisible, hardly seemed to be what drove them.

    As for “freedom years,” you’ll have been through the challenges of that concept with others, no doubt. It reminds me a bit of torture warrants – a proposal to formalize something that governments have renounced through treaty commitments, and that would be very hard to get the necessary buy-in for. Anyhow, would any leader would accept an amnesty that self-destructs after a set number of years unless their backs were to the wall? If that’s the case, why offer one? Taylor used his “freedom years” parked in his Nigerian villa to foment strife back in his homeland (and by the way, was only surrendered after the Liberian government officially so requested, not because Nigeria unilaterally reneged on its side of the bargain). Moreover, we have to recognize that if conflicts have sometimes been cut short by amnesty, it is equally true that murderous leaders have been emboldened by them (thinking say of Sankoh). The pro-amnesty crowd likes to simplify the picture in this regard, just as much as the ‘anti-impunity’ gang does.

    That said, I thought your piece was a good high-profile contribution to an important debate. I’m for using the Court less in ongoing, unresolved situations like Libya (where it serves as a sort of symbolic cudgel without much likelihood of being able to fulfil its purpose, aggravating its reception in Africa and to the detriment of its reputation internationally), and perhaps more in situations like post-conflict Ivory Coast, where it will support the efforts of a government to build a basis for the rule of law. Building the Court’s legitimacy and authority over time is what would allow it to push the boundaries of the peace/justice debate to which your piece alludes. In the meantime, I suspect we’re just going to have to leave the diplomats and policy-makers to work through the contradictions case-by-case, without the luxury of generic mechanisms for resolving the tensions everywhere, all the time.

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