When the International Criminal Court (ICC) was set up ten years ago, it was meant to make the world a safer place. The Court and the various UN war crimes tribunals were supposed to pursue and punish war-criminal dictators as a warning to all the others.
The idea may have been a noble one but, as Syria now demonstrates, it has proved hideously flawed. Far from deterring brutal dictators, the prospect of ending up like Slobodan Milosevic or Charles Taylor has persuaded some of the worst dictators that they only have one choice: to fight it out to the end.
The Assads are only the latest family to prove this point. Before them it was the Gaddafis. As the Libyan regime began to crumble, there were numerous attempts to get members of the family out. Yet even neighbouring Algeria was unwilling to give Gaddafi himself exile, and in the days and weeks before his fall, planes with family members on board were turned away from several countries. We will never know how many people needlessly died in those weeks as the Gaddafis looked for exits from the burning building. It was certainly a building which they had set alight, but it was the international community who had locked the doors. We should find better ways to deal with infernos.
Things were not always like this. No story from a British expat in Saudi is complete without an account of bumping into Idi Amin in the frozen food section of a supermarket in Jeddah. Like everything else in his life, the manner of Amin’s retirement was horrible. But if you hold your nostrils and think it through, was it really the worst option? True, there was never a day in court for the families of the many people he murdered. But the number of families who had members killed might have been far greater had Amin been caged in. Once the Ugandan despot realised the game was up, he searched for — and found — places which would have him: Libya and then, until his death, Saudi.
Despite, or perhaps because of, its myriad flaws, Saudi Arabia has done sterling service in this regard over the years. And it should not be sniffed at. Of all the countries which have seen uprisings recently, Tunisia was the least bloody, not least because, within a month of the trouble starting, President Ben Ali sought — and was given — sanctuary in Saudi.
But it has become the case that in all but a few cases the political cost of doing this is just too high today. In a time when the West venerates anything claiming to be international justice, countries hosting wanted statesman risk being pursued themselves until the end of the individual’s life.
Of course it is justice, but the new international justice puts legal purity ahead of the saving of human lives. It also too often provides a smokescreen for the failure of traditional policy. Last week the United Nations — which has proved so incapable of stopping the bloodshed in Syria — released a report concluding that the regime of Bashar al-Assad had committed war crimes. What does the UN expect to be the result of such a conclusion? That Bashar al-Assad will realise he has been bad, and cease and desist? Or will it only serve to enforce his realisation that, like Macbeth, he is ‘in blood/ Stepp’d in so far that, should I wade no more,/ Returning were as tedious as go o’er.’ What incentive does official condemnation give for Assad to go? Assuming he would at least want to try to save his wife and family, this is exactly the moment at which the UN could do something practical. Not by grand-standing, but by persuading Assad’s remaining wretched allies finally to do their bit, and spirit him away.
And why shouldn’t Russia — which has done so much to help Assad prolong the killing in Syria — now be encouraged to take him? Why shouldn’t the UN seek to persuade Iran — which has run Syria as a protectorate over recent years — to give the Assads a villa in downtown Tehran? It may not be the Assads’ preferred permanent bolthole. The fragrant and bloody Asma, wife of Bashar, may resent waving goodbye to the shopping arcades of Paris and London. She may even find herself pining for the fields of Acton. But even a bungalow outside Vladivostok looks appealing if the alternative is swinging from a Damascene lamppost.
That is their concern. The concern of this country and the international community should be simply to minimise the loss of human life. If that means getting the leadership out, then we should be bold enough to do so, even if it means letting a mass murderer go unpunished.
After all, this is not a problem we are only going to encounter once. Around the world there are places which already have — or could yet have — this exact scenario playing out. Instead of all this talk of isolating North Korea still further (as if any country could be more isolated), why not do everything that can be done to encourage Kim Jong-Un to find his way out? He may be as bad as his father, but like Assad Jnr he did not choose the dictator’s job he inherited. All the more reason why it should be possible to encourage him to flee and not take the country (further) down with him.
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When the ICC was barely a week old, Samantha Power (author of A Problem from Hell and now a senior adviser to President Obama) predicted that during the next decade ‘genocide, crimes against humanity and war crimes will abound’. She alleged that the advantage of the Court lay in the fact that it would be ‘permanent and not ad hoc’ and therefore able to ‘play an indispensable role punishing and incapacitating war criminals and thus deterring future atrocities’.
The car-crash of presumptuous claims made about the ICC are all there. This last decade has mercifully not seen ‘abounding’ genocides. But it has seen a proliferation of ‘genocide experts’ — academics and public figures — who talk in this way. There are even university degrees in ‘genocide studies’ for people who hope to enter the profession. Such people need jobs to graduate to, and there is now a growing professional class for whom the year is always 1939, the enemy is always Nazi and the answer is always Nuremberg. Distrustful of armies, but endlessly reliant on lawyers, our national and international institutions now swarm with people who actively need accusations of genocide and crimes against humanity to stay in work. Surrounded as they tend to be by unfettered praise, the actual effectiveness of these bodies goes almost unquestioned. Even to resist the claims to supranational authority of the ICC — as the US government has done — is to leave yourself open to accusations that you must be pro-genocide.
In fact, when the balance-sheet of this era is looked at, the effectiveness of all this ‘international justice’ may come out very badly indeed. For even if we did live in an era of abundant genocide, what evidence is there that the court has ‘deterred’ any of it?
The major cases which a variety of international courts have tried in the last decade have produced decidedly mixed results. The trial of Slobodan Milosevic dragged out so long that it slightly outlived him. The case of Charles Taylor is perhaps even more unsatisfactory. Though the former Liberian leader’s conviction for war crimes at the Special Court for Sierra Leone in April was widely welcomed (and so it should have been by those who suffered the monstrous actions of that man), the lesson it sent to his fellow mass-murderers was terrible.
Before his arrest, Taylor was persuaded to stand down as a head of state and live in nearby Nigeria. His presence there was yet further torture for the survivors and victims of his bloody career. But his pursuit in retirement has sent out a message which could hardly be more counter-productive. Just as the regime in North Korea, among others, believes that the lesson from Gaddafi is that if you give up your WMD you leave yourself open to attack, so the Taylor case has demonstrated that if you obey the international voices calling for you to step down relatively peacefully, you will not be left to see out your days in peace. You will in fact be pursued by various international bodies until brought to trial and then imprisoned for life. Is that an incentive to step down, or a reason to gamble everything?
Political leaders seem to insist that this new calculus of morality trumps all. Only last month William Hague declared that the British government ‘will redouble our calls on all states to co-operate with the International Criminal Court and apprehend those it has indicted. There should be no hiding place or sanctuary for people indicted for crimes against humanity, war crimes or genocide.’ I suspect all of this has more to do with giving off the correct moral aroma for our times than it does in thinking through the unpleasant realities of our imperfect world.
Perhaps I should make a confession. Years ago, I used to believe passionately in international law. Like so many others I loved to talk the talk and wondered how best to walk the walk. But the more I travelled, the more I sensed that, good as the intentions of many advocates of the ICC are, they are largely based not on politics but on narcissism. It appeals to people who believe the world can be perfected. It appeals to people who think that the world doesn’t need armies, just good lawyers. And it appeals to people who want to assume the mantle of genuine moral heroes of the past at a fraction of the physical and mental expenditure. For my part, the more appalling places I went to, the more the thought crystallised in my head — not ‘How can we bring these leaders to justice?’ but, simply, ‘How can we get these leaders off their people’s backs?’
It is not an easy question. But in making the best the enemy of the good, we may not only have failed to get out the bad, but persuaded them to dig themselves in. Like so many noble attempts at international justice, those produced by this generation may end up doing the exact opposite of what was intended. Rather than persuading dictators not to commit atrocities, we have instituted a system which in the name of justice encourages those who have started to make sure they never stop.