David Nersessian is a visiting professor at Boston University’s School of Law. He is an expert on international criminal law and the author of “Genocide and Political Groups.” He offers the following opinion piece of the prospects of prosecuting ex-dictators.
“Mubarak’s detention makes me wonder what the ‘knock on’ effect will be in other countries facing similar issues. Ivory Coast’s former president just gave up the ghost and has been detained by the new regime, and it’s not at all uncommon for prior regime leaders to face legal charges after giving up power. Immunity grants are less available as a tool (as in situations like Chile and Sierra Leone) where either the domestic legislature retroactively voided the immunity and/or there were legal determinations in other settings that immunity grants, like statutes of limitation, don’t apply to really serious international crimes.
“Gadhafi certainly is thinking about this kind of thing and seems to have decided, at least for now, that his best option is to fight on. Obviously, the specter of legal charges makes a political resolution (like agreeing to go into exile) much harder. The UN Security Council resolution authorizing ICC investigation of Libya required Libya to cooperate with the ICC but only said that other states ‘should’ cooperate, leaving an opening for a state to agree to shelter him while not violating a SC resolution. The SC could have made such cooperation mandatory but didn’t, ostensibly to allow some opening for him to voluntarily leave power. That said, any country that takes him will certainly draw a lot of heat, and even open defiers of the SC and ICC (e.g., al Bashir in Sudan) might not want him there because it will only increase the pressure of their own situations.
“In terms of genuine threats of prosecution, it’s much harder to ignore serious crimes committed while someone was in the process of leaving office (or getting kicked out) than crimes committed while in office (which can stretch back 30+ years in some cases). The challenge is — putting aside courts of limited jurisdiction like the ICC which have a much more limited temporal mandate — that once someone is being investigated and prosecuted for anything, it’s much more likely that the prosecutor will go for the brass ring and seek to bring charges for whatever is available, including past conduct. So, you might see current crimes-on-the-way out operating as a trigger for a much wider inquiry into historic governmental criminality. The current crimes also make it harder to sort this out via a truth and reconciliation commission as in South Africa.”
Contact David Nersessian, 617-358-1959, firstname.lastname@example.org