Thinking About the International Criminal Court

The International Criminal Court (ICC) in the Hague delivered a sentence of 14 years yesterday against a Congolese warlord, Thomas Lubanga. This is not much cause for celebration, for it is the first sentence ever handed down by the ICC--after ten years of work, at a cost of about $100 million a year. The court suffers from a variety of ailments that go beyond being new; as an example, judges are chosen by its member countries through a political process that does not bring the best qualified jurists to the top.

But there is another question worth noting. The existence of the ICC means that deals to get a dictator to leave power peacefully are next to impossible today. When I served in the Reagan administration, we were able to negotiate with the president of Haiti, Jean-Claude "Baby Doc" Duvalier, and get him to leave power peacefully--because he knew that what awaited him was a peaceful exile. We almost succeeded in getting Panama’s dictator, Manuel Noriega, to leave power the same way. Negotiations over the departure of someone like Syria’s dictator, Bashar al-Assad, are made far more difficult when the negotiators have little to offer him except future prosecutions and prison. Why not fight it out, he may well have concluded.

It is fair to ask whether people like Duvalier, Assad, or many other dictators merit exile--where they may enjoy their ill-gotten gains. Of course they don’t; they deserve to pay for their crimes. The problem is that making them pay may mean more violence, more deaths, and extended civil wars. Peace and justice will go together in some cases, but be at odds in others. Nations face a similar problem after a dictatorship has been overthrown, and there are calls to try all those complicit in the former regime’s crimes. In several cases, such as that of South Africa, a democratically elected government chose a "truth and reconciliation" process over stiff justice. It would have been wrong for foreigners, through an institution like the ICC or through diplomatic pressures, to tell South Africans that choice was wrong.

Similarly, there may be times when allowing a dictator to leave the country and escape prosecution is the best choice. Here the problem is who can make that choice, because it must be made during the revolt against the existing regime (rather than by a democratic government, later) and at that point there is rarely anyone who can legitimately claim to speak for the people of the country. I have no solutions to offer to this conundrum, just a reminder that there is sometimes a price to pay for the ICC and the insistence that, always and everywhere, prosecutions will be the best way forward.