Pre-empting the war criminals

“Too little too late”. It’s as true of Bashar al-Assad as it was of Muammar Gadhafi, as it was of Saddam Hussein and Pol Pot. The problem always has been not lack of early warning but lack of early action.

We have known, literally for decades, that Syrian President Assad ran an intolerably repressive and amoral regime. So too Gadhafi who by sheer dint of determination and perseverance climbed out of the pit he had dug for himself when exploding the Pan Am flight over Scotland and a French airliner over Africa, and the partly successful construction of a nuclear weapon. By the clever manipulation of the practice of realpolitik he managed to install himself in the good books of the West.

The US and the UK armed President Saddam in Iraq’s war against Iran even though Amnesty International had already reported a decade before that he tortured the children of his domestic enemies and rivals. But the two Western powers wanted Saddam on their side to fight Iran. They turned a blind eye to Saddam’s war crimes until Saddam’s troops invaded Kuwait. Then the only weapon the West felt it had was military invasion. Tens of thousands of innocents died.

The former secretary-general of Amnesty, Pierre Sane, once wrote, “We fear now that our pleas for action on other countries are similarly being downplayed. When some human rights catastrophe explodes, will we again be expected to see only military intervention as the option? If government decisions to intervene are motivated by the quest for justice, why do they allow situations to deteriorate to such unspeakable injustice? Why should we be forced to choose between two types of failure- inaction or military intervention- when the successful course of action is known- prevention?” Non-violent prevention work may be less newsworthy and more difficult to justify to the public than military intervention in a time of crisis. It requires the sustained investment of significant resources without the prod of emotive images of hardship, violence and suffering. But it can work.

Fortunately, we are making some progress- namely the creation of the International Criminal Court (ICC) and, before that, the UN courts for ex-Yugoslavia, Rwanda and Sierra Leone. This is pre-emption by messaging into the future. If you don’t want to end up in the dock then make sure the dictatorship you run or the conflict you preside over is not torturing and murdering civilians and breaking the world’s accepted laws on human rights.

So far, these courts have had arraigned before them such diverse figures as Slobodan Milosevic of Serbia, the onetime president of ex-Yugoslavia, the leader and chief general of the Serbian occupiers of Bosnia, two Croatian generals from the same war and a number of African warlords.

Admittedly, the penny never dropped with Gadhafi. Nor has it dropped with Abdel Fattah Al-Sisi of Egypt, Bashar Al-Assad of Syria, the ruling generals of Myanmar, the war lords of Somalia, northern Nigeria and Mali.

But once the ICC has a significant number of scalps under its belt it is reasonable to suppose its example in time will have a deterrent effect. Indeed, we don’t know who it has deterred already. As with common criminals some are deterred, some are not.

Professor Anne-Marie Slaughter of Princeton University has taken the argument about the consistent and more far-reaching application of international law a step further. “A potentially powerful alternative at the UN’s disposal is to draw on the existing body of international criminal law to secure the indictment, through an independent judicial process, of particular individuals who threaten global peace and security and then issue a warrant for their arrest”, she wrote in the International Herald Tribune in November 2003. She advocates pre-empting the warlords at the beginnings of a conflict rather than waiting to arrest them after the conflict ends.

She argues, to take one example, that instead of debating a decade of sanctions and ultimately the deployment of military force in the lead up to the Second Gulf War, the UN Security Council could have authorized an international prosecutor to investigate Saddam’s war crimes.

Once an indictment is made against the likes of Saddam, an international or national force should be authorized by the Security Council to arrest him (always a him). If he resists, the arresting authorities would be authorized to use force. It might take some guile and the use of special forces to snatch him but unless the dictator chooses to remain holed up in a bunker for months on end it is eminently possible and can be done using minimal force. (The UN Security Council has the right to authorise the special forces of the US, the UK or Russia or some other country to do this.)

This is far better than what happened in Iraq. Killing innocents to save innocents is an unacceptable choice.

The killing of Osama bin Laden on the orders of President Barack Obama is another type of case. There was enough evidence to arrest him when he was resident in Sudan. Indeed, the Sudanese authorities offered to detain him and hand him over to the US authorities. The Clinton White House decided not to request this. Sandy Berger, President Bill Clinton’s National Security Advisor, later told the Washington Post that there were doubts about winning a conviction in an American court, which seems a ridiculous thing to say. Apparently, the White House thought it would be more expedient if Sudan handed him over to the courts in his homeland, Saudi Arabia, where justice was faster, and the death penalty was certain. While the White House prevaricated bin Laden fled to the mountains of Afghanistan.

If there had been a UN Prosecutor able to take pre-emptive action it would have all been much simpler. The Security Council would have authorized Special Forces to act on behalf of the UN Prosecutor to act to arrest Bin Laden, and the deed could have been done, focussing on just one man but not civilians, nor even his cohort.

The position of an International Prosecutor should be put on the Security Council’s agenda this year while the repressive and dirty wars in Syria, Somalia, Nigeria, Mali and Myanmar remain in the news.