Warsaw
WHILE U.N. delegates were meeting in New York recently to finalize details of the proposed International Criminal Court, which they claim will forever end impunity for war criminals, the news leaked that the Clinton administration was considering a deal to give indicted war criminal Slobodan Milosevic safety in exile in exchange for his peacefully relinquishing power. It was a fitting irony.
Just last year, the United States had flatly rejected an exile-for-democracy deal for Milosevic urged by Serb opposition leaders. Figures such as Milan Panic had complained that Milosevic’s indictment left him “a cornered animal,” removing any incentive for him to step down. But U.S. defense secretary William Cohen declared cavalierly: “He is an indicted war criminal. If there is anywhere where he seeks sanctuary, perhaps I would recommend The Hague.” Now the administration is singing a different tune.
The sudden turnaround on Milosevic exposes a little-discussed deficiency in the march toward “global justice.” In practice, the International Criminal Court will end the peaceful transitions to democracy that marked the last two decades.
This democratic revolution was celebrated at the “Community of Democracies” summit here on June 25-26. The dirty little secret, however, is that most of those peaceful transitions to democracy involved some sort of amnesty, power-sharing, or safety-in-exile for the dictator who handed power to the democrats.
A look at the roster of the Warsaw summit tells the story. Almost none of the democracies that emerged from the collapse of the Soviet Union have prosecuted their former leaders. Neither have Argentina, Chile, Nicaragua, the Philippines. In South Africa, Nelson Mandela shared power for years with the last apartheid leader, president F. W. de Klerk.
Taiwan was not welcome at the Warsaw summit, but it, too, has just conducted a peaceful transfer of power, the first from a Chinese ruling party to its democratic opposition in 4,000 years, and it has done so without prosecuting officials of Chiang Kaishek’s regime for their abuses during decades of martial law. Spain may have sought the extradition of General Pinochet, but it never prosecuted its own Franco-era leaders for their abuses against the Spanish people. All of these countries chose some form of impunity for their former oppressors, and all are now stable members of the community of democracies. There is a pattern here.
At the World Forum on Democracy, a conference of non-governmental organizations held here in parallel with the summit, former Solidarity leader Adam Michnik challenged participants to consider what signal the detention in London of General Pinochet sent to a tyrant like Fidel Castro. The lesson, Michnik said, was that so long as Castro stays on the path of dictatorship, kings, presidents, and prime ministers will flock to Havana to shake his hand; but as soon as he embarks on the path of democracy, those same kings, presidents, and prime ministers will have him arrested. What is his incentive to relinquish power? There are, Michnik told a stunned audience, two paths from dictatorship: the path of Pinochet and the path of Ceaucescu — and, he declared, “I choose Pinochet.”
Hearing such words from a man like Michnik, who suffered years in prison at the hands of Poland’s Communist dictators, was disquieting for the Western human rights activists in the audience who have been leading the charge for an International Criminal Court. But the fact remains: The ability to give dictators a face-saving way out is an essential component of democratic change. Most societies, offered the choice between looking backward for revenge and looking forward to democratic reconstruction, have chosen the latter.
This does not necessarily mean ignoring the past. The Central and East European democracies have pursued varying levels of “lustration,” exposing those who collaborated with the secret police and barring them from public office. South Africa empaneled a Truth and Reconciliation Commission that gave amnesty in exchange for confessions of apartheidera crimes. And some nations may eventually decide their democracies are stable enough to handle prosecutions of former dictators; Poland waited 10 years before bringing charges against Wojciech Jaruzelski. The point is, every new democracy deals with its past in its own way.
But an International Criminal Court would take away that choice. An independent prosecutor, answerable to no state or institution, would have the power to indict a nation’s former leaders and overrule its national reconciliation process. Even without an International Criminal Court, the precedent of “universal jurisdiction” set by the Pinochet case gives any government, anywhere, any time, the authority to try dictators. Henceforth, if new democracies choose not to prosecute their former tyrants, rogue Spanish judges will do it for them.
For some, the idea of dictators’ living in comfortable exile is a nightmare. For others, it is a distant dream. Ask Wei Jingsheng, another World Forum delegate and a veteran of two decades in Chinese Communist prisons, whether he would prosecute Li Peng and Jiang Zemin for the massacres at Tiananmen Square and other crimes against humanity. He will tell you that he would gladly trade them safety in exile for a democratic China.
He may never have the chance. If the ICC comes into being, the option of exile could soon be eliminated. Without a credible guarantee that they will remain unmolested abroad, dictators may well decide that they are better off in their presidential palaces, with their security apparatus to protect them. If the people rise up, the obvious course will be to fire on the crowds rather than flee.
Indeed, with an indictment hanging over his head, Milosevic would already have little incentive to take an exile-for-democracy deal, were one offered. As a NATO-country official told the New York Times, under present circumstances “it would be hard for [Milosevic] to trust assurances from anyone, inside or outside the country.” His indictment only prolongs his dictatorship and the suffering of the Serbian people — he is already in the process of rigging the constitution to secure another term in office — and makes a bloody, Ceaucescu-style end to his regime more likely.
In rejecting amnesty for Milosevic last week, Carla del Ponte, the Yugoslav war crimes prosecutor, declared, “There will not be stability in the Balkans if Milosevic is not brought to justice in The Hague.” Milan Panic says the opposite is true: “Peace and stability require the departure of Milosevic,” he wrote recently in the Washington Post. “To attain this, something must be offered in return. . . . To those who say this would be a defeat for justice, I would argue that establishing the conditions for peace and stability in the Balkans serves a greater justice.”
Panic is right. Do we really want to live in a world without the option of impunity, as the advocates of the ICC urge? Should Yasser Arafat, the PLO terrorist turned Palestinian Authority president, be tried for the acts of terror he committed, regardless of the effect on the Middle East peace process? Should Russian president Vladimir Putin, under whose leadership Russia is today committing war crimes and crimes against humanity in Chechnya, be arrested next time he visits the West?
Thus far, U.S. opponents of the International Criminal Court have focused their criticism on the danger of politicized prosecutions of Americans and the threat the ICC poses to U.S. sovereignty. But the truth is even more damning. The ICC is a case of global do-goodism gone wrong. It will hurt, rather than help, the cause of freedom. This is a case where the opponents of “global justice” are on the side of democracy — and the human rights campaigners are unwittingly in league with tyrants.
Marc A. Thiessen serves on the majority staff of the Senate Foreign Relations Committee.
