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Revenge or right?

January 13, 2012

Killing, exile, or a fair trial? The Arab Spring states have treated their fallen dictators in strikingly different ways. There is no legal consensus on how the nascent states are dealing with their past.

Libyan people burn an image of Libyan leader Muammar Gadhafi
Revenge obstructs democratization, say analystsImage: picture alliance / dpa

They all ruled their nations for decades, before being brought down by their own people: Tunisia's former President Zine El Abidine Ben Ali, Egypt's long-ruling dictator Hosni Mubarak, Libya's self-proclaimed revolutionary leader Moammar Gadhafi, and Yemeni President Ali Abdullah Saleh. But there are huge differences in what happened to them next.

Ben Ali, the first head of state to be taken by surprise by the strength of the protests in what became known as the Arab Spring, fled to Saudi Arabia as early as January 2011. Here, he has found a refuge from justice.

Mubarak, on the other hand, opted to stay in Egypt, even though he could see his own demise coming. He is now facing trial, with prosecutors calling for the death penalty. Gadhafi, staying true to his word, fought to the bitter end and was killed shortly after falling into the hands of Libyan rebels. The exact circumstances of his death remain a mystery. Saleh, meanwhile, was guaranteed immunity before he could be ousted, meaning that he may well never face justice.

For months, legal experts have been discussing how best to deal with fallen dictators. There is no standard procedure since the circumstances in the individual countries differ significantly, and there are different opinions on the qualities of the respective national institutions.

Saddam Hussein after his execution
Saddam Hussein's trial and execution included many legal irregularitiesImage: AP

There does seem to be a consensus - both inside and outside the Arab world - that all four leaders violated human rights while they were in office. But what remains unclear is which court a former dictator should face. Should the legal structures in their respective country deal with him, or should the International Criminal Court in the Hague take over?

National or international law?

Reinhard Merkel, professor of criminal law and philosophy of law at the University of Hamburg, is sure of one thing: "In cases where serious crimes have been committed, the law cannot simply be ignored." But he argues that the choice between national and international law needs to be made on a case by case basis.

"Both options throw up serious problems, but also a few advantages," Merkel told Deutsche Welle. "If the domestic legal resources aren't sufficient to guarantee a fair trial, then it's obviously a better solution to transfer the case to the International Criminal Court."

But Merkel acknowledges that holding a trial in the home country carries a symbolic value to the population that should not be underestimated. After all, it is a chance to demonstrate the rule of law and establish justice. That's an important factor, especially in Arab countries trying to present a new face to the world.

"The rule of law is the strongest expression of the sovereignty of a government and a state," says Merkel. "Many of these new governments want their authority to become a matter of public record."

First principles, questionable trials

But these new governments also have another motive for carrying out the trials at home: revenge. "That's a dubious reason by any standard, and offers little peace for the future," says Merkel.

Iraq presents a good example of this. Although fallen dictator Saddam Hussein's trial had a legal basis, its process was highly questionable on many counts.

"Certain prejudices were not removed," says Merkel, summing up some of the failures. "The accused was given no hearing in a number of charges, and Saddam Hussein was executed immediately after the sentence, although he had a right to appeal."

President Bashar Assad
Some fear Assad faces the same fate as GadhafiImage: picture-alliance/dpa

Merkel argues that these defects had a negative impact on the democratization of Iraq, a country still marked by civil war. The NGOs Amnesty International and Human Rights Watch both criticized the trial, too.

André Bank, of the German Institute of Global and Area Studies (GIGA), has similar reservations about neighboring Syria, where the regime has been violently suppressing protests for the past 10 months. Many opponents have begun to demand the death of President Bashar al-Assad, instead of calling for a legal trial.

"More and more protesters are openly calling for the use of violence," says Bank, who fears that a Gadhafi-scenario could easily unfold if the regime is toppled and Assad captured.

Dilemma for the West

Michael Bothe, retired professor of international law at Frankfurt University, also thinks the growing calls for revenge in Syrian society could pose a problem in the future. "Killings like Gadhafi's always become a burden in retrospect," Bothe told Deutsche Welle.

Dealing with the past is a necessary to safeguard peace, agrees Arndt Sinn, criminal law professor at the University of Osnabrück.

"Dealing with a ruthless regime is an essential step towards democratization," he said, but added that the circumstances needed to be right: "A trial must adhere to standards of human rights. Only then is a society on the path to democracy."

Bank thinks this poses a dilemma for western states in their attitude to the Arab Spring. Although President Assad may well be responsible for the deaths of thousands of Syrians, and many opposition leaders want him to pay with his life, western governments must insist on a fair and legal trial - without being seen to be telling Syrians what to do.

Author: Anne Allmeling / bk
Editor: Rob Mudge