International Justice in Haiti and Tunisia?

Former Tunisian President Zine el-Abidine Ben Ali - image courtesy of France 24

Should two former dictators, the Tunisian Ben Ali and the Haitian “Baby Doc” Duvalier, face trial in front of an international tribunal such as the International Criminal Court?

The idea has been discussed, albeit briefly, especially in the case of Ben Ali following his remarkable downfall caused by what is now known as the Jasmine Revolution. Isabelle Tallec, independent journalist who blogs at Esprit de Justice (in French – but with a Google Translate bar) about issues relating to international justice, reported a few days ago on the different calls for Ben Ali to be indicted in front of an international court.

Ms. Tallec writes:

Ce n’est encore qu’un mouvement embryonnaire, mais qui a trouvé ces derniers jours un prolongement judiciaire. Ben Ali tombé, des appels épars ont commencé à circuler sur Internet demandant à ce qu’il soit traduit en justice et réclamant une enquête sur les crimes allégués du régime déchu.

Certains émanent de groupes informels, déjà existants ou constitués pour l’occasion, d’autres, d’organisations plus structurées. Des pétitions parfois relayées par les médias français et qui pour la plupart sollicitent l’intervention de la Cour pénale internationale (CPI).

Jean-Claude 'Baby Doc' Duvalier Photo: REUTERS

While in Tunisia a dictator flees his country, in Haiti, a former dictator, Jean-Claude “Baby Doc” Duvalier, returns to “help with [the] reconstruction” of his country, shattered by an ongoing humanitarian crisis since an earthquake devastated the country over a year ago. Whatever Baby Doc’s real reasons for returning to his broken home country are, he is now in turn in trouble with Haiti’s justice system, which has charged him with theft and corruption and is considering investigating alleged crimes against humanity committed during his tenure as the small nation’s despot.

Should international justice have a role in each of these crisis? In my opinion, no. At least, not as things stand today. Several aspects should be considered before calling for international mechanisms to come into play:

  • the gravity threshold, which has been the object of discussion last December when the eventuality of an investigation by the International Criminal Court into the situation in Korea was raised, has not been reached in any of the cases. Both Ben Ali and Baby Doc have committed atrocious crimes against their own people, there is no denying that in any way. But as was discussed previously, there is a quantitative and qualitative appreciation of the gravity of a situation for judicial international mechanisms to come into play that require that crimes committed truly are of international concern – i.e. threaten international peace and security – which is not the case here.
  • jurisdiction: speaking strictly of the ICC, it has no jurisdiction for any crimes committed by Duvalier, and considerably limits its intervention in Ben Ali’s 23 year rule. To fully investigate each of these men, an intervention of the UN Security Council would be necessary and would certainly amount to the creation of a Special Tribunal for each case (I have toyed in the past with the idea that the UNSC could refer a pre-2002 situation to the ICC – it would be like creating a new tribunal minus actually having to set up a new tribunal – but that idea has been consistently shut down by my interlocutors, so I assume it’s a half-baked idea). Needless to say, the UNSC is a bit weary of ad hoc tribunals and the cost they entail, and in the current context of international economical crisis, it is more than unlikely;
  • complementarity: lastly, but perhaps more importantly because it encompasses not only international tribunals but essentially all forms of international intervention, international judicial mechanisms should not intervene because the Haitian and Tunisian judiciary should be able to deal with this domestically – especially Tunisia. International justice would put itself on a dangerous path indeed if it attempted to intervene in every high-profile case mentioned in the headlines, and must contain itself to cases where it is absolutely necessary for it to intervene (and there’s plenty to do already). Domestic routes to justice are always the better choice when they are a possible and credible option.

Lessons for the future of international justice? Although international justice should not intervene in the form of an actual international tribunal in each of these cases, it does seem to raise – at least, for me – the question of international assistance in conducting each of these trials to guarantee the possibility for each of these countries to conduct them according to international standards.

To be perfectly clear, although I am neither an expert on Tunisia or Haiti, I feel this concerns more the latter than the former: Tunisia is in far better shape than Haiti, and has the necessary institutions and qualified jurists and human rights lawyers to conduct – in my humble opinion – fair trials against Ben Ali, his (step-)family, and other cronies.

Regarding Haiti, the situation is more difficult. Amnesty International has already called on the United Nations to offer “technical support” to the Haitian authorities. A country as poor as Haiti with its notoriously broken-down public institutions will certainly need the international community’s help in rendering justice against its former dictator.

This brings to a small pet project of mine. I think that part of the future of international criminal justice, and in particular of the International Criminal Court, will also be to be able to offer legal and judicial assistance and expertise to countries who ask for it but which does not need a full-fledged international investigation and trial. I do not believe in an inherent rivalry between national, hybrid, and international tribunals, nor do I believe that any is a better solution than the others.

What I do believe however is that each has its advantages and limits and must be used accordingly to the needs of the situation, but also that it would be interesting to consider regrouping the different levels of expertise needed under one institution, such as the ICC, who would be tasked with organizing international trials when they are necessary, but also with creating hybrid tribunals or assisting national jurisdiction if the situation does not call for such heavy-handedness. Simply put, partly transform the ICC as a capacity-building tool.

I’m sure the contributing States will love this kind of idea…

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  1. #1 by Daniel on 23 January 2011 - 04:26

    Impressive article as usual! Thank you Xavier. Regarding your latests paragraphs, don’t you think this kind of arbitration for the creation of an hybrid international/national court already exist? I seems to me that when it’s possible, there is always a balance between national and international representation, i.e. the classic ICC and the Extraordinary Chambers in the Courts of Cambodia.
    I hope I’m not totally off the track.

  2. #2 by Mihai Martoiu Ticu on 23 January 2011 - 08:58

    There are some problems with national courts:

    (1) The judges might be very closely related to the regime. For instance I have read that no South-African judge ever expressed any remorse or turned herself in to The Truth and Reconciliation Commission. The same is the case in many dictatorships where judges are just nephews of the dictator.
    (2) The judges might be appointed ad hoc by the opposition. Ceausescu was tried and executed within an hour.
    (3) The laws of the state might not be sufficient. In many states there is no law against being a dictator or against doing stuff dictators usually do. For instance Ceausescu was tried for crimes that were not mentioned in the law of the country. Or in Egypt the laws permit torture.

    It seems to me that trying a dictator in a country that does not have a reasonable judicial system, it does not really do justice. The dictator is either acquitted, or he does not receive a fair trial.

    Maybe a new International Tribunal for Dictators and Lying Republicans might be a solution.

  3. #3 by CRY ME AN ONION on 23 January 2011 - 10:57

    I absolutely love the reply from M. M. Ticu “Maybe a new International Tribunal for Dictators and Lying Republicans might be a solution” .
    The other elements concluded by the aforementioned sentence were very much to the point.
    It is probably the reason Kenya is courting the AU to vote as a block for a local tribunal for the 6 high profile personalities adversely mentioned by Ocampo. Their brethen need to go scott free.
    The odds are in the favor that it will pass. But then their is always a Jasmine revolution.
    Cheers

  4. #4 by Xavier Rauscher on 23 January 2011 - 14:58

    @Daniel: Of course, hybrid courts already exist, but so far have always been created on an ad hoc basis, following usually an intervention by the UN Security Council. My “idea” would be to concentrate within the Rome Statute system, and so the International Criminal Court, expertise and means to offer technical assistance so that a State that would be interested in obtaining international help in supporting either its domestic courts or to create a hybrid court could “self-refer” its situation to the ICC without calling for full-fledged and heavy-handed international trials.

    @Mihai and Cry Me An Onion – Ha! The “International Tribunal for Dictators and Lying Republicans” made me laugh. It’s a nice dream, but its dock would be overloaded I’m afraid…

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