Algeria is Playing an Old Game

By Erna Paris, The Ottawa Citizen, September 3, 2011

There’s a very old game being played out before our eyes and the stakes are high. Members of the Gadhafi family have found sanctuary in Algeria, the welcoming country next door; and we may be sure that Moammar is also looking for an escape route across the border.

Offering refuge to war criminals and dictators used to be a centrepiece of conflict resolution at the end of wars and other crises. There was a ready formula: Spirit the bad guys out of the country, proclaim the dawn of a new day, then get on with the business of rebuilding. There have been many recipients of this largesse, but let us remember just two 20th-century beneficiaries: the Nazi war criminal Klaus Barbie, for one, who lived contentedly in Bolivia for 40 years after the Second World War until he was returned to France to stand trial for crimes against humanity. Chaos erupted the moment he stepped onto French soil. There had been no justice, no reconciliation. But starting with his trial in 1987, France entered a new era of accountability for crimes that had been swept under the rug, but not forgotten.

Idi Amin of Uganda was another. In 1979, when dissent grew too strong for the brutal dictator to manage, he too found a safe haven from justice: in Libya, as it happens, where his friend Moammar Gadhafi welcomed him as a brother.

The government of Algeria may not have noticed that expectations about criminal accountability have changed in recent years. The slow-growing realization that national reconciliation must include transparent justice for both the victims and the major perpetrators of crimes against humanity reached a high point in 2002 with the creation of the International Criminal Court, the first institution of its kind. The ICC is a transnational organization mandated to prosecute the perpetrators of genocide, crimes against humanity, and war crimes.

Today, its 117 member states include almost all the world’s democracies.

The stakes are high for the entire international community because in February 2011 the United Nations Security Council passed a resolution referring the Gadhafi case to the ICC, a unanimous decision made virtually in tandem with a second agreement to protect Libyan civilians by actualizing the legislation known as the Responsibility to Protect (whose guidelines originated in Canada, as it happens) with a NATO no-fly zone.

For the first time, courtroom justice for the perpetrators of major crimes was integrated into the workings of real-time diplomacy. The United Nations cannot afford to see the legitimate rulings of the Security Council ignored without losing credibility, which would be in no one’s interests. Algeria’s counter ploy has upped the ante for the global community by placing us at a crossroads between the old (an offer of sanctuary) and the new (a call for justice).

The need to confront the transgressions of Moammar Gadhafi goes further. It is critical that unaddressed criminal impunity not be allowed to poison the future of Libyans who have fought so hard for their freedom.

Should Gadhafi be captured alive, there is plenty of evidence to warrant a trial. When the ICC prosecutor Luis Moreno-Ocampo issued arrest warrants last May, he cited information that civilians had been attacked in their homes and that demonstrations were being repressed using live ammunition. The recent victory of the rebels revealed other atrocities, including the discovery of more than 50 massacred prisoners in Tripoli. The question is, where should he be tried? By the ICC in The Hague? By the Libyan people at home?

British Prime Minister David Cameron recently spearheaded a move to hold prosecutions in Libya, the idea being that Libyans alone should assume responsibility for the outcome of their revolution. This would be a mistake in my view. While it is true that the International Criminal Court is a tribunal of last resort, it is also true that its cases are triggered when a suspect’s country of origin either refuses to mount a trial that meets international standards, or lacks the capacity to do so.

The latter is precisely the point. It is unrealistic to expect Libya, a country that has been tyrannized for decades, to have courts that operate according to due process. It will take years to build an independent judiciary. Few would want to repeat the travesty of the Saddam Hussein trial in Iraq, where the courts were similarly dysfunctional. Three defence lawyers were murdered and the chief judge was forced to resign because of “softness.” The Saddam trial was a poster case for not prosecuting major international crimes in countries without capacity.

There is another reason why Libya’s trials should take place in an international court: last May the ICC prosecutor announced that he was also investigating allegations of war crimes committed by the rebels. ICC indictments depend on the “gravity” of the crimes committed, as defined in the Rome Statute that underpins the tribunal. Although there is as yet no known evidence of massive, planned infractions, reconciliation will nonetheless depend on judicial even-handedness. It is no insult to the victorious rebels to question whether they are likely to investigate, indict, and try war criminals from their side of the conflict.

Legitimate and independent prosecutions can potentially contribute to the process of national rebuilding. Because they place a symbolic marker between the abuses of the past and the new era by making perpetrators accountable and by acknowledging the suffering of the victims, properly run trials are a key to reconciliation and a sustainable transition.

Algeria should check the calendar before allowing Moammar Gadhafi to slip over its border. In 2011, the offer of sanctuary to a tyrant on the run is a backward step.

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