Sometimes trying dictators for their crimes can do more damage than good.
The overthrow of Zine el-Abidine Ben Ali's dictatorship in Tunisia and fall of Hosni Mubarak in Egypt led almost immediately to calls for both men to be brought to justice. One of the first acts of the new Tunisian government was to issue an arrest warrant for Ben Ali, his wife Leila Trabelsi, and a number of members of their immediate family. It then asked Interpol to pressure Saudi Arabia to stop giving them sanctuary and turn them over to the Tunisian authorities. Mubarak has not suffered a similar fate -- not so far, anyway -- but already the Egyptian authorities have arrested three ex-ministers, as well as steel magnate Ahmed Ezz, on corruption charges. It is unlikely that this will be enough to satisfy those who took to the streets in Cairo and Alexandria to demand that the tyrant give up power.
Their determination should come as no surprise. The deep roots of the uprisings in Tunisia and Egypt may be economic, but the calls in the street were for democracy and human rights. It may have taken awhile for the notion of international justice to arrive in the Arab world, but that it did was inevitable -- it is the signature achievement of the human rights movement over the past 30 years. Whether it takes the form of truth commissions, as in post-apartheid South Africa and Argentina after the fall of the military dictatorship; special tribunals as were established in Sierra Leone, East Timor, and Cambodia; or the International Criminal Court, the idea that there can be no lasting end to a conflict or no certainty a people can safely put the bitter experience of a dictatorship behind them without sooner or later bringing warlords, torturers, and tyrants to justice is now gospel in the human rights community and at the United Nations, and almost as widely accepted among the other major international actors. In the post-Cold War era of human rights, the classical international relations view that often a choice has to be made between peace and justice has largely given way to the assumption that unless the two are pursued together, neither will be realized.
It is a lopsided debate. People may make a point about timing -- for example, that it would have been a mistake to try to hold accountable Chilean tyrant Augusto Pinochet for his crimes immediately after he stepped down from power, because the army might have launched another coup. Whereas some years later, they argue, that threat had largely abated and justice could safely be served. But such is the intellectual and moral hegemony of "human-rightism" (and whatever its partisans may contend, it is an ideology, not just a set of legal benchmarks) that almost no one in any reputable international forum now dares suggest that actually sometimes it is crucial to give up justice in favor of peace. To do so would be to accept something that decent people in the early 21st century seem to find all but unthinkable -- that victims of torture and repression will not get the moral restitution that indictments and trials promise and that the democratic regimes that succeed oppressive ones have both a practical and ethical obligation to provide that relief, that closure.
Some human rights activists believe that the desire of the new Tunisian government to establish that it has the democratic legitimacy to try Ben Ali has led it to move so quickly to ratify a number of the most important human rights treaties that the dictator had steadfastly refused to sign. They point to the fact that the Council of Ministers of Tunisia's transitional government announced on the evening of Feb. 1 that the country would ratify the Rome Statute of the International Criminal Court, the International Convention for the Protection of All Persons from Enforced Disappearance, as well as the two optional protocols to the International Covenant on Civil and Political Rights. The second protocol, incidentally, commits Tunisia to formally abolishing the death penalty (Ben Ali had, last year, imposed a moratorium). If this theory is correct, as it appears to be, then it marks a watershed moment. In the past, changes in international human rights norms were seen as leading, however slowly and painfully, to trials and other practical steps to reform the abusive practices of the past. But the process seems to have been reversed in the Tunisian case: The populist desire to bring Ben Ali and the Trabelsis to justice has led authorities to embrace the broad norms associated with global human rights. And, again, it is certainly possible that a similar dynamic will take hold in Egypt.
The larger question, however, is whether -- as human rights activists take as an article of faith -- such trials will strengthen the democratization of those countries in the Arab Middle East that have or may yet depose their long-ruling dictators, just as they have in other parts of the world. Or will this newfound willingness to jump into the arms of international justice be more of an impediment to peaceful democratization? To put the matter starkly, is it really better to go after Ben Ali in his Saudi Arabian exile and keep the pressure up on the House of Saud to disgorge him to Interpol? Or might it not be better to leave well enough alone, going after the Ben Ali clan's global assets but leaving the man himself to fade to an irrelevance that a reopening of wounds -- as a trial most certainly would -- actually might prevent?
To state the obvious, neither Ben Ali, let alone Mubarak, ruled alone. Nor will even the most thorough-going political and bureaucratic housecleaning sweep all their cronies away. To the contrary, it is a virtual certainty than many, though of course not all, of those who collaborated with these tyrants -- or held positions of power thanks to their patronage or made immense amounts of money under the old system -- will remain central in the new Tunisia and the new Egypt. Mubarak is 82 and has cancer, so surely there is a question of whether the passions (not to mention the embarrassing revelations) that a trial would stir would best be left unkindled? It is true, of course, that if the dictator's former ministers of interior, tourism, and housing really are brought to trial, much detail about Mubarak's role in the corrupt practices with which they are charged will inevitably come out. But they do not compare with the revelations that likely would be disgorged were Mubarak himself put in the dock.
For all the easy talk in human rights circles about the central importance of post-conflict or post-tyranny justice, the empirical evidence about the long-term effects of this process on durable peace or social comity is thin at best and varies greatly from place to place. There can be no question that the South African Truth and Reconciliation Commission process -- where, if abusers publicly admitted to their crimes, they would not be prosecuted -- played an essential role in the forging of a post-apartheid society. On the other hand, the Pinochet indictment took place after there no longer existed any serious threat to Chilean democracy. And one can certainly make the case that sending tyrants into exile has in many cases done as much to speed reconciliation and facilitate durable peace as any trial. Idi Amin in Uganda and Jean-Bertrand Aristide in Haiti are two obvious examples from the past. So why do we automatically suppose the citizens of Egypt and Tunisia deserve a formal reckoning with their former leaders? And why do we insist that they could not possibly be better off if their leaders were simply left to run out their days in impotent exile?
Strip away the wishful thinking about human nature, political reality, or the redemptive potential of the law, and the case that fallen dictators and those who served them should always be brought to justice becomes far more debatable. Indeed, the certainty that democracy cannot take root without an end to impunity looks more, in its inflexibility, like the intellectual Achilles' heel of the global human rights movement. There has not been a revolution yet that has fully met the expectations of those who made it. In Tunisia and Egypt, the degree of anger and cynicism that would surely be engendered by what these trials would reveal might do more to impede the peaceful movement toward democracy than allowing Ben Ali and Mubarak to simply fade away. Democracy is hard enough. And however much we would like democracy, peace, justice, and reconciliation, the sad truth is that not all good things can always be reconciled.
My suspicion is that this is one of those times.