Let Mubarak Go

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.

Mohammad Abed/AFP


Thug Life

Think Mubarak was bad? Kosovo's leaders are accused of being organ-smuggling, drug-dealing goons -- and the United States is looking the other way.

Amid fireworks and celebratory gunfire, Kosovo -- Europe's newest country -- turned three years old on Thursday, Feb. 17. But behind the scenes of revelry in the capital, Pristina, it's clear that it will take a lot more than flag-waving for the fledgling country to grow out of its terrible twos. For all the hope that was once showered upon this young democracy, it still faces an enormous uphill battle: the country has no international postal or telephone code; it cannot establish its own IP address; its athletes cannot partake in many international sporting events; thousands of NATO troops still remain as peacekeepers; and Kosovars can only travel visa-free to five countries -- one of which is Haiti. With only 75 out of 192 nations having recognized the new state, it remains in a purgatory of semi-sovereignty.

Meanwhile, it's been a big start to the year for new states and new orders. The regimes in Tunisia and Egypt have fallen. Southern Sudan claimed its independence with a near unanimous result. A wave of reform protests continues across the Middle East. After a bit of diplomatic wavering, the United States reaffirmed its commitment to self-determination and human rights, promising to support "principles, processes and institutions -- not personalities" in its engagement with the new governments taking root in North Africa.

Trouble is, a sobering assessment of the successes and failures of state-building since the end of the Cold War demonstrates that governance and development work best when a population rallies behind an enlightened leader -- and suffer when one does not emerge. Principles of democracy and human rights have to abide in a leadership and must be bought into by a population.

And here's the rub: While the United States grappled with its inability (whether for lack of a fulcrum or fear of meddling) to use leverage to remove the regimes in Tunis and Cairo, it actually does have the power to affect change and promote transparent and accountable governance in Pristina -- where a coterie of thuggish leaders, holdovers from a Kosovo Liberation Army (KLA) unit accused of war crimes and weapons dealing, now run the country. But, thus far, Washington has been unwilling to exert the necessary pressure on Kosovo's leaders -- and in its impotence pours billions of dollars down the drain and risks condemning the state to thugocracy.

While much has been made of America's financial support of Egyptian President Hosni Mubarak's regime and other autocratic dictatorships in recent weeks, Kosovo's democracy has received far more direct American aid in recent years -- in 2010, Kosovo received more than twice the American bilateral foreign assistance per capita than Egypt. Yet, after more than a decade of immense international investment and the best-resourced humanitarian mission the world has ever seen, Kosovo enters its fourth year of independence amid its own internal turmoil.

Yesterday, Serbian Foreign Minister Vuk Jeremic requested that the United Nations Security Council investigate allegations of organ trafficking and other serious war crimes submitted to the Council of Europe by Swiss Euro MP and former prosecutor Dick Marty in December of last year. The human rights atrocities were allegedly carried out against ethnic Serbs and Albanians accused of collaborating with Serb forces during the 1998-1999 conflict in the former Serbian province. Those accused of carrying out the acts include senior members of Kosovo's central government.

As it turns out, U.S. support for the world's youngest democracy has been almost as bad for economic security, political stability and democratic principles as backing the globe's oldest autocracies. Kosovo remains the poorest country in Europe. Just under half the population is jobless and living in poverty, 14 percent in extreme poverty. The women of Kosovo produce Europe's highest birth rate while facing its worst maternal and infant mortality rates. Only one in five youth under the age of 25 are employed. Access to health care and education outside the major cities is limited. Electricity supply remains patchy across the country -- despite donor funding in excess of €1.1 billion.

Of course, human and economic development in war-torn societies can be a slow and arduous process. The world should not expect its investment to instantly bear fruit. But support for Kosovo has been premised on developing a politically stable, democratic country.

In actuality, it has entrenched deep political divisions in an already fragmented government and ensconced an elite that now operates above the law. Having failed to improve Kosovo's moribund economy and human development indicators, the former-KLA power brokers of the central government have somehow managed to accrue personal wealth vastly out of proportion with their declared activities. Their development and state-building policy has largely consisted of maintaining its own power over institutions of state, security, and law and order.

Until last year, keeping Kosovo stable -- or at least appearing so -- had been prioritized by the international community over pursuing clear evidence of increasing corruption among senior government officials. But, as the international money poured in throughout 2010, the veneer cracked. A wave of organized crime, war crime, and corruption allegations swept the senior membership of the Kosovo government and the leaderships of its major political parties.

On April 28, 2010, international police raided the offices and home of Transport and Telecommunications Minister Fatmir Limaj in connection with a corruption probe into a €700 million infrastructure project. Suspected of soliciting bribes and laundering up to €2 million from the public purse, the raid on Limaj was the result of a two-year investigation that started shortly after he took office in January 2008. At that point, he had only just returned in September 2007 from his second trial at the International Criminal Tribunal for the former Yugoslavia ICTY -- indicted but never convicted of illegal imprisonment, cruel treatment, and inhumane acts during the war with Serbian forces in 1998-1999.

At the time of Limaj's arrest, the European Union Rule of Law Mission in Kosovo (EULEX) announced he was only one of seven ministers being investigated for links to organized crime and corruption in office.

Two months after the raid on Limaj, on July 21, 2010 popular former Prime Minister Ramush Haradinaj was indicted for a second time by the ICTY to stand trial for war crimes including torture, rape, and crimes against humanity. His application for provisional release was denied and he currently awaits trial in remand at the United Nations Detention Unit in The Hague. On Jan. 31, it was announced that the opposition party he leads from his cell, the Alliance for the Future of Kosovo, placed fourth in the general election -- taking a substantial 11 percent of the vote.

Two days after Haradinaj's arrest, Kosovo police arrested central bank governor Hashim Rexhepi on charges of corruption, tax evasion, and money laundering.

But it was the leaking of a Council of Europe (CoE) report just days after Kosovo's first post-independence election on December 2010 that really put this criminality and corruption out in the open. On Dec. 12, human rights rapporteur Dick Marty submitted a report to the CoE containing serious accusations against the local leadership and international missions currently presiding over Kosovo.

The report alleged that the ICTY, United Nations, NATO, and individual Western governments had failed to thoroughly investigate serious war crimes committed by the members of a KLA unit known as the Drenica Group during the 1998-1999 conflict with Serbia. According to Marty's report, the unit had violently seized and operated the lucrative trading routes across the Prokletije mountain range on the Kosovo-Albania border. He alleges the group amassed considerable fortunes supplying weaponry to local forces -- and trafficked in human beings, heroin, and organs taken from Serb and Albanian prisoners of war.

Marty's report identified the leader of Drenica Group as a man called "The Snake" -- a.k.a. Hashim Thaqi, who two days earlier had been named prime minister re-elect of the Republic of Kosovo. He has officially taken office in time for Kosovo's third Independence Day celebrations.

All of the condemned leadership have been quick to accuse the international community of "political lynching," interfering with domestic affairs of state, and inappropriate investigations into an independent government. Hardly.

In fact, the most disturbing aspect of these events were the revelations that Kosovo's thugocrats owe their rise and continued impunity to the toleration or outright support of the international community -- particularly the United States.

From the outset of the NATO intervention into Kosovo in June 1999, it was an American-devised strategy that drove allied forces to combat Serb atrocities through a 78-day aerial bombardment. Explicitly eschewing a land assault meant control on the ground fell to KLA forces -- with dire consequences for the safety of their Albanian opponents and the ethnic minorities of Kosovo. The summer of 1999 saw violent retaliatory attacks claim the lives of some 50 Serb and Roma civilians a week before the international forces regained control.

This strategy also set the terms for a co-dependent relationship between the West and the former KLA leadership to maintain a stability that took far too long to establish in the aftermath of the 1999 intervention. During the time it took for NATO and the U.N. to deploy in the wake of the bombing, the presence and actions of the KLA generated a perception among the local community that they were supported by the American and international forces.

American officials later did little to change that perception: It was their lobbying and support that gave the KLA the legitimacy they needed to transition from armed gang to political powerbrokers.

In 1999, the U.S. endorsement of Thaqi as hero was sealed with a kiss planted on his cheek by then Secretary of State Madeleine Albright on her post-intervention visit to Kosovo. In 2004, every American staffer at the U.S. Embassy was invited to attend Haradinaj's wedding -- and, despite his links to organized crime and impending indictment on war crimes, they went. Most recently, the night after the raid on Limaj's home and offices, U.S. Ambassador to Kosovo Christopher Dell was seen laughing and chatting with the minister at a well-attended party in Pristina.

It is difficult to see how democracy or respect the rule of law could develop and flourish amid such overt displays of American support for a corrupt and criminal leadership. As in Egypt and across the Middle East, this policy of impunity comes at significant cost to the objectives and perceptions of the United States and its Western allies. This backing for Kosovo government officials has undercut efforts to pursue indictments for war crimes and investigate high-level corruption. The war crimes taking place throughout the 1998-1999 conflict and in the immediate aftermath have never been fully investigated -- in fact, in some cases they have been covered up.

International judicial experts complain that the United Nations internal war crimes process "has always been very political," and that some "UNMIK cases were sent to [U.N. Headquarters in] New York rather than decided on the merits of the case." They allege international political interference stopped some cases from going before a court because "the political ramifications would have been too great." And only days before the independence celebrations, their accusations were given considerable weight with the leaking of classified U.N. documents that show UNMIK ran an incomplete investigation into the organ trafficking case brought to light by Marty in late 2010. The documents date from 2003 -- when UNMIK was in full control of the internal war crimes investigations and prosecutions.

So, that Kosovo holds elections should be small consolation to those in U.S. foreign policy who advocate championing principles over personalities. Democracy has not stopped the West from supporting and installing its preferred leaders in countries of geopolitical strategic importance -- local strongmen who hold the tumultuous societies of war-torn countries together with an iron fist rather than a rule of law.

As the United States and its allies contemplate how to support the latest wave of democratization, it must recognize that this reflex -- as evidenced by its policy in Kosovo up to today -- remains oriented toward backing power over virtue. As Condoleezza Rice noted in an abortively transformational speech in 2005, support for autocrats in the Middle East achieves neither democracy nor stability. It is an easy out for the United States to claim that it must not support personalities, and rather let people independently decide their own leaderships. However, it is also a convenient way to avoid accountability while preaching the principles of democracy from afar, laying the blame when things go south on societies still recovering from civil war.

The first principle in aiding the construction of new democracies must be to support conditions that prevent anyone from operating above the law. Even in a place like Kosovo, where Western influence might seem overwhelming, allowing space for impunity vitiates virtually everything else accomplished by even the most extravagant intervention.

Armend Nimani/AFP/Getty Images

Corrections: Spelling of Rice's first name and year of her speech.