For international jurists, the past week has been like no other. First, Ivory Coast strongman Laurent Gbagbo is captured, and the new regime says it intends to hand him over to the International Criminal Court (ICC). Then, Tunisian authorities announce that they have prepared 18 charges against their former dictator, Zine al-Abidine Ben Ali. He may have already fled to Saudi Arabia, but Tunisians have a warrant for his arrest and they will be ready if they ever get the chance to prosecute him.
Of course, the biggest possibility of a former dictator receiving his due is still in Egypt. Egyptians cheered the news last week when they heard that Hosni Mubarak and his two sons had been detained for questioning. Tora prison, which once held Mubarak’s critics and enemies, is now hosting a who’s who of the former ruling regime. The Egyptian military — which has recently squared off against protesters in Tahrir Square and faced increasing criticism for its violence in suppressing dissent — may believe that it needs nothing short of an imprisoned Mubarak to calm public sentiment.
It is not surprising that the military would choose to move against Mubarak’s sons. Egypt’s generals had long resented their corruption and cronyism. But the possibility that the senior Mubarak may live out his remaining days in prison pinstripes is a testament to how powerful the Egyptian street remains.
But a potentially even bigger news item was mentioned quietly on Tuesday. During a news conference, Egyptian Foreign Minister Nabil al-Arabi said that Egypt was in the early stages of ratifying the Rome Statute. In other words, Egypt intends to join the International Criminal Court. That may seem like a footnote to some, but the prospect of Egypt joining this international legal body has enormous implications.
For starters, this move will raise the possibility that Hosni Mubarak’s final days could be spent defending himself before prosecutors at The Hague. Furthermore, other members of the regime — particularly those responsible for the murder of protesters during the revolution, let alone during the regime’s rule — could also find themselves in the dock.
It will also make some other people — far removed from Cairo — a little queasy. It is well known that Egypt, as a close ally of the United States, became a destination for the rendition of terrorist suspects. If former high-ranking Egyptians are forced to defend themselves before an international court, how likely do you think it will be that they will remain quiet about who ordered their past crimes, especially those they committed at America’s behest? The testimony that comes out of those trials would make the revelations from WikiLeaks pale in comparison.
To be clear, this possibility is hardly a foregone conclusion. I called David Bosco, a lawyer and professor at American University who is writing a book about the ICC, to discuss some of the hurdles. Generally, when states join the ICC, they are not granting the international court the right to try officials for past crimes. However, as Bosco explained, Egyptian authorities could give the ICC the right to look into past abuses. And if they did, the prospect that former senior Egyptian officials could find themselves being questioned by an ICC prosecutor becomes a real one.
What does this mean for the United States? The possibility that the testimony delivered at such a trial could lead to the investigation of U.S. officials is remote. As Bosco pointed out, the ICC is “still a political body,” and it probably won’t be eager to pursue such a case, even if it merits investigation. But again, the possibility of America’s direct counterparts providing agonizing detail over what requests for torture were made and by whom could be devastating for American foreign policy in the region. Abu Ghraib and Guantanamo — in slow motion.
Which should raise a bigger question: Scholars debate whether courts such as the ICC are good at deterring dictators from committing their worst crimes. Do some officials think twice about brutalizing their population because they fear being brought to justice? Or are tyrants like Col. Moammar Gaddafi willing to fight until the last man, precisely because they want to avoid a lifetime in prison?
We don’t know the answer to that one. But here is something we do know. No one ever predicted that Mubarak and his henchmen could be forced to talk. And no one certainly ever believed that Egypt — that safe, stable, reliable Middle Eastern ally — would seek to join the ICC of its own accord.
But now that it is, perhaps it is also time that a certain superpower reconsider the wisdom of outsourcing to others those things it considers too reprehensible to do itself. Because, as Mubarak and his sons are learning, accountability is sometimes not as far away as it seems.