It might look like the Tunisians have it worst, lacking any way to punish the man who oppressed them for 23 years, while the Libyans can rest assured that Gaddafi will sooner or later either die or stand trial. The Egyptians, who can’t feel sure that sympathetic generals and judges won’t eventually let Mubarak retire to his seaside villa, are somewhere in between.
In fact, the real calculus is something like the opposite. Tunisians are lucky to have Ben Ali off their hands while they try to set up a new democratic system. And Libyans are stuck in a civil war in large part because of Gaddafi’s international prosecution.
No, this is not the position of Western human rights groups, which have been hailing the ICC’s pursuit of Gaddafi, urging on Egypt’s prosecutors and suggesting that Bashar al-Assad of Syria should be next. But the history of revolutions against dictatorships — in Latin America, Eastern Europe and the Middle East itself — tells a different story: The more immediate and uncompromising the justice for a dictator, the worse it is for the post-revolution regime.
First, the record shows that exile with impunity has its benefits. Before the 1980s, it was common for deposed dictators to slink quietly away into exile, while enjoying ready access to their Swiss bank accounts. Haiti’s “Baby Doc” retired to France. Uganda’s Idi Amin went to Saudi Arabia. Their enemies were at least temporarily frustrated, but the revolutions that ousted them were unhindered. Tunisia, it’s worth noting, is so far doing better than any other country where the Arab Spring has sprung.
In the 1980s new democracies in Latin America pioneered the “truth and reconciliation” model — a mix of investigation of past crimes, reparations to victims and amnesty to former rulers. This, too, preserved stability — but over time many of the deals have come undone. The Argentine “dirty war” generals and Chile’s Augusto Pinochet were put on trial decades after their departure. Maybe that’s why Yemen’s Saleh has backed away; now he too may become an exile in Saudi Arabia.
Temporary amnesty, however, looks good alongside the ugly record of quick domestic justice for dictators. The shoddy trial and squalid midnight execution of Saddam Hussein was an accelerant in Iraq’s sectarian war in late 2006. Romania’s 1989 Christmas Day execution of Nicolae Ceausescu and his wife had the effect of delaying the country’s transition away from its corrupt Communist rulers for years.
There’s good reason to worry that a quick trial of Mubarak could produce similar results. No doubt the old man is guilty of corruption and human rights crimes. But Egypt’s unreformed justice system and temporary military regime are in no position to carry out a thorough investigation or a fair trial. Mubarak could be subject to the death penalty, but even if he escaped it the trial could polarize the country just weeks before a planned parliamentary election. As in Iraq, only extremists will benefit.
Yet Egypt is less endangered than Libya — where Gaddafi has a powerful incentive to fight to the death, greatly prolonging what could have been a short war. The ICC prosecution means that if Gaddafi surrenders he will end up in a cell at The Hague, rather than a comfortable exile. The U.N. Security Council has the authority to suspend ICC proceedings and could perhaps do so in exchange for Gaddafi’s agreement to step down. But no one wants to admit that it was a mistake to refer Gaddafi’s case to the ICC in February, a few weeks before the Western military intervention.
There’s been no hurry, at least, to direct the ICC at Syria — even though Assad probably has now slaughtered more civilians than Gaddafi before the court was called in. Assad will need a place to go outside Syria if he gives up office peacefully — or an immunity deal. Leaving room for one or the other would be a way of learning from the Arab Spring’s mistakes.