Radovan Karadzic and Omar Al-Bashir are part of a recent trend of state leaders being prosecuted, serving jail time, or facing credible criminal investigations by domestic, foreign, and international courts. This Commentary, prepared by Jonathan Drimmer, a partner at Steptoe & Johnson, discusses this trend and demonstrates that despite the concerns regarding the effects of these proceedings, the development must be seen as positive. He writes:
Traditionally, even the most reviled state leaders have enjoyed lifetime immunity (immunity ratione materiae) in domestic and foreign courts for their official acts. They also have enjoyed a personal immunity that lasts during their tenure for all unofficial acts (immunity ratione personae), such as looting state coffers or murdering political rivals. While that personal immunity is temporary, protecting the leader only while he remains in office but not after he steps down, scores of infamous heads of state, such as Idi Amin of Uganda, Jean-Claude Baby Doc Duvalier of Haiti, or Romeo Lucas Garcia of Guatemala, have retired to friendly countries that afforded them protection from extradition. Many others have remained in-country, benefiting from a historical lack of will to try former chiefs. The end result has been that for centuries, brutal human rights abusing presidents, corrupt kleptomaniacal prime ministers, and serial miscreant dictators have escaped justice to live in cozy retirement, often with a wealth dishonestly accumulated while in office.
The past 25 years have brought a worldwide change of attitude. While official immunity still formally exists, the statutes of the ICC [International Criminal Court] and the other international tribunals established to prosecute offenses arising from conflicts in the former Yugoslavia, Rwanda, Sierra Leone and Cambodia all expressly declare that an official capacity or rank by itself is no defense to prosecution. The British House of Lords echoed that principle in 1999, ruling that Augusto Pinochet, the former dictator of Chile, could be prosecuted for torture by domestic courts in Spain, holding that some crimes are so reviled they can never be considered a part of a leaders official duties. The Pinochet precedent has been followed elsewhere, and international pressure has led to the arrest and extradition of former leaders who once could have counted on a life of luxury after their time in office. Still other countries have become emboldened by the worldwide trend, and undertaken investigations and prosecutions of their former leaders that, decades ago, would have been unthinkable.
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Though the trend toward ending impunity for current and former leaders is generally applauded, there are vocal critics. Some characterize these cases as political show trials, calling them the product of victors justice where guilt is a foregone conclusion and the proceedings are defined by their shortcomings. These critics are exemplified by author John Laughland, who argues that [p]olitical trials are the continuation of war by other means. While Laughland’s further contention that in over three hundred years of trials of former heads of state there has never been a single acquittal is flatly wrong -- the acquittals Hussain Ershad of Bangladesh (assassination), Domitien Ndayizeye of Burundi (coup plot), Hastings Banda of Malawi (graft), and Ramush Haradinaj of Kosovo (war crimes) are obvious recent counter-examples -- and fails to acknowledge the many state leader investigations that have been dropped before trial, his point in questioning the fairness and motives of many cases finds ample support. The fiasco that was Saddam Husseins trial is but one recent illustration; 4 defense lawyers were killed or fled the country, political pressures on the court were undisguised and caused the chief judge to resign, the court inexplicably precluded defense witnesses from testifying, multiple witnesses complained of being threatened or bribed, the judges seemed unfamiliar with the law, the appeals court affirmed the conviction mere days after receiving the lengthy and complex legal briefs, and other such failures turned the process into a mechanism designed to convict and execute the former leader.
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