On Criminalizing Dictatorship
by Adrian Tawfik
June 3, 2012
Thousands of Egyptian protesters have taken to the streets in anger at the acquittals of senior members of Hosni Mubarak’s regime in the trial that has seen Mubarak and one other ally given life sentences for complicity in the murders of democracy protesters last year. The Egyptians are protesting out of a feeling of disbelief that in the last few months several senior members of the Mubarak dictatorship’s security forces, guilty of years of overseeing a repressive and violent system, were found innocent. For the sake of these democratic protesters and many others like them, there needs to be a better way to criminalize the activities of dictatorship to ensure successful prosecution. It is time for an international law that makes it a crime to be a dictator or to hold high positions in dictatorships.
More often than not, it is not a simple matter to find a single crime or series of crimes committed by a dictatorship where evidence allows a quick link between leadership and crime. Prosecutors at the Nuremberg trials after World War II found ample evidence in post-war Europe of Hitler’s extensive network of concentration and extermination camps where millions perished. The convictions at Nuremberg included ‘war crimes’ and ‘crimes against humanity’ on top of convictions for military aggression. Yet even in those monumental trials, considered successful by most observers, three senior Nazis were acquitted.
The recent trial of Liberia’s ruthless and bellicose dictator Charles Taylor has been welcomed by most of his victims. He was found guilty this April of all eleven charges including terror, murder and rape by the Special Court set up by Sierra Leone and the United Nations. There is hope that the trial and convictions will ensure that African warlords no longer enjoy impunity from international law. However, Taylor holds the distinction of being the first head of state convicted by an international court of war crimes since Nuremberg.
While the Nuremberg trials and the conviction of Charles Taylor may seem like successes, the large majority of dictatorships avoid such an end. Many members of the Khmer Rouge in Cambodia have avoided responsibility for their crimes and Omar al-Bashir who still sits as President of Sudan despite an International Criminal Court warrant for his arrest. The list of atrocities that the international community has already criminalized, from genocide to use of child soldiers, is largely insufficient for prosecution of the diverse range of criminality related to dictatorship.
However, in 2012, there may be hope for a better future. The rise of a more democratic world has revolutionized the possibilities for reform. In Europe, South America and Africa, regional blocs have been encouraging the spread of local democracies. East Asia, India, Indonesia and parts of Africa have tipped the democratic balance of the world to a point where action could be taken collectively by a community of democracies. The Arab Spring, the Russian protests, and the rising Chinese calls for democracy have restructured world geopolitics to a place where the democratic world must use its growing influence to enforce the holding of elections as a right protected by law.
In legal and diplomatic circles, there is growing action to criminalizing dictatorship itself, not least of which is the work of Patrick Glen of Adjunct Professor of Law at Georgetown University and Attorney in the Civil Division of the US Department of Justice. He wrote a paper in 2009 titled, “Towards the Criminalization of Dictatorship: A Draft Proposal for an International Convention on Dictatorship” and the introduction sheds some light on the feasibility of the idea:
The international community has taken note of and, to some extent, addressed the excesses and human rights violations of dictators and totalitarian governments over the past half-century. To this end, conventions addressing civil and political rights have become an integral part of the law of international human rights. Although these conventions and covenants address the existence of such rights, and in some cases offer avenues of inquiry to ensure that they are realized, in the wake of wide-spread and systematic violations in Africa, Asia, the Middle East and Europe scholars and diplomats alike are beginning to call for a solution that will address the root of such violations: the form of government that perpetrates them. Calls to criminalize dictatorship have begun in academia as well as in the envoys to the United Nations.
This paper represents the first prolonged treatment of the issue within the academy. Addressing first the possibility of criminalizing dictatorship under prevailing definitions of international crime, I reach the conclusion that such an attempt would be inefficacious and less definitive than other available action. Having reached this conclusion, the remainder of the paper focuses on the need for an international convention dealing with this subject matter and draft proposals for the necessary substantive articles. After each proposal potential United States objections to the specific article are addressed and, in most cases, discounted as unfounded. Although this paper represents only the first step down the road to international action, its success may be found in establishing a foundation on which further debate can build.
Although the eventual success of proposals to criminalize dictatorship are clouded by the international influence of governments in Russia, Iran and China there is a future for the idea if enough democratic people take up the cause. Outside of China, less than fifteen percent of the world’s population lives under dictatorship. If there is to be progress on ridding the world of this terrible vice, we should look to the new generation of youth that have swept the headlines away from governments across the world. It is the youth, the same who protest today from across Egypt’s political spectrum, who are united in seeking an end to dictatorship and the beginning of accountability for those who stood against democracy. Polio, an acute, viral, infectious disease that plagued humanity since prehistory, is this very year on the edge of being eradicated from the last few countries affected. The fate of dictatorship should surely be the same.