What will most likely happen to Saddam Hussein after a successful regime change directed by the United States? President George W Bush’s administration’s inner circle refers regularly to Saddam’s exile and amnesty for the Iraqi leadership as an alternative to war. In order to avoid war, Turkey also explored the idea of amnesty for the top echelon of Iraqi leaders.
Is it a realistic option, taking into account precedents in other parts of the world?
Coincidentally, some weeks ago media reports suggested a similar scenario ostensibly being considered for President Robert Mugabe of Zimbabwe.
Does it suggest that the international community is in the process of developing a consensus about indemnifying state leaders who are internationally considered to be personae non gratae in exchange for a peaceful regime change in their countries? Those who refuse cooperation in this respect will then be treated as fugitives of Western military forces and international law.
The Bush administration’s most recent appetite for regime change is arguably an outcome of its actions in Afghanistan last year, when it removed the Taliban from power. As a result regime change became a central tenet of the “Bush doctrine”. Last year the administration also used it in relation to the Palestinian leadership.
The significance of amnesty and exile can only be determined by comparing it with the conventional treatment meted out against state leaders accused of various transgressions or crimes of a political or human rights nature.
The most tangible examples are of the two United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia. Their mandates include mainly gross human rights violations, crimes against humanity, war crimes and genocide. Another well-known example is the Spanish judicial action against the former Chilean autocrat, General Augusto Pinochet.
After the fall of the Berlin Wall a number of former East German leaders and security officials were brought to trial in Germany, including the leader Erich Honecker. Numerous other examples can be cited, including impending action against the former Chad ruler, Hissène Habré, who is living in exile in Senegal.
The other side of the coin is the possibility of indemnifying leaders in the form of amnesty. In Argentina, after the military junta, a general amnesty was granted mainly to the military. In Chile a similar amnesty was granted to Pinochet and his ruling clique. South Africa is quite exceptional in the sense that amnesty has been granted by the Truth and Reconciliation Commission to individual applicants.
General amnesty is, however, now under consideration to incorporate the Inkatha Freedom Party, the former military as well as African National Congress political leaders.
The controversy regarding amnesty is not only that it might entrench impunity and be experienced as undermining judicial justice. It also raises the question of extraterritorial applicability and the related matter of diplomatic and other forms of immunity, preventing prosecution of incumbent leaders.
Pinochet is a case in point where the amnesty applied in Chile but was disregarded outside its territorial borders. (The former South African Defence Force received legal advice to refrain from applying for amnesty for the same reason.) It is premised on the increasingly popular principle in international law of “universal jurisdiction”.
Courts in countries applying this principle can judge any person who allegedly committed human rights and war crimes anywhere in the world. Belgian courts have become known in this respect. The new International Criminal Court (ICC) will indeed be a permanent manifestation of this tendency.
The latest suggestion about amnesty in the cases of Iraqi and Zimbabwean leaders is unique in the sense that, should amnesty be granted, the understanding is that this will be respected by the international community.
By implication international law will then have to reconcile universal jurisdiction with “international” amnesty. In other words, the ICC’s jurisdiction will be limited by political and diplomatic interventions, determined by national and international self-interests and considerations of diplomacy and foreign policy.
In this respect it appears to be the US view that it is willing to forgive Saddam for his sins, should he peacefully accept exile. Should he refuse such a regime change, the US will demand or enforce judicial retribution if he manages to survive a war, thereby following in the footsteps of Yugoslav Serb leader Slobodan Milosevic.
The closest comparison to this approach is plea-bargaining in domestic courts. Should an accused be willing to plea his or her guilt, a more lenient sentence can be negotiated with the prosecutors. But a recalcitrant accused will face the full brunt of the justice system. For Saddam, exile is understood to be lenient punishment.
Mugabe and Saddam do not exactly share the same predicament. Regime change in Zimbabwe is ostensibly envisaged differently from regime change in Baghdad. Mugabe is certainly aware of the universal jurisdiction principle and of the dangers of a Chiluba-style domestic prosecution.
In order to address such concerns, already before the presidential election in 2001, talks were apparently held with the view to securing him amnesty should he lose the election.
Former Russian leader Boris Yeltsin negotiated a similar indemnity deal for himself and his family as part of the transition to President Vladimir Putin. Former Zambian president Frederick Chiluba, on the other hand, failed to negotiate a similar face-saving exit for himself and now faces prosecution.
The examples of Chiluba and the former Ethiopian despot Mengistu Haile Meriam (protected by Mugabe as a fugitive in Zimbabwe) are powerful incentives for the Zanu-PF leadership to reach an agreement about a graceful exit for Mugabe.
Such an exit would not necessarily amount to a regime change as understood by the “Bush doctrine” in Afghanistan and Iraq. It can amount to a leadership change but not government change, in the same tradition as the Yeltsin/Putin change or the PW Botha/FW de Klerk change in 1989.
Iraqi and Zimbabwean changes will depend on guarantees that their leaders’ indemnity will be internationally binding and respected. That in itself will be a new international trend in view of the fact that international tribunals and special courts are more the order of the day.
It shows again that national political considerations are usually more powerful than international sets of morality or judicial principles.
In one scenario Saddam can go scot-free and in another he might serve a life sentence. The determining factor for his fate is not what he is guilty of, or what he did in the past, but whether the role he played in his removal from office warrants his arrest and international (Western) retribution, or undisturbed retirement in a host country.
Irrespective of whether or not regime changes will occur in the next months in Iraq or Zimbabwe, these scenarios for both leaders will remain largely unaltered. In fact, we now start to see more clearly the significance of Pinochet and Milosevic in the unfolding international dispensation of the late 1990s and early 2000s.
Dr Dirk Kotze is a senior lecturer in the political sciences department at the University of South Africa