Max Boot’s Curious Understanding of the Taylor Trial

by Kevin Jon Heller

In a post today at Commentary, Boot argues that Taylor’s arrest after going into exile makes it more likely that Gaddafi will fight to the death instead of negotiating a gracious exit from power:

Once upon a time, an autocrat could step down and live out his days securely in the south of France or some other plush locale. That option still exists for some; for instance Tunisia’s deposed strongman, Ben Ali, is now in Saudi Arabia. Maybe he’s even taken over Idi Amin’s old villa.

But Qaddafi is a special case because he has committed war crimes such as the bombing of Pan Am flight 103. He knows that if he leaves power he could wind up in the dock at the International Criminal Court.

The ability of the international coalition or the Libyan opposition to make a deal for his abdication has been complicated by the Charles Taylor precedent. Taylor was the former president of Liberia who left office in 2003 as part of an agreement that allowed him to escape into exile in Nigeria. But Interpol promptly issued an arrest warrant for him and in 2006 Nigeria handed him over to the UN’s Special Court for Sierre Leone. Eventually he wound up in the custody of the International Criminal Court in the Hague where his trial continues to drag on.

I have generally been supportive of the ICC as a tool for holding war criminals to account but incidents such as this are clearly an example of proceduralism run amok: in return for getting Taylor into court, we are making it more difficult to depose other dictators. Qaddafi has every incentive to fight to the death and take a lot of people down with him.

There is, however, a fatal flaw in Boot’s argument: Taylor was indicted by the SCSL before he stepped down, not after.  David Crane filed the indictment on 3 March 2003; the Trial Chamber confirmed the charges on March 7; and Crane unsealed the indictment on June 4, while Taylor was attending peace talks in Ghana.  Taylor then stepped down and went into exile on August 11.

Taylor stepped down, then, even though he knew that he was facing international prosecution.  The lesson of the Taylor prosecution is thus precisely the opposite of what Boot argues: namely, that domestic considerations play a much more important role in an autocrat’s decision to give up power than international ones.  If an autocrat enjoys domestic support, he will hold onto power as long as he can; if he loses that support, he will go into exile (or be removed from power) regardless of whether he faces eventual prosecution before an international court.  That was true for Taylor, and it remains true for Bashir.  There is no reason to think that Gaddafi’s calculus will be any different.

http://opiniojuris.org/2011/03/23/max-boots-curious-understanding-of-the-taylor-trial/

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