Human beings possess a sense of justice that cuts across ethnic, cultural and linguistic lines. But how realistic is it to rely on international legal and judicial procedures to resolve violent disputes that lay beyond the reach of national law?
Should, for example, the leaders of Libya, Syria, Yemen and other countries where open violence against citizens has erupted be subject to trial and punishment the International Criminal Court?
International human-rights activists are arguing that such leaders should be held accountable under international law. These leaders, it is suggested, should be presented to the U.N. Security Council to assess the extent and severity of any crimes, and, if necessary, refer the case to the ICC for trial.
The ICC, which is based in the Hague and has jurisdiction in over 100 countries, the past decade has pursued a number of cases against ousted leaders. This month, the Ivory Coast has announced that Laurent Gbagbo, its former dictator, will be handed over to the ICC. Egyptian officials have indicated that their country will be signing on to ICC juridiction, thereby laying the groundwork for a future trial of toppled President Hosni Mubrak.
But can judicial proceedings effectively resolve the internal disputes in the Middle East? Unfortunately, attempts at political, diplomatic and military solutions have yet to show meaningful progress towards long-term stability.
The U.S. and other Western countries have struggled to maintain two clearly contradictory policies in the region. In Libya, the West has rallied around the cause of military intervention, together with the full-scale use of United Nations and NATO stage management in order to provide a "legal" basis for their activities. Now, in the face of a growing stalemate on the ground in Libya, an active campaign to assassinate Moammar Gadhafi is being openly discussed by Western leaders, including senior American politicians.
With Syria, the collective silence has been almost deafening. The tactics of Syrian President Bashar Assad and Col. Gaddafi in Libya are quite similar. Although the dial has been turned up slightly on the diplomatic criticism toward the Syrian leader, the U.S. State Department still appears to be holding closely to the Hillary Clinton's earlier statements of support for the Assad regime.
Meanwhile, in Yemen, attempts to broker an "Egyptian solution" that would see President Ali Abdullah Saleh leave office within a month have been stalled. As Saleh has stated, if he hands over power, without there being an election or some other legal transfer of power, to whom should that power be officially handed over?
In the euphoria that surrounds the Arab Spring and its growing momentum, attention must be paid both to the legality of state force and to any transitions of power. Failing to respect the lawfulness of what is being done, either by domestic and international parties, will simply create more instability.
However, questions about the role that law can play in times of internal turmoil and international outrage are very complicated. If a departing tyrant is granted amnesty, for example, can other countries prosecute him?
As a result, what choices does a despot face when contemplating the final act of his reign? Should he hand over power to an assembled mob? Should he dig in and fight, regardless of casualties, firm in the knowledge that only by staying in power can he hope to avoid a life sentence from the ICC for his misdeeds?
International law exists. It is created by treaties and by custom, and can slowly accumulate over many years. The more important question is whether at any given time it exists to the extent and with the effectiveness that its most ardent champions wish that it did.
In order to see lasting peace and prosperity in the region, parties must be realistic about the tools they have at hand and their effectiveness. To the extent that judicial solutions, whether through the ICC or ad hoc tribunals, can assist in resolving the current disputes, they should be considered. But the practical limitations on their effectiveness must be recognized. First there must be peace. Only then can there be justice.
The promise of international war-crimes trials is no substitute for strong political and moral leadership today. Claiming otherwise would be a cowardly abdication of real responsibility in favor of a thin facade of legal pleasantries.