Jeb's post yesterday on the anti-government demonstrations in Tunisia got me musing on how incredibly difficult it remains to punish leaders for crimes they committed while in office. As an aside, I wonder whether the Saudis' penchant for harboring overthrown dictators (in connection with Adam Hochschild's op-ed on the assassination of Patrice Lumumba today, it's worth remembering that Joseph Mobutu died in Anyone living in the United States for the past decade or so, though, ought to have some inkling as to why. State crimes - things like denials of human rights, unauthorized surveillance, indefinite detention without due process, torture, rendition and assassination - require the initiative of a few, but the complicity of many. Prosecuting those "at the top" who initiated criminal actions amounts to the indictment of more than just a few leaders. It amounts to the indictment of the entire regime they headed up. To the extent that people complicit in the old regime remain powerful, they will have both the incentive and the capability to quash legal reprisal. Only in the rare cases of true revolutions, wherein the entirety of a state's political class is ejected from power, will there be space opened up for legal redress of grievances. And even then, once a society has reached the point of complete political bouleversement, there is an understandable tendency to handle the old regime with show trials and firing squads, not credible legal inquiry.
True revolutions are rare in any case. What most states get most of the time is more akin to a managed coup, wherein certain elements of the old political system coexist uneasily with insurgent upstarts, working out a balance of power that, with any luck, is an improvement on the previous regime, but not a complete reversal of it. That's not the kind of environment conducive to prosecuting ex-leaders who, while out of power, remain influential if only because so many of the people complicit in their earlier rule remain in place.
I recently picked up John Nichols' The Genius of Impeachment, a short treatise arguing for less reticence in impeaching sitting executives. I don't find his argument especially convincing - removing a sitting president might be satisfying and just, but it won't affect a meaningful transfer of power - but I am left wondering whether the Obama Administration would have been quite as willing to institutionalize so many Bush-era executive abuses if there was a genuine legal/political downside of doing so. Of course, any impeachment proceedings against Bush would have damaged the electoral and political fortunes of his Republican supporters in Congress, and the converse is now true for Congressional Democrats. Part of this simply reflects the fact that a checks-and-balances system is a poor means of placing liberal constraints on state behavior. Much of it, though, reflects the broader complicity of American political leaders in actions that violate the U.S. Constitution and the principles of governance it sets out.
Anyway, for the sake of the Tunisian people, I hope Ben Ali is brought to legal account. Precedent, though, is not on their side.
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*Correction: I've rather embarrassingly mixed up my dictators here. Mobutu died in Morocco. Idi Amin died in Saudi Arabia. The point stands.
Any movement to make criminal prosecution the norm might make these leaders more likely to entrench themselves politically and militarily. With the threat of criminal charges hanging over their heads, most heads of state will be reluctant to leave office under ANY circumstances. Hence, Mugabe's unwillingness to relinquish power is perhaps tied to his fear, voiced by powers abroad, that he be tried for his massacres in Matabeleland in the early 1980s. To pursue justice, even if the heavens shall fall, is fine for prophets but imprudent for statesmen.
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