Accountability for Human Rights Abuses in the Fictional Land of Elbonia
By Maral Cavner
Human societies are built upon the ideal that when one commits a wrongdoing the person should be held accountable for their actions. While I believe that all of the major goals with which to consider accountability are merited in their own right, I do believe that two goals in particular, to reconcile society and to deter all future abuses, reign supreme over all others. Yes, it would be ideal to have some aspect of each goal when holding someone accountable for his or her actions, but unfortunately this is not always possible as the world is not always an ideal place. Further, while it is a completely justifiable to punish someone after their wrongdoing, it is my belief that when one is forced to choose, it is better to take a preventative approach, instead of solely focusing on getting even with the perpetrator, in a retroactively framed approach. It is with the focus to reconcile the harmed society of Elbonia and to deter all future abuses in the country that I suggest the four following strategies for holding hypothetical President Slobodan Assad and his associates within the government accountable for their blatant and outrageous human rights abuses: first, through Elbonia’s own legal system, second, through the use of universal jurisdiction when Assad travels abroad for medical care, third, through a presidential pardon in exchange for Assad’s voluntary exile or fourth, through a truth commission.
I believe that the best strategy for holding Assad accountable is through Elbonia’s own domestic legal system. It is, after all, the people of Elbonia who have suffered under his decade long regime and consequently, it should be the people of Elbonia who hold him accountable. Therefore, the institution that would hold Assad accountable would be the judicial branch of government in a new and emerging democracy in Elbonia. We know that there “is hope that a new democratic government will come to power” in Elbonia (Davis Analytical). Where does a democratic government garner its power? The power of a democratic government comes from the citizens of the country who outline their wishes for the rule of law in their country in a founding document, namely a constitution. Given that the West has promised assistance to Elbonia to help establish a democratic institution, it is reasonable to assume that the West will model their suggestions for Elbonia’s democratic government after their own democracies. As an example, the United States would likely be one of the assistance providing countries and the Constitution of the United States would be an equally likely model for Elbonia. The Constitution of the United States is the document from which the power for each branch of government, including the judicial branch, arises. Therefore, it would be from the Constitution of Elbonia that the judicial branch of government would be given its power to act on the human rights abuses committed by Assad. Additionally, the judicial branch, and the actual court that would do the prosecuting, would have jurisdiction over Assad’s crimes due to the fact that the crimes occurred both to the country’s citizens and in Elbonia. The specific types of accountability that the courts would deliver upon Assad should be consistent with the government’s new legal system. While it is impossible to exactly predict, one could assume, given the influence of the West on the democratization of the government, that the range of punishments for Assad and his associates would all center on their prosecution as criminals: time in prison, restitution or even the death penalty, if it is legal in Elbonia.
It is important to realize that the people who have been victimized are the majority in Elbonia and from this it is not unreasonable to assume that there would be a large public outcry for justice and accountability. This coupled with the fact that the outgoing regime members, in the minority, will become weaker without the government to hide behind and the incoming members of government will be strongly supported, as they would have to be in order to be elected in a democratic process, lends itself to the success of this strategy. From Elin Skaar’s research on the likelihood of transitional countries to decide on trials or truth commissions for the accountability of previous regime members, we know that Elbonia would be likely to hold trials for Assad and his associates (Skaar).
Once the decision for domestic legal accountability has been made, the likelihood that this strategy would work is largely an issue of timing. The longer and more thorough of a process it takes to form the judicial branch, a branch that it autonomous and effective, the more likely the court is to be perceived as legitimate and of real authority and power. While the court will grow in legitimacy the longer it takes to form it, the risk that Assad might not live to be held accountable may also grow because Assad is already in poor health. This fact combined with the natural stress that a trial of such magnitude would bring to any person, increases the chance that Assad might die before or during a trial. The likelihood of success for holding those who ordered the human rights violations accountable would be increased if cases with the strongest evidence against the accused are handled first thus establishing a precedent for future cases and judgments. If this is the way that the cases are handled this ordering would add strength to the chance that Assad would be alive long enough to be held accountable due to the fact that he is the head of this tyrannical government and there is likely ample evidence to be used against him.
A judicial system that can prosecute Assad can also be used to prosecute others who commit wrongdoings in the future. Given that everyone would like some assurance that their rights will be protected, I believe that the people of Elbonia would be in favor of the formation of an autonomous judicial system within their country. With the support of the citizens of Elbonia, who are well educated and thus are likely to realize the importance of such a system, the judicial branch of government’s chances of success would be increased significantly. Nonetheless, establishing a credible domestic system of governance is a very difficult thing to do, as evidenced by the West’s efforts in Iraq and Afghanistan. Additionally it would be expensive. However, such a system is vital to every country and therefore worth the time and effort to put in place.
The central challenge in order for this strategy to work would be assuring that the decisions of the court are enforced. The executive branch, through law enforcement, would carry out the decision of the court. Therefore, the importance of a democratic election process prior to Assad’s trial cannot be overstated and must occur before any other progress can be made to last. A democratic election would likely remove Assad and his associates from power given that they are in the minority (population count wise). After the election of new leadership the writing of Constitution, a Bill of Rights, and any other necessary document for clear order and rule of the country would need to take place. From these documents, a system of government must be built that can actually prosecute Assad and his associates. The judicial branch of government must be given absolute judicial autonomy in order to assure that it is not pressured by those who hold political power. Human rights organizations are often incredibly effective instruments for accountability, especially during periods of transition, and thus should be encouraged to oversee the process in order to assure that needed reform is occurring in terms of standard setting, implementation, adjudication, and enforcement. Once the branch is autonomous (independent of any political influence), effective (able to assure that those in charge of enforcing the court’s decision actually do so), and equipped with qualified personnel (lawyers, judges, etc.) then it will be ready to hold Assad’s regime accountable for its actions.
In the majority of cases when there is a transition of power there will be people who try to grab power for selfish and undemocratic reasons. The risk that accompanies the process of forming a new system of governance is that a coup could arise or even a civil war. The tradeoffs to employing a domestic legal system of accountability stand in contrast most clearly to a system of international legal accountability. While holding Assad accountable in an Elbonian court would provide the citizens of the country a sense of ownership over the trial, it may also, as a newly formed court, be considered less legitimate than an international court’s actions (Davis Accountability). The domestic court, despite efforts to the contrary would also be much more susceptible to domestic political pressure (Davis Accountability). Further, oftentimes there are higher international standards than domestic ones to be held accountable to and so by confining the trial to an Elbonian court Assad’s regime members might have an easier path ahead (Davis Accountability). Additionally, these types of trials are rarely quick and could be quite monetarily costly to Elbonia. However, because economic prospects for Elbonia are “bright” through Unobtainium, I do not foresee monetary limitations becoming an issue (Davis Analytical).
We know that Assad is in poor health and has made “a number of trips abroad to seek medical care” (Davis Analytical). It is reasonable to assume that as Assad grows older his health problems will increase and the need for and the number of trips abroad will increase. From Assad’s travels abroad comes a unique opportunity to hold him accountable and thus, my second strategy for holding Assad accountable is through the use of universal jurisdiction. While we do not know specifically what countries Assad travels to, we can assume based on the history and reputation of the visited countries, whether or not they would be likely to use universal jurisdiction to help Assad be held accountable. The United States, for example, is a country that is not very likely to use this type of jurisdiction, especially when it concerns a country from which the United States gets valuable resources from, such as oil. The risks of damaging such a relationship are oftentimes far too great, according to the government. The higher the quantity of Unobtainium from Elbonia used in the United States, the lower the chances that the United States (along with other countries with similar attitudes and needs) would employ universal jurisdiction. On the other hand, based on its history that is laden with the use of universal jurisdiction, Belgium is a country likely to use this form of accountability with Assad (Belguim). Therefore, we must look for a country that Assad visits for medical care and has a precedent to indicate that it will use universal jurisdiction to capture him. After Assad’s arrest, he would then be referred to the International Criminal Court (ICC). At the ICC Assad would be then subject to international accountability and criminal prosecution.
The likelihood that this strategy for holding Assad accountable largely depends on what countries Assad visits for medical care and whether or not the ICC can then prosecute him. Because we do not know what countries Assad visits, we could assume that he visits countries that would be inclined to use universal jurisdiction over him where the chances for success are great or we could assume that Assad is intelligent enough to not travel to these countries where the chances for success are relatively nonexistent. Further, it is likely that he has a supply of money available to him that he could use to pay medical professionals to come to him, as opposed to him going to them, thus eliminating his need to travel and the possibility to use universal jurisdiction. Thus, the first challenge would be to convince a country, with the necessary medical technology, to use universal jurisdiction over Assad while still tempting Assad into visiting it.
An additional significant factor and challenge that would weigh heavily on the success of this strategy is whether or not the office of the prosecutor’s attention can be focused on Assad. Given the extreme length of most cases that take place at the ICC, the prosecutor and his deputy prosecutors are very busy individuals. However, given the background we have been given on the extensive nature of Assad’s crimes, I believe that his case would be one that the office of the prosecutor would be willing to undertake and that this challenge could easily be overcome. If the ICC accepts the case the final challenge and determinant of success would be to assure that the necessary evidence to convict Assad could be produced. This challenge could be overcome with the help of non-governmental organizations (NGO) that could go into Elbonia and help gather the necessary (and accurate) information. The likelihood of any NGO’s success depends on how hidden Assad and his associates left the trails of their crimes, but given the large number, it is unlikely that each one is hidden well enough for them to avoid conviction.
The tradeoffs/risks for holding Assad accountable at the ICC through universal jurisdiction are threefold: first that a western sense of justice would be imposed upon a non-western country, Elbonia (Davis Accountability). Second, given the reality of time, only the top leaders in Assad’s regime would be tried, allowing other criminals to escape punishment or be subjected to less harsh standards at the domestic level (Davis Accountability). Third, the people of Elbonia would be divorced from holding Assad accountable directly to them, the victims (Davis Accountability). Additionally, there would be significantly less coverage of the trial accessible to Elbonians if he were tried at the international level, than if he was tried in Elbonia (Davis Accountability).
Due to the United States’ influence on the democratization process in Elbonia, it is likely that the new democratically elected president will have the power to pardon, as the President does in the United States. Therefore a third strategy for holding Assad and his top associates accountable for their human rights abuses is to offer a presidential pardon to each of them in exchange for their voluntary exile from Elbonia. The power to pardon comes from the constitution of the country and would be carried out by the President of Elbonia. Those who would be pardoned and exiled would be the officials who either ordered the abuses or ordered and carried out such acts themselves, but not those who were forced to commit crimes by their superiors. Given that the goal of accountability does not have to be centered around punishment while this action would certainly be controversial, it would also go a long way towards stabilization of the country and prevent future human rights abuses in Elbonia with Assad and his associates out of the country for good. Accompanying such an act would need to be the formation of a watchdog committee of special prosecutors to assure that future executive abuses are cut off well before they become decade long problems. When the president proposes a pardon and exile for Assad and his associates he should also mandate that the autonomous judicial branch be responsible for overseeing the formation of this committee. Due to the fact that the country is in a transitional state, it is incredibly important to rid it of those who would bring back the human rights abuses. If Assad and his associates refuse the deal, then they should be criminally prosecuted either at the domestic or international level, dependent upon the readiness of the judiciary in Elbonia.
The central challenge to the strategy to of exile for Assad and his associates is to get them to agree. To get Assad to agree it is important to allow him only criminal prosecution or exile. Assad must be ousted from power in a democratic election. After the election a constitution for Elbonia must be created and an elected president must be given the power to pardon and create a special committee to keep the executive branch’s actions in check. Ideally, the judicial branch in Elbonia would be legitimate quickly and able to handle Assad’s case if he refuses exile, but if not the ICC must take his case. Assad must believe that it is a life or death decision for him. While I am sure that Assad enjoys his power, most people are not suicidal.
The strategy of a pardon and exile is not without its potential tradeoffs. Most notably, serious criminals would not be ‘punished’ for their crimes. However, I believe that losing one’s power after embracing it to extreme excess would be a damaging thing in and of itself to Assad and his associates and could be thought of as a punishment for all of them. The potential backlash against the president of Elbonia for issuing such a pardon could be quite severe. It would be very important for the new president to outline that the most important responsibility of the new government is for the future of Elbonia and a swift pardon and exile could assure the country to be rid of its largest threat as quickly as possible.
A fourth strategy for holding Assad and his associates accountable for their human rights abuses is through the creation of a truth and reconciliation commission. In some ways this strategy might be most suitable due to the fact it would confront the fact that there have been abuses by both majority and minority parties in Elbonia. The newly democratically elected government of Elbonia would be charged with the creation of the ‘Truth and Reconciliation Committee of Elbonia’ whose mandate would be to investigate the human rights abuses that have occurred, establish fact from fiction through truth telling, and to come together to form strategies for the reconciliation of Elbonian society.
The chief goal of this form of accountability is to reconcile Elbonia’s society and to move forward with as much of a blank slate as possible. However, in order for this to happen there must be a democratic election in Elbonia. Members of the government should then form a committee to identify citizens of Elbonia who are honest, honorable, will put aside differences for their country, and are respected by both sides of the fight in the country. The likelihood that the ‘Truth and Reconciliation Committee of Elbonia’ will succeed in its goal is largely dependent on finding people with these characteristics. This is not to say that it will be easy to find such persons, but every possible effort should be made to do so. Another large challenge would be to assure that the information brought before the committee is truthful. In order to assure this, the use of impartial non-governmental organizations for the collection of information would be key.
A tradeoff to this strategy is that neither side will be punished for their human rights abuses through criminal prosecution something that could make both parties very upset. However, in class we learned from the findings of Eric Stover and Harvey Weinstein there is not a direct link between one’s desire for a trial (criminal prosecution) and one’s exposure to trauma (Davis – Harvey). This finding lends itself to the likelihood of success and satisfaction of the Elbonian people with this strategy. The main risk with this strategy is that the reconciliation process simply will not work, despite the best efforts of the Committee to assure otherwise. However, with the passing of time and the coming of each new generation, hopefully tensions between each side will subside more and more.
It is clear that there can be no one perfect strategy for holding Assad and his associates accountable. Each strategy, be it through the domestic legal system of Elbonia, universal jurisdiction, exile and immunity or the creation of a truth and reconciliation commission, comes with its own potentially significant challenges and risks. However, given the tremendous toll that Assad has taken on the country of Elbonia, a decision that rids him of his power and places it within the hands of the Elbonian people is an absolutely necessary one to make. All that can be done when presented with a problem with no perfect solution is to gather the most brilliant thinkers of the time, make a decision, and do your best to counteract its inevitable side effects. Forward progress, be it large or small, is progress nonetheless for the benefit of the people.
“Belgium: Universal Jurisdiction Law Repealed.” Human Rights Watch-News. Human Rights Watch, 2 Aug. 2003. Web. 24 Apr. 2012. <http://www.hrw.org/news/2003/08/01/belgium-universal-jurisdiction-law-repealed>.
Davis, David. Analytical Essay Topic #2. Apr. 2012. Essay Prompt. Emory University, Atlanta, Georgia.
Davis, David. “Global Human Rights – Overview of Accountability.” Class Powerpoint Lecture. Emory University, Atlanta, Georgia. 19 Mar. 2012. Lecture.
Davis, David, Harvey Weinstein, and Eric Stover. “Global Human Rights – Domestic Accountability: Truth versus Justice.” Class Powerpoint Lecture. Emory University, Atlanta, Georgia. 26 Mar. 2012. Lecture.
Skaar, Elin. “Truth Commissions, Trials – Or Nothing? Policy Options in Democratic Transitions.” Third World Quarterly 20.6 (1999): 1109-128. 1999. Web. 24 Apr. 2012.