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Doug Saunders

When justice stands in the way of a dictator's departure Add to ...

For more than 20 years it was possible to find Idi Amin in the supermarkets of Jeddah, the former Ugandan dictator and murderer of hundreds of thousands wandering the aisles of a Saudi Safeway and loading his shopping cart with frozen fish and yogurt cups.

That life of domestic banality looked to many like a gross injustice: Here was one of the greatest criminals of our age, responsible for plunging a once-thriving nation into misery, torture, systematic killing and mass expulsion, left to have the sort of natural death that had been denied his mutilated victims.

In normal human terms, it was an injustice. Reed Brody, the chief lawyer for Human Rights Watch, at the time described the formula: "If you kill one person, you go to jail; if you kill 20, you go to an institution for the insane; if you kill 20,000, you get political asylum." But this was not a normal justice situation. By putting one man beyond justice, it may have prevented a great injustice to many: Uganda was freed from Idi Amin. Hundreds of thousands more deaths, and a prolonged and desperate war, may have been prevented by providing him this escape into comfortable humility.

His flight had been facilitated by his old backer and ally Moammar Gadhafi, who today is himself at the centre of elaborate attempts to arrange a similar exile.

Whether Colonel Gadhafi and his sons are participating in these attempts is a matter of speculation, but leaders of the United States, Britain and other countries would prefer Libya's revolution ended the way Tunisia's did next door: with the departure of dictator Zine El Abidine Ben Ali to Jeddah, and a fairly bloodless transition to democracy.

Persuading Col. Gadhafi to flee Libya would save thousands of lives. It would end the conflict almost immediately, because there is no basis for support of the regime other than the man himself.

But there's a problem with ending the conflict this way: Justice stands in the way.

When the United Nations Security Council unanimously agreed to take action to stop Col. Gadhafi's killings by passing Resolution 1970 on Feb. 26, it added clauses that refer the Libyan government's crimes against humanity to the International Criminal Court in the Hague - and the court responded by declaring, with the backing of Canada and other countries, that they would investigate Col. Gadhafi and his sons and prepare prosecutions.

It was considered a historic moment, because the United States, which has not previously recognized the international court, backed its jurisdiction over Libya (which also doesn't recognize the court). War-crimes trials against sitting leaders are rare and difficult.

But this created a dilemma that has become tragically familiar in recent years: By applying the pressure of justice to a savage leader, the ICC may have perpetuated, rather than ended, his crimes: Col. Gadhafi and his sons and generals do not dare end their campaign of violence if it means spending years in a Dutch cell.

"I have heard people say that Resolution 1970 was a mistake because it gives Gadhafi no way out," international law scholar Malcolm Shaw told the Guardian this week. "It basically said to Gadhafi, 'You have to fight to the end.' "

We've seen this before. In 2008, it appeared that Robert Mugabe was ready to step down as President of Zimbabwe, after faring poorly in an election and facing international condemnation for his abuses. But his generals, terrified of facing a certain ICC indictment if they lost power, turned on him, and persuaded him to stay in office.

"The Old Man is staying," one of Mr. Mugabe's lieutenants told my colleague Stephanie Nolen, "because I'm not ending up in the Hague." And indeed he stayed.

This is an unfortunate pattern: Atrocities are committed, the ICC steps in and begins investigating, and prospects for a quick surrender or retirement disappear. This has happened in the Congo, in Sudan, and, most tragically, in Uganda, where an ICC prosecution provoked the horrific Lord's Resistance Army to abandon its ceasefire and continue killing - and the government to launch a bloody campaign of reprisals.

As it approaches its 10th anniversary next year, the ICC has a few things to celebrate - it has brought some heads of state to justice. But it may have caused more injustices than it has prevented, and tragically, its successes have been the root cause of the ICC's role in prolonging dictatorial rule.

The solution for Col. Gadhafi, short of waiting until he dies, may well involve the dark paradox of countries most supportive of the ICC agreeing to smuggle him out to a country that does not honour or recognize its jurisdiction. On Wednesday, in a cosmic twist of fate, Uganda offered itself up.

Editor's note: An earlier version of this story online and in the April 2 newspaper contained incorrect information. Charles Taylor, the former president of Liberia, is being tried in the Special Court for Sierra Leone. The International Criminal Court does not have the power to pass a sentence of capital punishment.

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Follow on Twitter: @dougsaunders

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