Lessons from past arrests of powerful political and military leaders
As the world watches scenes and accounts of mounting atrocities in Ukraine following Russia’s invasion on Feb. 24, many world leaders are calling for Vladimir Putin to be charged with the crime of aggression for planning, preparing, initiating, or executing an illegal war. Professor Noah Weisbord, a leading authority on the crime of aggression under international law, has researched the topic extensively and written about how the United Nations and the International Criminal Court are not the only potential enforcers. He shares his examination of the successful arrests of previously untouchable leaders to shed light on the potential arrest and trial of Russia’s president.
Set out below is an excerpt from “You’re under Arrest, Mr. President,” a chapter in Professor Weisbord’s acclaimed book, The Crime of Aggression: the Quest for Justice in an Age of Drones, Cyberattacks, Insurgents and Autocrats (Princeton University Press, 2019), which his publisher calls “a riveting insider’s account of the high-stakes legal fight to enact historic legislation and hold politicians accountable for the wars they start.”
Enforcement of the crime of aggression does not require a global monopoly on the use of force. The United Nations (UN) and the International Criminal Court (ICC) are not the only potential enforcers. Future arrest scenarios can be found by examining the successful arrests of previously untouchable leaders. A key factor lies in the precarious hold on power of many leaders who commit international crimes. A lesson learned from arrest operations to date is that a monopoly on force within a defined territory is not an arrest prerequisite; what is necessary is just enough force to apprehend the perpetrator. Although the ICC does not have its own police force, arrests can be generated. UN peacekeepers, regional coalitions, private military contractors, successor regimes, militarily powerful states, and even weaker states have apprehended international criminals. States may be reticent to endanger their soldiers, but they are increasingly willing to cooperate with local authorities or the UN. Ivory Coast President Laurent Gbagbo’s arrest for other international crimes is an object lesson. The first aggression defendants at the ICC will likely be handed over by successor regimes.
Key factors in successful arrests of leaders who commit atrocities are the instability of their domestic and international political power, and their geographic isolation. The arrest of former Yugoslav President Slobodan Milošević was facilitated by students protesting his corrupt, authoritarian leadership. Street protests escalated into a political movement demanding Milošević’s removal and the rule of law. Serbs fed up with his autocratic ways and the ruin he had made of their country finally voted him out, physically removing him from parliament when he refused to cede power. The EU provided incentives for his arrest, and Serbia’s new authorities surrendered Milošević to The Hague for trial.
The conditions are ideal when both political and geographic isolation are present. Congolese Vice President Jean Pierre Bemba, one of the richest men in the Democratic Republic of the Congo, travelled to Portugal for medical care. Fearing for his safety in the Congo after his private militia clashed with government forces, he made the mistake of remaining in Europe to visit his wife in Brussels, and was arrested in Belgium, a state that aggressively enforces international criminal law.
Nongovernmental cooperation can undermine autocratic political power and spur the arrest of criminal leaders. Amnesty International and an alliance of human-rights organizations, working concertedly with Spanish lawyers and judges, overcame British resistance and issued an arrest warrant for Chilean President Augusto Pinochet. Pinochet was recovering from back surgery in London when Scotland Yard served an arrest warrant alleging the torture and killing of Spanish citizens in Chile. Using the Spanish warrant, British police detained Pinochet in London. Although Home Secretary Jack Straw subsequently released him back to Chile on medical grounds, Pinochet spent the rest of his days in court answering accusations related to his abuse of power.
Victims may not personally arrest perpetrators, but they can generate the momentum for official action. Austrian Jewish Holocaust survivor Simon Wiesenthal inspired victims of other state-sponsored international crimes to hunt down their oppressors. Following Wiesenthal’s lead, Souleymane Guengueng, Chadian victim of President Hissen Habré’s torture dungeons, vowed to bring the ex-president to justice. Partnering with Canadian Human Rights Watch lawyer Reed Brody, Guengueng led a campaign for Habré’s arrest for crimes against humanity and was repeatedly blocked. Guengueng and other victims filed the case in Senegal, but bowing to political pressure, the courts refused the case. Guengueng and Brody had more success in Belgium, where a court indicted Habré for international crimes, but Senegal refused to extradite him for trial. Undeterred, Guengueng approached the African Union and convinced it that Habré should be tried. Only then did Senegal agree to put the US-backed dictator on trial. The African Union and Chad partnered with Senegal to ensure fair proceedings.
The arrest of Radovan Karadžić demonstrates how successor regimes, which may be amenable to incentives, are well placed to arrest indicted leaders. Karadžić, the former Bosnian Serb leader and psychiatrist accused of masterminding the siege of Sarajevo and the Srebrenica massacre, was arrested by Serbian security forces on a Belgrade bus. Although indicted by the ICTY, Karadžić had evaded arrest for a decade. Disguised as an Orthodox priest and folk healer, he lived openly under the eyes of NATO and Serb authorities. Only after the European Union made Karadžić’s arrest a condition of Serbian membership did the Belgrade government finally detain him and ship him to The Hague. “Without pressure, things do not really move forward,” explained ICTY Prosecutor Serge Brammertz. “Linking EU enlargement to the arrest of the fugitives has been a really successful tool.”
Powerful nations can help shelter indicted leaders, but they can also help secure their arrests. Liberian President Charles Taylor was granted asylum in Nigeria as part of a deal ending the gruesome fourteen-year civil war in Sierra Leone. A joint United Nations and Sierra Leonean war-crimes tribunal issued an indictment and requested his arrest. The American, Liberian, and Sierra Leonean governments persuaded Nigeria to transfer Taylor to the Special Court for Sierra Leone. Taylor fled his luxury villa in a Range Rover with diplomatic plates, carrying sacks of cash; he made it to the Nigeria-Cameroon border but was identified by customs officials. Nigerian security arrested Taylor and sent him to Liberia. From Liberia, he was flown to Sierra Leone for trial. Uneasy about Taylor’s escape attempt and his residual political influence, tribunal officials moved the trial to The Hague. Taylor joined other deposed African and Balkan leaders in a Dutch prison overlooking the North Sea.
UN peacekeepers from NATO countries carried out most of the arrests of Yugoslavia’s 161 indicted war criminals. When militarily powerful states are involved, political and geographic isolation is less essential in arrest operations. Polish special forces carried out the first arrest of a war-crimes suspect in Croatia in 1997, and this arrest shamed larger NATO powers into action. The next arrests were carried out by UK SAS special forces. An SAS team posing as Red Cross officials arrested Prijedor’s anti-Muslim mayor at work and transferred him to The Hague. Prijedor’s anti-Muslim police chief Simo Drljaca pulled a gun on the arresting SAS team, who had interrupted his fishing trip, and he was shot dead. By July 2011, every political and military leader indicted by the ICTY had been captured or killed. According to investigative journalist Julian Borger, “It has arguably been the most successful manhunt in history.”
The international criminal cases prosecuted so far underscore the importance of political will in enforcing the rule of law. At first glance this may distinguish international from domestic law enforcement, but both systems require political will to arrest powerful perpetrators. Domestic laws against weak perpetrators are easily enforced, but a domestic campaign against political corruption, high-level white-collar crime, or organized crime requires political courage and cooperation among individuals and organizations. The common weakness of both domestic and international law, from domestic bankers to powerful presidents, lies in the power imbalance that enables unequal enforcement.
The important question then becomes: How can the rule of law be enforced equally against weakened and powerful wrongdoers?
This excerpt is republished with the permission of Professor Noah Weisbord.