Can dictators be put on trial? (ENG explainer)

“To The Hague!” is a common chant at protests in Belarus, Russia and Kazakhstan, as demonstrators demand their authoritarian leaders be sent to the International Criminal Court. Putting a dictator on trial isn’t easy, but it is possible.

How do you prosecute a dictator?

Payback for crimes usually comes after a revolution. On Christmas Day 1989, military forces shot Nicolae Ceausescu, the leader of communist Romania. He had been sentenced by a military court, hastily convened by the revolutionary authorities.

An outside army can also bring retribution. Saddam Hussein was hanged on December 30, 2006. The dictator was tried by the Iraqi special tribunal, convened by the Coalition Provisional Authority. Saddam was sentenced to death by Iraqi judges under Iraqi criminal law.

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Surprisingly, Ceausescu was the only communist dictator ever convicted. The East German leader, Erich Honecker, went unpunished. He spent six months in pre-trial detention, but was released on health grounds and went to Chile, where he died of cancer.

Poland’s military dictator, Wojciech Jaruzelski, was only put on trial in 2008 – 19 years after the fall of communism. The trial lasted three years and was suspended due to the general’s ill health. Jaruzelski died three years later.

Lifetime immunity, amnesties, old connections, or fleeing abroad can help dictators avoid trial, but since the late 1990s, escaping court has been more difficult.

International courts

The United Nations Detention Unit in Scheveningen, a suburb of The Hague. Before his verdict was announced, the former Serbian president, Slobodan Milošević, died here in March 2006. In 1999, he had been indicted for his war crimes in Kosovo.

The Tribunal for the Former Yugoslavia provided a new opportunity to prosecute high-profile criminals. It was the first court established by a UN Security Council resolution.

The International Criminal Court has been operating in The Hague since 2002. Although not part of the UN, it can act on behalf of the Security Council. In 2008, the court set a precedent by issuing an arrest warrant for a sitting head of state. Sudanese president Omar al-Bashir was put on the wanted list, charged with the genocide of citizens in Darfur province.

In June 2011, the ICC issued a warrant for a second incumbent head of state – Libyan dictator Muammar Gaddafi. But Gaddafi didn’t live to see his trial, as he was captured and killed by rebels that October.

What can a dictator be tried for?

The ICC can only punish four types of crimes: genocide, war crimes, military aggression, and crimes against humanity. The latter includes mass torture, murder, and kidnapping.

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Only citizens of countries which are parties to the ICC Statute, or who have committed crimes on their soil, can end up in the dock. There are only five such post-Soviet states – the Baltic countries, Moldova, and Georgia.

But the court’s jurisdiction can be extended. Any country may request that perpetrators be punished. This is what Ukraine did following the murders of Maidan protesters, the annexation of Crimea, and incitement to war in Donbas.

The UN Security Council can also instruct the ICC to prosecute a dictator. However, its members include two authoritarian countries who have the right to veto – Russia and China.

Universal jurisdiction

There is another legal mechanism that doesn’t depend on either Russia or China. Conventions adopted after World War II allow any state to try people for torture, genocide, and war crimes, regardless of where the crime took place, or the nationality of the accused.

“If a group of Belarusians living in Germany have suffered as a result of the recent events, they may request the German prosecutor’s office (either directly, or through a lawyer or an NGO) to launch a criminal investigation,” Simon Papuashvili, a representative of the Brussels-based International Partnership for Human Rights, says.

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Universal jurisdiction resurfaced in 1998 when British prosecutors arrested the former Chilean dictator Augusto Pinochet. The order was issued by a Spanish court. Although London recognised Spain’s right to try Pinochet, the aged dictator was allowed to return home “on humanitarian grounds”, where a new trial was launched against him.

According to the TRIAL International association, last year, over 70 cases involving universal jurisdiction were examined by courts in 16 countries. But no court in France, Spain or Belgium can arrest the current head of a foreign state. Legitimate rulers are protected by international law. But who decides if a ruler is legitimate? For example, in September, 16 countries, including the US and Germany, refused to continue considering Alyaksandr Lukashenka the legitimate president of Belarus.

The bottom line

Convicted dictators are rare but not unique. Tyrants are usually tried by their fellow citizens after a regime change. If the new authorities do not wish to, or the regime doesn’t change, the UN Security Council can be requested to take over. It can then set up a special tribunal or entrust the investigation to the International Criminal Court.

Citizens may also lobby foreign countries to issue an arrest warrant for a dictator accused of murder and torture. Unfortunately, it is not possible to arrest a current head of state.

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Alyaksadr Papko, Vot Tak TV/Belsat TV