Erga Omnes

Milosevic, Habré, Pinochet, Samphan, Hussein, Montt, Bashir, Fujimori, Taylor.  In a trend that has accelerated dramatically since 1990, heads of state often feature centrally in the pursuit of global justice.  They top the chain of command, emblemizing the full power and viciousness of a regime, so their prosecution stands as the ultimate challenge to impunity.  For Ibrahim Sorie, a legislator from Sierra Leone who attended Charles Taylor’s trial, the dictator’s 50-year verdict affirmed “that impunity is ending for top people.”  If the impunity of power fueled those orchestrating the most heinous crimes, holding them accountable represents—like nothing else—the countervailing power of justice.

In this sense, prosecuting heads of state is partly performative (and cathartic), both visual confrontation and ultimate role reversal, as the weak accuse, argue with, and sometimes punish the tyrant.  Two gaps can become obscured in the process.  One is the selectivity and power that can underlie the pursuit of international justice.  As Chris Mahoney writes in The Atlantic, in a corrective to the euphoria surrounding Taylor’s prosecution, victor’s justice is still at play:

The truth is that Taylor is an aberration, the exception that proves the rule of a nascent international justice system that is developing in such a way as to reflect global power, not the ideals of global justice…  If you are going to support crimes, even if you’re a head of state, you had best hold on to power.  If you can’t, then make sure the world’s great powers are supporting you, because they decide who is prosecuted, and who is not.

Another set of blinders stems from over-emphasizing the role of personality.  Not only are individual and social responsibility not one and the same, but human rights crimes can only be individualized up to a point.  Yes, someone signs the orders, pulls the trigger, rapes, tortures, or looks the other way.  But human rights crimes typically reflect systemic policies and broad structural inequalities that cannot be entirely reduced to single henchmen.

Even when we know this to be the case intellectually, there is something viscerally satisfying about seeing the single head of state on trial, deflated and vulnerable.  The risk is that justice becomes overly individualized and retributive, to the detriment of more socialized and restorative approaches.