Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
Exile as a transitional justice option can facilitate a transition to peace by physically removing an individual or group from the region.32 Two former presidents of Haiti went into exile. In 1986, Jean-Claude “Baby Doc” Duvalier fled to France but then returned to Haiti in 2011, where he died in 2014.33 And, in 2004,
Jean-Bertrand Aristide either voluntarily absconded to or was kidnapped by the United States and transported to the Central African Republic, after which he fled to Jamaica and then to South Africa, and then, like Duvalier, returned in 2011 to Haiti, where he allegedly remains.34 Other famous cases of exile include Idi Amin, the former dictator of Uganda, who in 1979 went into exile in Libya and eventually Saudi Arabia, where he died in 2003,35 and Mengistu Haile Mariam, the former dictator of Ethiopia, who in 1991 went into exile in Zimbabwe, where he allegedly remains.36 Charles Taylor, the former president of Liberia, went into exile in 2003 in Calabar, Nigeria.37 On March 25, 2006, Nigerian president Olusegun Obasanjo announced that he would renege on his promise to provide Taylor with asylum,38 thus prompting Taylor to disappear from Calabar two days later.39 After receiving pressure from the USG, Nigeria arrested Taylor the following day and then transferred him to Liberia to face prosecution at the SCSL.40 He was ultimately convicted of war crimes and crimes against humanity and sentenced to fifty years imprisonment.41
Exile may be voluntary, as when an individual or group elects to yield power and position and move to another state, or involuntary, as when other entities oust leaders and banish them to a foreign land. Some argue that exile is a reasonable option for deposing leaders in certain cases, at least in the short term. Exile may represent a compromise of sorts, whereby removed leaders escape other transitional justice options in exchange for not causing further conflict or continuing to pilfer from the state’s treasury. Political scientists Edward Mansfield and Snyder argue that potential spoilers should be exiled and offered a “golden parachute,” or a generous departing provision, to foster democratization by reducing incentives to retain or regain power.42 Even where there is little likelihood of their wielding authority, suspected atrocity perpetrators may still be induced to move. For example, in a practice that pejoratively became known in some circles as “Nazi dumping,” the USG reportedly allowed alleged Nazis who had become U.S. citizens to keep accruing millions of dollars in Social Security benefits if they agreed to leave the United States voluntarily.43
Yet the long-term effects of exiling an accused atrocity perpetrator could be disastrous, far outweighing any short-term benefits. First, exile is morally problematic. Although it punishes alleged atrocity perpetrators through banishment from their homeland or a third-party state (thereby constraining freedom of movement), exile may be considered too lenient, as it does not hold these suspects accountable in a court of justice and forgoes possible punishment through traditional means, such as imprisonment. Golden parachutes, under this interpretation, are perverse rewards for committing heinous crimes.
Second, exile is strategically problematic, as it may undermine the international community’s ability to deter atrocities. The relatively mild nature of the punishment of exile may embolden other potential warlords and human rights violators and fail to deter them from continuing or commencing horrific acts.
Third, exile is legally problematic. If suspects are not arrested and prosecuted, any jurisdiction that has indicted them—such as an ICT—would be excluded from the transition process, and domestic and/or international law may be violated. States providing asylum may face doubts about their reliability in the international system, complicating their role and relations in world politics.
Finally, exile can result in problematic consequences for victims. The emotional and psychological reconciliation process for persecuted individuals may suffer setbacks without a formal prosecution (or other mechanism for holding perpetrators accountable), as victims might continue to feel unsafe and unable to lead productive lives. Victims may also feel that their suffering has not been validated or vindicated, making it more difficult for them to establish or re-establish relationships with those with whom they have experienced conflict in the past.
Furthermore, even if in exile, a despot might continue to foment conflict in his home state through his loyalists in that region, causing further violence and hampering post-conflict reconstruction. If the accused leaves his place of exile and returns to his home state or seeks asylum elsewhere, he may be able to operate with even fewer constraints. Taylor’s temporary escape, for example, calls into question the ability to confine an exiled individual to a region or to track that person’s movements.
Other potential practical problems include situations in which home states renege on grants of exile, adopting states break promises of asylum, and other authorities (such as ICTs) ignore exile arrangements altogether—any of which threatens the credibility of exile deals. Nigeria’s arrest and transfer of Taylor first to Liberia and then to the SCSL’s authority implies that other suspected atrocity perpetrators may be less likely to accept such offers by resigning and leaving a state voluntarily.
Opponents of an alleged atrocity perpetrator may decide to pursue alternative, perhaps forcible methods to transfer power to new leadership. Instead of the peaceful process of exile, such violent means could, in the short term, cause more conflict if targeted individuals fight to retain power and freedom. On the other hand, if the new leadership’s violent response were successful, it could, in the long run, help combat impunity, support reconciliation efforts, bolster efforts to deter atrocity perpetrators, stem regional conflict, and uphold international law.
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