Gimme Shelter

Quick letters go out: to the U.S. government, requesting the assistance of the FBI in a probe of the old dictator's thievery; to Britain, asking Scotland Yard's help in the same sort of investigation; to Swiss authorities; and to other jurisdictions that appear in the internal investigation whenever evidence surfaces of banking activities. (These days Latvia, Dubai, the Cayman Islands, and various other island jurisdictions figure prominently in such probes.) Sometimes the efforts strike instant paydirt, as when a Swiss court froze the assets of former Zairian dictator Mobutu Sese Seko and a U.S. court arrested the holdings of Filipino dictator Ferdinand Marcos.

These letters are always accompanied with a request that the state use its power to identify and freeze any bank accounts or investments associated with the deposed leader, to be held pending further development and proof of claims. One of the major game changes comes on this point: A generation ago, such requests usually got a polite brush off. Today, more often than not, the government on the receiving end is delighted to comply. Some argue that this is the result of stronger international cooperation in efforts to combat money laundering; the more cynically minded, however, point out that banks themselves are generally delighted about a freeze, since it leaves them managing the money, often for a decade or longer, as litigants battle over who really owns it.

Once assets are identified, a litigation strategy is formed. The hub for such activities is now well established: the Royal Courts of Justice in London. Because London plays a central role in global finance and because English courts pioneered the concept of a global freezing order (known as a "Mareva injunction" or simply a "Mareva"), English lawyers have been center stage in such struggles for more than a decade. Getting such a freezing order, enough to clip the financial wings of the fleeing dictator, is usually the first step of litigation; actually seeing the case through to the end is a more difficult proposition. Doing so may be too expensive a burden for a poor country to bear, but a patient and tenacious prosecution is often rewarded.

Then there's the criminal side of the ledger: a more perilous matter, especially to the dictator with blood on his hands. The days when head-of-state immunity was a show-stopper are now long past. Sixty-nine current and former heads of state have been successfully prosecuted for international crimes since 1990, and the trend has been moving steadily towards more prosecutions. The turning point came in Latin America, where courts and prosecutors gradually overcame the grants of amnesty and statutes of limitation that had previously hamstrung investigations into the brutal regimes of the 1970s and 1980s, essentially arguing that no legal immunity could be granted for certain gross human rights violations. Mubarak's regime, with its well-documented record of torture and brutal methods of repression, is a prime candidate. His government provided a key spoke in the CIA's extraordinary renditions program, which squarely falls within the international crime of "disappearing" — a program that was run, incidentally, by Omar Suleiman.

Mubarak might cut his losses by avoiding a bloody exit from office (though the escalating violence in Cairo suggests that may not be an option), but the past may come back to haunt him. Consider the cautionary tale of deposed Chadian dictator Hissène Habré. Human rights investigators documented thousands of politically motivated murders and instances of torture carried out by his regime, and Habré was ultimately indicted in Belgian courts using universal jurisdiction concepts. He secured asylum in Senegal after he was toppled, but the Senegalese were forced to place him under house arrest and are now coping with aggressive efforts to have him extradited to stand trial. Sudanese President Omar Hassan al-Bashir also faces an indictment, and Uzbekistan's Islam Karimov is  widely expected to face prosecution efforts if his grip on power loosens.

If Mubarak leaves, he will need a safe haven: a government that will protect him from lawsuits and criminal charges. It is increasingly difficult for any Western state to make such promises. And that leaves him with few and generally unappealing exit options. He may find a welcome in Saudi Arabia or under the roof of an equally unstable dictator in the region. But his troubles are not likely to end when the wheels go up on his jet from Cairo.

Tags: al-bashir, anwar sadat, boris yeltsin, cairo, charles taylor, dictator, dictatorship, egypt, ferdinand marcos, hissène habré, hosni mubarak, islam karimov, mobutu sese seko, omar hassan al-bashir, omar suleiman, slobodan milosevic, tunisia, vladimir putin, zine el-abidine ben ali

    • Scott Horton
    • Scott Horton is a contributing editor at Harper’s magazine, where he covers legal and national security issues. As a practicing attorney, Horton has focused on investment in emerging markets. He is also a life-long human rights advocate and serves as a director of the Moscow-based Andrei Sakharov F...

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