The recent decision of the US government to admit the embattled President of Yemen, Ali Abdullah Saleh, to the country for medical treatment presents a classic human rights conundrum. Though a friend of Saddam Hussein and conciliatory toward Iran, Saleh has been an ally of the United States' against al Qaeda. But according to human rights groups, he and his security forces have been responsible for hundreds of deaths since the Yemeni opposition took to the streets last spring to demand his ouster. By rights, his opponents claim, Saleh should be brought to trial, not provided top-notch medical care and, presumably, a comfortable retirement. At the same time, there is much to be said for removing him from the scene in Yemen -- something Saleh has repeatedly agreed to and then reneged upon -- and letting Yemen get on with its future, however fraught it may be.
If we lived in an ideal world, all those who are alleged to have committed crimes of whatever stripe would be brought before a bar of justice and, if convicted, sentenced. But just as prosecutors sometimes decide to plea-bargain a case or even not to prosecute an obviously guilty party because of extenuating circumstances such as an overriding state interest, so nations often have to decide whether it makes sense to offer a human rights offender safe haven in exchange for a chance at peace. The most recent dramatic example of that dilemma presented itself, at least theoretically, in the case of Muammar Qaddafi. Had Qaddafi been willing to flee Libya early in the conflict, thus no doubt saving scores of lives, a reasonable argument could have been made that offering him immunity might have been the better option than insisting upon justice, despite his decades of human rights violations.
One solution to this quandary is to establish a reliable system of international accountability. Were the International Criminal Court (ICC) the universally recognized arbiter of the guilt or innocence of the world's tyrants, supported by all nations, its indictments enforced, human rights offenders would know that the odds of their finding a country willing to host them and hence of their escaping punishment for their crimes were minimal. But of course major powers, including the United States, are not parties to the ICC; even some of its member states refuse to honor its indictments; and the Court has not yet succeeded in convicting anyone.
In the absence of consistent enforcement of international law, therefore, the burden of holding human rights violators to account often falls to individual victims of those crimes. Fortunately, in the United States, we have not only statutes (the Alien Tort Claims Act and the Torture Victim Protection Act) that allow for civil suits against alleged perpetrators but also an organization, the Center for Justice and Accountability (CJA), founded in 1998, that facilitates such litigation. CJA and its clients have successfully won judgments against wrong-doers from China to Haiti, El Salvador to Peru.
So one option with regard to Saleh, following his admittance to the US, may be to bring civil suit against him on behalf of some of those he has harmed. On February 21, 2012, when the transfer of power in Yemen is finalized, Saleh will no longer be a head of state and hence protected by sovereign immunity. At that point legal action becomes at least theoretically tenable. Of course, the US may have made guarantees of immunity to Saleh and may seek to intervene to stop such a suit but that would put the government in the uncomfortable position of defending an alleged human rights criminal. If the Administration is intent on admitting Saleh and, for whatever reasons, unwilling to return him to Yemen for trial, let it at least refuse to shield him from civil suits, thereby preserving at least one clean hand in the dirty business of dealing with despots.
William F. Schulz, former Executive Director of Amnesty International USA, is President of the Unitarian Universalist Service Committee