By Taylor Marvin
It appears that Gadhafi’s* son Seif is in contact with the ICC, apparently to negotiate a possible surrender on the condition that he won’t be returned to Libya if he’s found innocent. At The Monkey Cage, Emily Ritter of the University of Alabama and Scott Wolford of University of Texas-Austin believe this is evidence that autocrats value trial at the ICC as preferable to death, but only if comfortable exile is off the table:
“One could argue that, by seeking terms better than remaining at large—-which seems to involve taking shelter with a nomadic tribe, accompanying mercenaries to Zimbabwe, and running a permanent risk of violent death or capture—-the younger Gadhafi is trying to win just such an assurance from the ICC: jail time or, should he prove his innocence, a return to a country other than Libya. Of course, the ICC can be a better option for suspects than the relatively poor outcome of death under a collapsed regime, but only if the ICC represents a better prospect than any outside option, such as asylum.”
This is further evidence that, while trial at the ICC is far from idea for deposed autocrats, it’s preferable to a brutal death or imprisonment within their home countries under a hostile successor regime. This supports the theory that increased NATO lethality and willingness to remotely intervene in civil wars against dictators could increase the efficacy of the ICC by making trial a better alternative to fighting to the end, which NATO’s increasing ability to target individuals makes more likely to result in death rather than eventual victory.
The authors raise an interesting point — an ICC willingness to negotiate surrender under favorable terms for suspects could encourage future war crimes:
“If leaders expect that they can negotiate marginally better deals for themselves prior to surrender (which, in this case, may mean living out one’s twilight years in a country where one isn’t likely to be prosecuted again or killed), then they’ll also be marginally more willing to commit war crimes or crimes against humanity in the first place.
So, as the world debates the best approach to dealing with the remnants of the Gadhafi regime, it’s important to keep this tradeoff in mind: war criminals can be enticed to surrender by making the terms of their prosecution better than remaining at large—-enabling prosecution and preventing whatever mischief Seif al-Islam might otherwise engage in as a fugitive—-but granting leniency may undermine deterrence in future cases if the ICC appears too willing to bargain with its suspects.”
This gives us an interesting hypothesized incentive scheme: because international asylum is no longer an option for deposed autocrats, threatened dictators have an incentive to violently resist opposition movements in the hopes of retaining power, rather than fleeing into comfortable exile. Here the existence of the ICC makes damaging wars more likely.
But Dr. Ritter and Dr. Wolford argue, if the ICC establishes a tradition of negotiating favorable terms with deposed dictators, autocrats have an incentive to fight until defeat is inevitable and only then surrender, maximizing their chances of remaining in power or, failing that, surviving. But here dictators’ incentive scheme gets more complicated. The existence of the ICC gives dictators an incentive to fight until the very end to avoid prosecution. A history of leniency at the ICC increases this incentive, by making prosecution in The Hague marginally more attractive than fighting until the end, which will likely result in death. But ICC leniency is also a moderating influence on threatened dictators — if dictators are willing to leave the option of flight to the ICC open, they’re also more likely to avoid high levels of brutality that will guarantee them a harsher sentence even if the ICC bargains down the terms of their trial in an effort to negotiate their surrender, a balancing act that’s likely very much on Seif Gadhafi’s mind. Importantly, Seif’s terms only apply after his trial, meaning that, drawing from this example, future dictators considering similar surrender deals have an incentive to moderate their brutality and minimize the sentence served before enjoying the benefits they negotiated from the ICC. Ritter and Wolford are right to note that ICC bargaining can incentivize crime, but they miss that a willingness to bargain likely also moderates criminal behavior. While international courts’ inability to apprehend suspects alone gives then an incentive to bargain down fugitives’ trial terms, it’s implausible that the possibility of punishment would be bargained completely away. Dictators that wish to leave the possibility of fleeing to ICC custody open have reason to attempt to moderate their verdict by limiting their use of violence, even if they can expect an ICC bargain in return for their surrender.
This suggests that the ICC should prefer a moderate propensity to bargain with fugitives — enough to entice them to surrender, while ensuring that their eventual sentence will be harsh enough to deter future criminals from unlimited violence. Ritter and Wolford reach a similar conclusion, though without considering the moderating influence of a perceived ICC moderate propensity to bargain:
“Courts should consider bargaining as a possible solution to the problem of warrant execution in the international setting, as it may enable courts to build legitimacy through adjudication and become sovereign, powerful institutions, overcoming the obstacles to enforcement even if states are unwilling or unable to cooperate with the institutions’ rules.”
However, the increasing lethality of NATO air power means that dictators have an even greater incentive to avoid a NATO intervention, which is increasingly likely to result in their death at the wrong end of a drone-fired Hellfire missile. This leaves embattled dictators a thin rope to walk: utilize sufficient force to crush a opposition movement, while avoiding the threshold of brutality required to attract a NATO intervention. Of course, this threshold varies from country to country — most dictators will never suffer a Western intervention, for any number of reasons. Libya was an exception. It’s open geography was well suited to effective air-to-ground warfare, the Libyan rebels had had already managed to field an organized armed opposition force that NATO could tactically support, and Gadhafi’s continued rule had no real utility to Western powers. As we’ve seen, few nations fill this criteria: Syria’s opposition has (for the most part) declined to openly fight government forces and Syria’s urban geography makes airpower much less tactically useful than in the Libyan desert and Bahrain’s hospitality to the US Fifth Fleet make both countries secure from the threat of NATO intervention, no matter how brutally their governments crush democratic protest movements. However, it’s also worth noting that sometimes NATO members will militarily intervene in conflicts where they have few apparent interests, as the Obama Administration’s recent deployment of troops to central Africa to combat the LRA demonstrates. As the costs and efficacy of drone warfare increase, there is good reason to suspect that the criteria for triggering NATO assassination missions will shrink, potentially giving vulnerable dictators in rural, open countries greater incentive to avoid extremely brutal responses to domestic unrest, however lenient the ICC elects to be.
*Astute readers will notice that I spelled “Gadhafi” this time. I don’t have a convention for the confusingly-translated dictator’s name, and just use whatever my source material prefers. Apologies for any confusion.
Update: Slightly altered for clarity, added paragraph.