News emerged yesterday that Seif al-Islam Gadhafi has been in “indirect” contact with the International Criminal Court over the terms of a possible surrender, seeking a guarantee that he wouldn’t be sent back to Libya in the event he’s found innocent. With no independent force to arrest suspects, the ICC relies primarily on others to arrest suspects and hand them over to the court for trial—an inefficient process at best and one that often leaves suspects at large, presumably continuing their pattern of crimes against humanity. In a paper forthcoming at the Journal of Theoretical Politics, we argue that an international criminal tribunal like the ICC could improve its ability to bring suspects to trial if it were to bargain with suspects directly rather than waiting for their capture. Though both parties—the ICC Prosecutor and a Gadhafi intermediary—pose this as a matter of “clarification,” we think it’s useful to think about these talks in terms of bargaining and what it can mean both for the ICC and for the crimes it proposes to deter.
We argue that courts lacking the ability to arrest suspects, like the ICC, can facilitate the surrender of their suspects by bargaining directly with them, altering charges or punishments or even the terms of surrender. In doing so, the court can bring suspects to trial without waiting for states or forces with uncertain resolve to capture and surrender them, increasing the number of cases they can try by tailoring the terms of surrender to a fugitive’s prospects for remaining at large. 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. In this case, the effective refusals from Mali and Niger to harbor him limit his outside options, leading Gadhafi to turn to the ICC for the next best option—a fair trial. We argue that, even with exile a possibility, as it may be here, some kind of pre-arrest bargaining can bring suspects to justice more easily. Gadhafi is attempting to offer his surrender in exchange for assurance that “he would receive a fair trial and that he could be helped to find a new country of residence if he were acquitted or after completing a prison sentence,” and the ICC is working with him to secure that surrender. Without these exchanges, the suspect would likely prefer to remain at large in the hopes of avoiding capture.
(Notably, others have argued that international punishment can represent a post-exit fate worth clinging to office or even dying to avoid. Our theory assumes only that the accused compares the value of his fate at the ICC’s bench (which can be light to severe, depending on the bargain) to the value of his fate at large (which can theoretically range from swimming in a pool of gold in exile or a risk of death).)
In that sense, the ICC might view this as an opportunity to raise its profile and increase its institutional stature by prosecuting a high-profile suspect and bringing an otherwise costly period of Seif al-Islam remaining a fugitive to a quicker end. However, our paper also identifies that the benefits of pre-arrest bargaining may also come at a cost: 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.