The UN Security Council should not have referred the Libya situation to the ICC, claim many on the Right, because now Qaddafi has no incentive to step down. If potential prosecution awaits after his ouster, they say, he has every incentive to hold his ground. The ICC referral, the argument goes, is a barrier to a negotiated outcome. So said John Bolton last month. So said David Frum yesterday.
But as Mark Kersten of Justice in Conflict also wrote yesterday, “there’s no real evidence of this.” Kersten offers Uganda as a historical example to complicate the Bolton-Frum line of thinking (which has also been espoused by Doug Saunders and Max Boot, as Kersten notes). The ICC issued arrest warrants for senior members of the Lord’s Resistance Army (LRA) and was criticized for potentially hindering negotiations. And yet, the LRA subsequently engaged even more deeply in peace talks.
And as Kevin Jon Heller wrote earlier this month, the referral gives lower level officers an incentive to abandon the regime, a point completely ignored by those who criticize the ICC referral on incentive-to-step-down grounds.
Several years ago, Jamie Mayerfeld considered the referral issue in the abstract. Weighing the options of amnesty versus threatening prosecution for human rights violators, he concluded:
Our answer will largely depend on the optimism with which we view the future of the human rights movement. If we think that democracy is globally stagnant or in retreat while dictators and warlords have reason to feel secure, propitiation by means of amnesty may represent the prudent course. Hope of amnesty may be necessary to induce secure tyrants to surrender power. But if we think that democracy is gaining ground and that the world’s tyrants are vulnerable, the wiser policy over the long term may be to terrify them into submission.
This is a “time consistency dilemma” way of looking at it. Like pirates. Even if bargaining with pirates would lead to a favorable outcome, we don’t do it so that we discourage future acts of piracy. So the issue is more complex than Bolton, Frum, Boot, Saunders et al. claim.
