Incentives in Prosecuting Dictators
Jul 2, 2011

Incentives in Prosecuting Dictators

The International Criminal Court has recently sought the arrest of Qaddafi, and others in the Libyan regime, for crimes against humanity. Justified, surely, but is this move wise? To answer the broader questions about charging dictators in international courts, it is worth looking at this from the perspective of the dictators.

Imagine being a dictator like Qaddafi who is facing both an existential threat about the viability of continued power in his state and the inevitability of criminal charges brought against him in the future (but very possibly in absentia). The threat of spending the rest of their lives in jail is a powerful incentive and it works to provide further momentum to stay in power at any and all costs.  Qaddafi must be worried about the chances of him ending up in the sorry state of Egypt's ousted Mubarak. To him, desperately clinging to power despite the enormous effect on the lives of millions of Libyans suffering from the crisis is a rational outcome to attempt to avoid the horrors that beset him should he voluntarily leave into international custody.

This effect that the fear of prosecution entrenches the world's worst dictators and thereby exacerbates conflict has an important - perhaps dominantly important - converse effect. Namely, that the fact that dictators are not untouchable years and decades after their atrocities, and that once they eventually become ousted they will face huge consequences for their crimes, acts as a disincentive to dictators committing such crimes in the first place. Perhaps the case is such that the most egregious atrocities are being suppressed in the dictatorships of other countries because of the disincentive of subsequent prosecution and without the continued attempts to try people like Mubarak and Qaddafi the world would be worse off. That said, it would seem that dictatorships go so strongly hand in hand with atrocities of some kind that could be prosecuted in the future (take Syria, Yemen and Bahrain as other examples caught up in the Arab Spring) that they all can fear prosecution but could hardly be overly motivated not to commit atrocities for fear of even more prosecution. Sentences aside, one can only spend one lifetime in prison and if the threat of that exists regardless then the dominating incentive is the one to not get caught by being ousted opposed to the one not to commit crimes in the first place.

This fundamentally realpolitik based consideration of incentives may be distasteful. Court systems are meant to be inherently blind to realpolitik. It should not matter whether it is a dictator or a beggar who breaks the law, the law should apply equally to either and we cannot bend it to fit our whims of what might be most effective at, say, reducing suffering in Libya. This isn't just a moral claim, it can also be fully argued that there are many benefits to society (such as disincentives for crimes along the lines of the second factor above) that result from such egalitarian application. The utilitarian inside me demands, however, that we must be at least open to discussion of the complete set of consequences of applying the law to see if a different course of action is preferable.

Of course, international laws are not at all applied equally. They have an inherently western-centric bias and seem to consistently find fault in the foes of western foreign policy and not at all in the west itself. This asymmetry was duly noted in the African Union's rejection of the arrest. As a symbolic and timely example, take the trial against four now aged leaders of the Khmer Rouge in a UN backed and financed (at an enormous cost of over 100 million) tribunal in Cambodia while systematically ignoring (and vindicating in so doing) the US's secret and murderous bombing campaign during the same period in that country.

The ever-present need for legitimacy underlines some of the incentives for the western powers to have such a declaration against Qaddafi made. Given how the war there is already far beyond the scope originally given in the UN mandate (a no fly zone to protect civilians), having a declaration of the evils of Qaddafi underscores that this war is in some sense just and appropriate. The New York Times has already suggested that this arrest warrant may form a basis for an extension of the mandate. Whether it becomes codified or not, mounting the rhetoric against Qaddafi (just as was done for Saddam Hussein and any other number of villains in which military action is taken against) raises the legitimacy of the war. It is thus sought after for reasons possibly far removed from the noble intent of bringing an egregious violator of human rights to justice.

It is worth noting two points about the irrelevancy of all of this. Firstly, Libya does not recognize the ICC. Given how this is a body of voluntary membership it has no actual legitimacy in Libya or over its ruler. Secondly, there is a long pattern of past dictators when they are kicked out of power arranging, as a condition of their "voluntary" departure, transport to countries like Saudi Arabia or Venezuela where they can live in some luxury and escape from the threat of international prosecution. The irrelevancy underscores the relative importance of the search for legitimacy as a key factor in such considerations.

It is of course true that a major problem in the world today is the corruption, lack of accountability and asymmetric rules that allow for an entrenched political class capable of getting away with so much in so many countries. It is certainly arguable that a very slippery slope exists and any step towards even further turning a blind eye - especially for the worst of cases like Qaddafi - is too dangerous and unpalatable to be seriously considered. However, the effects can make real differences in people's lives and at the very least we should be able to dismiss the vacuous showboating actions such as the ICC's arrest warrant as precisely that.

Thoughts on this post? Comment below!

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Michel said...

Quite a bit to tackle!

1) The supposition is that pressure on Qaddafi will entrench him furthermore into his position. There's no evidence that Qaddafi would mollify his actions if he were faced with the threat of prison. More than likely, he currently faces the firing squad.

2) The Western bias. I'd certainly agree with you on a case by case basis but I'd argue that the ICC's track record is fairly good. It's far from perfect, but it's better than any domestic trial.

I'd argue to strengthen the ICC instead of weaken it in order to make it fairer across the board. I've actually discussed this indirectly on my own blog (while poking fun of Michael Coren) in regards to Ratko Mladic.

I'd prefer to give you bullet points on this but debating international relations doesn't lend itself to that.

bazie said...

Hi Michel, nice blog I like it.

1) I mean my point a bit more generally, with the recent Qaddafi case just as an example. For any given person it is hard to know if such an arrest warrant does or does not make the difference. Nonetheless, as an aggregate, the effect is legitimate. For example, as you point out Qaddafi likely faces severe domestic repercussions, perhaps it is those not the ICC ones that will be more likely to create an incentive to stay in power. I think it is fair to say generally that the fear of future prosecution and suffering does entrench dictators and create an incentive (perhaps the straw that changes their mind, perhaps not) for them to do everything they can to desperately stay in power. Note that international repercussions do have some more force than domestic ones because dictators are usually quite adept at getting out of their own country and the international ones have a little bit more force...although they can and do still easily hide away in other countries.

2) The problem with the ICC is just a limited scope on who it can (or at least tries to) prosecute. It handles itself quite fine at actually prosecuting the ones it attempts like Mladic as you mention. Obviously the simple fact that the US is not a signatory ensures that, but it goes deeper than this. It is also very recent. But the general trend of international law has been asymmetric going back to Nuremburg. A major western power is simply not going to be in question outside of the occasional low level scapegoat.

Now I certainly agree it should be strengthened. But it should be strengthened in a way that includes major world powers and legitimately holds them accountable for crimes.

Michel said...


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