The Bargaining Problem in Libya: Peace versus Justice?

I have recently read the post ICC Sheriff Too Quick on the Draw by guest contributors Leslie Vinjamuri and Jack Snyder for The Duck of Minerva blog and I couldn’t agree more. Actually, I had many discussions on the topic of Libya and asserted the same preoccupations put forward by the two scholars, but never took the time to bring them to this blog, what I intend to fix right away. I shall reinforce the argument presented in their post and add my own conclusions and further a bit more into consequences of the bargain problem to the achievement of conflict resolution in the Libyan case. Let’s hit it.

Since the beginning of the uprising in Libya and the western commitment to help the insurgents get rid of Gaddafi, clear signals were sent regarding a possible prosecution of the de jure leader by international law, namely by the International Criminal Court. On May 4th, Luís Moreno-Ocampo, ICCs chief prosecutor, went to the United Nations Security Council to report on the investigations by the body on Libya, and what he has found is that “crimes against humanity have been and continue to be committed in Libya” – this should be no surprise to anyone but to Gaddafi and his entourage. What isn’t being noticed is that, this and the following statement of intentions to prosecute issue pre-trial arrest warrants to three key people on the Gaddafi government is a big kick in the nuts for everyone really worried about the outcome of the conflict and the end of violence between warring parties.

One supposedly doesn’t have to be a great mind to understand what stalemate and deadlock are. But it seems that countries and bureaucrats involved in decision-making within the UN aren’t aware of those concepts. First and foremost, stalemate means that you are in a “can’t-help-it-situation” and, by default, breaking the stalemate is much more difficult than avoiding it. Stalemates also have the property of being very dangerous when survival is the issue at the end of the day. Here rational choice theory applied to political violence comes in to explain what are the incentives, motivations and limits to the fulfilling of options by the players. To better put it, the idea of taking this to politics and conflict resolution (supposing you are into resolving the conflict), is to avoid pushing the players to positions unacceptable for them, in which no cooperation (in a game theory sense, not in a institutionalist one) is possible, and therefore “play” with incentives and punishment to compel parties to stop violence.

What is happening in Libya is exactly the contrary. While Western efforts do not seem to assure the end of the conflict by force, the incentives given to Gaddafi to step down are also very scarce. Actually, they point to the contrary: peacefully exiting power is the worst thing he could do – for him and for his friends. Even after No-fly zone and No-fly zone +, no palpable result for the conflict seems to be in the horizon, specially if the rules of the game (such as “we’re not going to directly bomb Gaddafi”) are maintained.  The situation becomes a stalemate, in this case, because at the same time the Western supports the Libyan rebels and embraces their principle of not reaching an agreement with Gaddafi and demanding to see him completely extricated from any decency, but they don’t grant the necessary measures to achieve those aims.

Just for the sake of it, I’ll list some thinkable (even if partially flawed) possibilities: 1) significantly arm the rebels, allowing them to break the stalemate themselves by forcing military defeat through a protracted war; 2) bomb the hell out of Gaddafi’s Libya, producing unequivocal military defeat of the Colonel’s forces; 3) quietly, precisely and quickly kill all the core members of Gaddafi’s government; 4) bring full Western engagement to Libya, landing a massive army with the objective of disabling Gaddafi’s military and political power by occupation, and, by the gates of one of his palaces, arrest him out of throne. Let’s quickly run them one by one.

1) Arming the rebels: this is already happening, but not enough to fulfill their needs; conflict is far from being defined and it seems more and more to be leading to a military equation very hard to solve.

2) Bombing the hell out of Gaddafi’s Libya: does anyone feel comfortable with doing it?

3) Quietly killing Gaddafi and his guys in a decapitation strike: we still have the “we won’t kill Gaddafi” rule in order.

4) Bringing full Western engagement and occupying Libya: anyone remember Afghanistan? What about the big economic crisis?

Phew. Quickly enough. Well, have we run out of options then? No. We still have the possibility of finding a viable negotiated exit, by pressing (but not too much) Gaddafi out of power. How? By balancing incentives and punishment to make him feel that stepping down without creating more resistance is the less-than-worst situation, and – here comes the important bit -, less-than-worst but still acceptable. It is possible and much cheaper (politically, economically and militarily), as well as in terms of the lives lost and the collateral damage produced.

So, what’s all the fuss about having Gaddafi prosecuted as a war criminal? No fuss, at least for me and you, in the short term, unless you are: a) a taxpayer or in the military service in Europe or in the the US; or 2) if you are Libyan! Ok, maybe you are.

The main problem with the ICC prosecution of Gaddafi is the signal it sends. Basically, what it says is: “Hey, Gaddafi, step down and your future is spending the rest of your life in a small cell in the Netherlands”. How this contributes to making him peacefully step down is what I don’t see. If he knows this is what awaits him outside Libya, it’s hard to tell whether he’ll prefer this or death, and if he prefers death how much damage he will produce to the country and how much cost he’ll impose for the West while pursuing it. For what we know about these guys and especially the Colonel (Lockerbie anyone?), I’d bet he’ll drag everyone and everything he can with him while holding on to the intent to survive, especially because he knows he’s going down either way. Because people act like this. People suck.

By allowing the ICC to proceed with the prosecution, UNSC limits steeply its possibilities. It reduces the probability of a negotiated exit and the space for maneuver, raising the stakes for Gaddafi and his friends but pushing it too far. While raising the stakes is what we need, it needs to be done considering how we allow the gambler to fold and withdraw without breaking chairs and tables. While combining “the promise of relief and the threat of punishment”, it is possible to bring players to a rational choice of stopping it. Just remember that this exact same type of strategy worked very well just a few years ago to bring Gaddafi back in from the cold of international pariah status, reversing his nuclear policies and establishing a working relationship with the West.

And to answer the title’s question: in Libya, we shall have peace or the absence of it. No justice is likely to be made, as it happens mostly with any war crimes. This might sound a bit like reverse advertising, but hopefully the relevant authorities will decide on solutions other than the Worst Case Scenario for Libya.

Which by the way, bringing back an old friend of the blog – our Worst Case Scenario is: Gaddafi is prosecuted by the ICC, and immediately escalates conflict in the Libyan civil war. With help by the West staying equal or not changing steeply, protracted, violent and harsh conflict settles in, scaling massive scourges of war to the country, with consequences to the region. NATO and EU are pulled into deploying full resources to avoid total madness in Northern Africa, just by the gates of Europe, while still more than sufficiently engaged in Afghanistan and barely surviving the financial crisis.

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