The Libyan National Transitional Council's reception of Sudanese President Omar al-Bashir has sparked some consternation regarding the NTC's commitment to the rule-of-law given outstanding International Criminal Court warrant for Bashir's arrest. Fellow Georgetowner Daniel Solomon posted a very good response yesterday, arguing that the NTC's decision to welcome Bashir and spurn the ICC warrant is largely reflective of its overriding interest in maintaining good relations with its neighbor (which actively supported the anti-Gaddafi forces) rather than a massive rule-of-law failure. Certainly short-term political gains would overwhelm any ancillary benefit to the NTC for enforcing the ICC warrant, particularly seeing as Libya remains a non-signatory to the Rome Statute.
Yet as Daniel points out, the NTC has also been wary about ICC prosecution of Gaddafi-era crimes, preferring instead to prosecute through domestic courts. Does the NTC's avoidance of the ICC therefore say anything about its domestic rule-of-law commitment?
I argue that it might, though not in the way that one might expect. Paradoxically, political science theory suggests that a state with a recent history of civil war that has a strong commitment to rule-of-law will be less likely to bind itself to the ICC. The explanation lies in the intersection between the role of IOs and Libyan domestic political imperatives. Leaders are very careful about surrendering state sovereignty to international organizations and only do so when there is a clear political benefit. Credible commitment or "hand-tying" theories of international institutions emphasize the advantages of being restrained by an external actor. Governments may want to convince domestic audiences that they will refrain from a particular behavior but lack the ability to make that commitment believable. International agreements provide a means of signalling credibility since enforcement is no longer in the hands of the (untrustworthy) government.
Simmons and Danner (2010) (gated)(ungated but older) argue that the ICC is an example of such a "hand-tying" institution. Paradoxically, they find that nondemocracies and weak rule-of-law countries with a recent history of civil war are actually highly likely to sign on to the ICC but that democracies and states with strong rule-of-law that also have a recent history of civil war are some of the least likely to sign. Credible commitment theory provides an explanation for this pattern. Governments would like to signal to the various post-civil war factions (in particular their opponents) that they will refrain from committing atrocities (in order to prevent a return to civil war). However, without democratic accountability or strong rule of law, such signals tend to lack substance. The ICC therefore provides a means for constraining leaders that simply does not exist at the domestic level. When states do have these sorts of local commitment mechanisms, the incentives for joining the ICC decrease.
If the commitment explanation for state behavior is accurate, then the NTC's tenuous relationship with the International Criminal Court may suggest a belief by Libyan transitional leaders that their domestic reforms are a sufficient signal that they will not return to Gaddafi-style repression. Given the NTC's professed goal of establishing democratic and accountable institutions, one would expect Libya to be less likely to turn to the ICC as a post-civil war commitment mechanism, given that the sovereignty costs are still high, but the signalling benefits are not uniquely advantageous. However, the task of disarming militias and integrating fighters remains daunting and if not done properly, could increase the risk of renewed violence. Indeed, if the NTC begins to lack credibility in the eyes of some factions, then it may start looking outward to international organizations as a means of reassurance.
Certainly it is too early to predict the attitude of the new Libyan state toward the International Criminal Court. However, past research suggests that a state's level of commitment to the rule-of-law does not necessarily correspond to its level of commitment to international legal institutions. One should be wary about making direct inferences between the two as international organizations and domestic legal systems have very distinct purposes.