The time has come to demand a clear choice from Syrian regime officials. They should be clearly warned that their names are about to be referred to the ICC on charges of war crimes. It should be made clear that failure to participate in the political transition process will lead to an institutionalized legal straightjacket that would make it impossible for them to return to the international community. This should be feasible, even without Security Council agreement. Top regime officials should be left with no doubt that the window is rapidly closing on their ability to defect from the regime and avoid international prosecution.I think this is a fair point and matches up with a typical model of the kind of decision-making logic that Bashar al-Assad is facing right now. Hypothetically, he can choose to accept or reject an offer for mediation and exile. That's certainly worth a lot less than simply suppressing the opposition. However, it is probably worth more than a lifetime at the Hague were Assad to "lose" in a civil war. Absent ICC prosecution, Assad could simply take his chances and fight, keeping open the exile option once defeat becomes inevitable. But with the threat of ICC charges, an easy flight to exile becomes more difficult as fewer countries are suitable "safe havens." Moreover, a negotiated transition minimizes the risk that Assad will face a Gaddafi-like end if the opposition were to gain the upper hand. Threatening ICC prosecution provides a clear incentive to negotiate instead of continuing to fight the opposition by eliminating (or at least complicating) Assad's "out" (exile) if fighting fails. Below is a quick diagram of the two possible "games" between Assad and the opposition (one with the ICC and one without). Assad can either choose to reject or accept the ultimatum. If he rejects, he either "wins" or "loses" in a confrontation with the opposition.
To date, Syrian officials have not been referred to the ICC, in order to keep alive the prospect of a negotiated transition. Asad must have an exit strategy, by this thinking, or else he will fight to the death. However, Asad has shown no signs of being willing to take a political deal, and in any case, his crimes are now so extensive that he cannot have a place in the new Syrian political order. He should be forced to make a clear choice: He can step down and agree to a political transition now, and still have an opportunity for exile, or he can face international justice and permanent isolation. He should also be forced to make this choice quickly. Beyond Asad himself, the threatened indictments should be targeted to incentivize for those not named to rapidly abandon Asad and his inner circle in order to maintain their own viable political future.
In the first case, assuming equal probability of winning and losing, Assad chooses to reject negotiation. In the second case, with the same assumption, Assad accepts.
However, there are some flaws with this basic model. Namely, it ignores the commitment effect that following through on the ICC referral would create. By eliminating the option to flee, it essentially commits Assad to fighting the opposition to the end if he chooses to reject the offer. Observing this "forced" commitment, the opposition is faced with a choice - either back down or continue to challenge Assad, knowing that his regime has been backed into a corner. If the opposition is sufficiently risk-averse and worried about losing in a protracted conflict, they would likely reduce their protest activity (preferring to concede now rather than fight a futile struggle).
You may notice that I'm again referencing James Hollyer and Peter Rosendorff's work on why dictators sign the Convention Against Torture (also known as the "badass theory of torture"). I think it applies rather well in this case. Hollyer and Rosendorff argue that dictators ratify CAT in order to credibly signal that they will fight any challenge that could remove them from their position. Since they engage in torture, and since the CAT has compulsory jurisdiction, ensuring that they will likely be prosecuted if they try to seek exile abroad, dictators give up the option of backing down and leaving power. Dictators show their willingness to repress at all costs, and, as a result, face fewer challenges from domestic opposition groups. ICC prosecution against Assad, if actually credible, could have a similar effect. The model below shows an expanded version of the previous game:
Here, I've added two more decisions interposed between Assad's acceptance or rejection of the ultimatum and the final outcome of the Assad/opposition conflict. After Assad rejects the ultimatum, the opposition has to choose whether to continue challenging the government (fight) or conceding (a rather simplified choice). If the opposition fights, Assad independently has the choice of whether to also fight or resign/flee. Essentially, this is an entry/deterrence game added into the previous model. Assad would prefer to win by concession rather than by fighting. The opposition also is assumed to prefer conceding to losing a massive fight. Also, assume that the probability of winning and losing are equal (for now).
What happens when the threat of ICC prosecution is brought in? It essentially forecloses "fleeing" as an option for Assad. As long as there is some risk of winning a challenge, Assad will fight. As a result, the opposition cannot count on getting Assad to back down if challenged (its preferred option) and instead must risk a fight. If the expected value of Assad losing is less than the value of backing down, the opposition will likely reduce its pressure on the regime, which in turn gives Assad a strong incentive to reject.
In the first model, given a 50-50 chance of winning, Assad will reject and flee. There is no scenario were he accepts since there is a non-zero chance that the opposition could back down and still a good chance that he could win a challenge. It's also assumed that Assad would prefer to leave on his own terms rather than those negotiated for him.
In the second model, Assad could accept negotiation, but only if he has a high chance of losing were he to fight the opposition. Assuming than victory and defeat are equally likely (and that both actors have similar assessments of the likelihood of winning versus losing), the opposition in this model will back down (utility of 2 vs. expected value of 1.5 from fighting). If, given the somewhat arbitrary utilities I've created, the probability that the opposition "wins" a "fight" is greater than 67%, Assad will take the offer.
Obviously these models are highly simplified and assume perfect knowledge of the other actors' capabilities/strategy. The utilities themselves, while somewhat reflective of the priorities of each actor, are arbitrary and likely poorly weighted. Nevertheless, the models do highlight an important caveat to Lynch's argument for threatening Assad's exit strategy. If the Syrian government thinks that it could still successfully repress the opposition were it to reject a negotiated settlement, then permanently closing off exit routes for government officials would limit options for further negotiation by pushing Assad towards a "survive-or-else" strategy. At best this weakens the credibility of such a threat since the United States may not follow through for fear of limiting future. At worst, it ensures prolonged bloodshed and violence if Assad chooses to reject negotiation.
I think Lynch is right that threatening to cut off the Syrian regime's "golden parachute" can be an effective way of forcing a settlement, but it is a tactic to be used wisely and at a time when Assad would be most conducive to accepting. Moreover, it's unlikely that ICC prosecution will be significant enough of a threat since there are plenty of non-ratifiers which could possibly offer Assad and his coterie safe-haven (for example, Walter Russel Mead suggested Russia's Black Sea coast as the destination for a possible "getaway" vacation).
But most importantly, such a policy must compliment other non-military efforts to tip the balance of domestic and international opinion against Assad. The other strategies that Lynch outlines are crucial to making it less likely that, if faced with an ultimatum, Assad will choose to accept the costs of rejection and opt to fight the opposition to the bitter end.