The violence in the Ivory Coast that has left more than 1,300 dead since last November's presidential election may soon be coming to an end. Incumbent President Laurent Gbagbo, who refused to cede power after losing in the polls to Alassane Ouattara, is reportedly negotiating the terms of his surrender after a week-long offensive by pro-Ouattara forces.
What's puzzling about how this conflict is ending is why Gbagbo didn't leave sooner, especially after African Union leaders had offered him immunity several times if he agreed to go into exile in South Africa. With 80% of Ivorian territory taken by pro-Ouattara forces and mass defections from the army and police, he must have known his regime was on its last legs.
Yet what looks at first glance like an irrational response by Gbagbo was more likely a carefully considered decision. In the past, Africa's deposed heads of state could count on a comfortable exile in a friendly country, secure in the knowledge that they had immunity from prosecution. But since the International Criminal Court (ICC) was established in 2002, rulers who have committed war crimes or human rights violations against their own people have found their exile options substantially diminished. For Gbagbo, the question of how secure he will be from ICC prosecution will no doubt play a critical role in surrender negotiations and considerations of exile.
No one wants to see war crimes go unpunished. But in cases like the Ivory Coast and Libya - where war crimes have already been committed and the killing is certain to continue if the ruler remains in power - exiling a murderous leader may be the least worst option.
Without the option of exile, a ruler has no exit options once the first war crime is committed. Once this threshold is crossed, committing further war crimes will still lead to the same long and humiliating trial, which will almost certainly be followed by life in jail. Libya's Moammar Gaddafi knows this. As he sees it, it is regrettable but necessary that thousands of people will die as a consequence of his decision to fight to the end.
Part of the rationale in establishing the ICC was to deter those in power from committing atrocities. The threat of prosecution was expected to make rulers think twice before massacring innocent civilians. But as Gbagbo, Gaddafi and other despotic leaders have shown, the possibility of ICC prosecution at some future time is not always enough to deter mass killings.
Eliminating the exile option for those who commit war crimes is a progressive step forward. In the long run, standards of behavior for all leaders will align with the standards set by the ICC. But this evolution will take time.
Depending on the severity of the atrocities already committed and the health of the ruler, we might consider allowing a head of state to negotiate a number of "freedom years" before facing ICC prosecution. The number of freedom years would need to strike a balance between satisfying a population's thirst for justice and providing enough incentive to entice a violent leader to leave.
Once the freedom years are up, the host state would be responsible for handing over the individual to the ICC. Over time, as the norms of the ICC gradually take root, the period of negotiated immunity would decline.
Based on what has been reported in the media about the sorts of war crimes that Gaddafi and Gbagbo may have committed, the international community might offer them two to five freedom years. If endorsed and guaranteed by the ICC, the United Nations Security Council, or powerful states, this form of temporary exile could provide a credible exit option. Such an option has its limitations, but it may at times be the only way to prevent further mass casualties.
