This week, as part of my “Theory and Beer” meeting with doctoral students, we considered Michael Gilligan’s thought-provoking formal theory article on the International Criminal Court, published two years ago in International Organization.

Gilligan uses a formal model to “test” whether the International Criminal Court can be an effective judicial institution given that it has no police arm and, as is so clear with respect to Darfur, cannot force states to extradite indictees.

His argument in a nutshell:

“Although the institution has no enforcement power, some leaders (those with such a high probability of being deposed that they would willingly surrender to the institution rather than try to stay in office) will be punished by it [because] in those circumstances… foreign state(s) have no incentive to offer the leader asylum. [Thus], the institution may deter some atrocities at the margin.”

In other words, if atrocity-committing dictators are about to be deposed they will prefer some form of exile to the possibility of torture and execution; they will prefer exile in freedom in a third party state, but they will turn themselves over to a court if third party states do not offer them exile; and such states would have less incentive to make such offers, presumably, now that a plausible alternative – jail in the Hague – is available as a means of removing said dictator.

Gilligan’s model works flawlessly, given its assumptions, but those assumptions are not well substantiated in his piece. In particular his argument hinges on the idea that “foreign countries prefer not to have atrocity-committing dictators in power in other countries and so cannot credibly commit to deny asylum to an asylum-seeking human rights abuser” (p. 943).

I can see at least two problems with this assumption. First, I see no basis for thinking foreign countries care a whit for atrocity-committing dictators remaining in power. If they did, why would they wait until the person was about to be deposed to try to buy them off? Second, I am unconvinced that decisions to extend exile are based on the desire to remove them from power. There are many other possible explanations, the most banal of which is that many other sitting heads of government will have personal connections to any particular dictator as they are all part of the diplomatic club. Why else wouldn’t they be just as satisfied to see the dictator killed Samuel Doe style by the angry hordes?

Some interesting recent evidence that the “third-party exile” norm is well-entrenched: Malaysia has just offered exile to embattled Zimbabwean President Mugabe. Admittedly it’s not a fair test of Gilligan’s model since the ICC hasn’t indicted Mugabe for anything. But does Gilligan really think that if it had, Malaysia would not still be “welcoming Mugabe with open arms?”

If the incoming President ratifies the ICC Statute and the Prosecutor issues an indictment, this event may yet provide a helpful test of Gilligan’s model. In that case the question would be whether Malaysia is willing to extradite. My guess: without amending the ICC statute to make it an international crime to “harbor former dictators” Gilligan’s model won’t matter much even if it’s right. Anyway, until we see some empirical data, a study like this remains purely abstract and nonsensical.