Hurting stalemates and Two-level games
Since “Each national political leader appears at both game boards”, a timely and sequential alignment of domestic political tensions made the stalemate more hurting for all parties – the situation shared the “ripeness” across all constituency at the same time. The concept of a ripe moment centers on the parties’ perception of a mutually hurting stalemate. For instance, in the US the families of the 189 American citizens who lost their lives actively lobbied the Congress and generated poignant public sentiments towards the issue.
The domestic demand to have the accused tried in the US posed severe challenges to the US negotiators, restricting their ZOPA. Similar domestic pressures were felt in the UK. The issue continued to remain in the frontline due to efforts of the friends and families of the victims. Dr. Jim Swires, who lost his daughter in the tragedy formed the organization UK families fight 103 Victims. Frustrated by the pace of the negotiations, he enlisted the help of an Egyptian journalist Nabil Nagemeldin to arrange the logistics and meet Qaddafi himself.
While the UK government refused to negotiate with Qadaffi, Dr.Swire meet with the Colonel three times between 1991 and 1997. According to Dr.Swire, Qaddafi steadfastly defended his citizen’s innocence, ”his position at the time was that Libya had nothing to do with it”. In Libya, the avalanche of sanctions had a significant impact on the country’s economy. While an eventual sanction fatigue allowed Qaddafi to leverage his network to sell oil in the black market to fund his WMD program, the citizen’s hardships were exacerbating.
With years of sanctions, the lethargy was only expected, and unrest was on the rise. The change in his home country politics had a visible impact in tempering Qaddafi’s eccentricities.
By 1996, the domestic dimensionality in all the countries pointed towards a quick resolution to the issue and provided leverage to the negotiators. Negotiators in UK and US were able to convince Libya that they would not get the support for a Libyan trial at their home (consciously limiting their options) while Libya said a trial of Libyan citizens in the US or UK soil is unacceptable and against international law, thus narrowing the win-set to a “third-country trial” deal.
“Ripening” signals the most opportune time to alter the rules of the game. Parties can be added and subtracted from the table to break a no-agreement impasse as well as to generate new joint gains. Mandela’s much-publicized visit to Tripoli in 1997 was such a turning point in this negotiation. He was approached by the Organization of African Unity and Non-Aligned Movement to mediate. Nelson Mandela was the apt choice for several reasons; he and Qaddafi had both ran revolutionary missions in their country, and Libya had supported Mandela’s Pan African Congress.
On his arrival, Mandela presented Qadaffi with the medal of Good hope, the highest honor bestowed on a foreign national by South Africa and proclaimed Qadaffi a “moral leader”. This action set two channels of diplomacy in motion to resolve the stalemate. Firstly, Mandela’s chief of Staff Jakes Gerwel teamed up with Saudi Arabia’s ambassador to the US, Prince Bin Salman to generate interest groups in UK and US respectively (Sadam’s invasion of Kuwait had played onto the geostrategic fears of the Saudis who were now incentivized to engage). Various channels of track 1, 1.5 and Track 2 were experimented with, and Mandela himself raised the issue on March of 1998 during President Clinton’s visit to Johannesburg and traveled several times to the UK to meet with Robin Cooke, the Foreign Secretary. The second channel of diplomacy was set in motion between the US, UK, who was thrown on the defense their actions for the first time, and the international community.
Mandela’s public support gave voice to Libya’s grievances and established open and truthful communication between the Colonel and Mandela. He established himself as an impartial mediator by criticizing UK’s demands to be the “complainant, prosecutor and judge” as absurd and unpragmatic. Mandela’s stature in the international community served as a megaphone to this appeal of justice and fairness. Meanwhile, Prince Bandar Bin Sultan coalesced top-level officials towards pursuing constructive diplomacy, opening new ranks of negotiations in Washington.
When U.S-UK stated that they were unwilling to negotiate with Libya who had till then consistently disobeyed global norms and vehemently expressed their doubts that Libya would deliver on its promises, Mandela expended his moral capital in acting as a guarantee to Qadaffi’s compliance to a deal and assuage Western suspicion. This rendered any Western defense based on Libya’s previous intransigence redundant and maligning to Mandela. When the U.S continued to resist negotiations, rebuking the third country trial as a “bluff”, Jakes Gerwel reasoned with them. “you have nothing to lose” he said as “Mandela and Prince Salman would be only one to lose face” if Libya defected. However, through this action, he was also able to call on US bluff to never accept a third country trial. As for the Libyans, convinced that U.S-U.K’s arrogance would not renege them to concede on their demands, they had asserted the third party country solution as acceptable. This miscalculation on both sides that the other was “bluffing” was leveraged by Prince Salman and Mandela whose creative diplomacy finally secured consensus on a third country trial.
The merit in this mediation was in successfully reducing the number of demands on the table by both sides and convincing each side of the other’s reservation price so that a piecemeal approach could be implemented by agreeing on broader principles such as the third-party trial before proceeding to details of compensation. Mediation manhandled negotiations into a zone of possible agreement. While attempts to create joint pay-offs and expand the Pareto frontier were unsuccessful, mediation, in this scenario, helped curb the loss incurred from the mutually hurting stalemate.
Part III: Qualms, Traps, and Clarifications
Once the shuttle diplomacy between Mandela, Grewal, Bandar, and Qadaffi produced consensus on the third county trial, the onus of the trial was on the UK and US. Unable to backtrack from their initial position that the trial needs to be conducted in adherence to the provisions of the UN resolution, US-UK was caught in an anchor trap. This “resolution trap” called for the creation of a “Scottish court to try the accused by Scottish law and procedures”, now in the neutral country.
Series of unglamorous negotiations between the UK- Dutch brought an agreement to operationalize the third country trial. An agreement was reached on the transfer of the accused to Scottish jurisdiction once they landed in the Netherlands using existing extradition treaties and the legal basis for the exercise of foreign criminal law in Netherland. Camp Zeist, a former World war II air base was selected to host the court. Secretary Robin Cook described the plan as a ”historic innovation in international legal practice”. The nitty gritty of this negotiation went into the limits of jurisdictional powers of the Scottish court and guarantees that the trail would be a one-time event. The longest part of the negotiations was eschewed in gaining consensus on diplomatic privileges, immunities, and cost.
The anchoring prevented the US from directly communicating with Qadaffi even when the deal was on the horizon. UK had wanted to pursue direct talks with Qadaffi from start but was forced to stand down due to US pressure. Several times during the negotiation, Mandela carried letters from Qadaffi to Tony Blair, and the leaders often exchanged greetings and holidays wishes.
”For months we had to go around clarifying things. For example, if the people were found guilty, where would they be kept? So the U.S. is saying we won’t negotiate further, but Qaddafi is not going to hand over these people until we clarify these things”.Once an agreement was reached on third country trial, the issue of imprisonment became the new roadblock.
On the same day as agreeing to the trial, the US-UK presented a document to the UNSC outlining their plan, which included imprisoning the two men, if convicted, in the UK and resurfaced the demand that any witnesses called from Libya be included in the proceedings. Secretary Of State Madeline Albright framed it as an ultimatum and said the offer was a “take it or leave it” proposition and warned that it was not subject to “negotiation or change, nor should it be the subject of any additional foot-dragging or delay”. The refusal to negotiate further left many answered questions since the US had not negotiated with Libya to begin with and their last-minute ultimatum proposed to haul the efforts of many others. US spoiler move created frustration in all quarters.
The Arab league called it a “provocation” (1999). In response, Qadaffi sent letters to the London embassy rejecting all plans of imprisonment in the UK and explained in an attempt to rationalize to his opponent that the pointing of holding out against the sanctions for years was to ensure that the intelligence officers were not imprisoned and interrogated in the UK. Forced to deliver on the ultimatum, US-UK presented “US-UK initiative” to the UNSC. UNSC adopted the plan and declared that all options of punishment to non-compliance, including military action, is under consideration.
Bringing negotiations to a standstill close to the deal, the next phase of negotiations was mediated by UNGC Kofi Annan. Called on to weigh in on the UNSC ultimatum on Libya, Annan did not formally support the deadline but was forced to acknowledge that 30 days was “reasonable period” for Libya to decide. However, he did not wait around but opened new rounds of talks involving the Saudis, Mandela, and Qadaffi.
The mediators, Annan and Mandela were able to convince Qaddafi that imprisonment should not be a concern that should prevent an agreement at this juncture and briefed him that a Scottish trial is a preferred alternative to many. Scottish system was stringent that no one may be convicted without corroboration and could issue three possible verdicts: “proven,” “not proven,” and “not guilty.” Meanwhile, Kofi Annan also convinced US-UK to agree to an immediate suspension of sanctions if Libya agreed to the US-UK plan. This was a trade-off, that was not offered in the ultimatum. The UNSC tasked Kofi Anan with verifying and reporting to the council of the successful prisoner handover. Mediation made the hard-line ultimatum softer and the consequence more palatable to Libya breaking the second stalemate.
While there is general agreement that ripeness is one of the most propitious condition for a resolution, analyzing Lockerbie negotiations, I learned that ripeness is a necessary but not sufficient condition for the initiation of negotiation. It is a condition that is neither self-fulfilling or self-implementing but needs to be seized, either directly by the parties or, if not, through the persuasion of a mediator. In this scenario, ripeness had set in for years before it had an impact on the readiness of the parties to exploit opportunities. It was only in 1997 when Mandela was able to siege the stalemate and bring momentum back into the negotiations.
The fatalistic effects of heuristics and bounded rationality were prominent during the bargaining and haggling phase and were gradually assuaged through iterative interactions, at least amidst the negotiators. Open and truthful exchanges between Mandela, Qaddafi, Prince Salman, and Anan was able to undo some of the cognitive biases imposed by heuristics and bounded rationality. Moreover, the salience of “two-level games” was undisputable at various possible configurations of negotiations. Understanding the others’ home constituency can provide insights into their ZOPA, interests, and positions, and help the negotiator navigate between various bargaining outcomes. The US was able to accurately calculate the domestic pressure on Qaddafi by the late 90s to remove the sanctions and hence, to double-down on their demands, and renegage on the last consensus.
Asymmetry of interests is also equally important to the discussion of this negotiation as the asymmetry of power. Negotiations can be foot-dragged when one party is not equitably invested or decides to play spoiler. For instance, the negotiations were sidelined by the US during its hunt for Salaam Hussein during the early 90s, leading to protracted delays. The differential in interests remained disparate till the end. US-UK was able to get more concessions through a calculated call for an ultimatum in the final stages by exploiting Qadaffi’s greater proclivity to close a deal at the juncture. On a side note, the ultimatum served other US interests too. By serving an ultimatum, Madeline Albright was able to postpone a US decision on the third-country proposal till the deadline. By proposing new conditions, she was scavenging for time to generate consensus within US factions.
Process analysis would be more helpful in understanding the strategic role the UNSC played in this negotiation. “Matching the forum to the fuss” offered many latent advantages Sander Advances: Negotiation Analysis Page 24 of 34 Ch 23 V05 and Goldberg, 1994)
. UNSC was the most powerful platform for the US to positionally bargain without divulging its interests. Learning early on that a US trial option was unviable, they believed that once conviction of guilt was passed by the Scottish court, it would be easy to apply for extradition from the UK and try the convicts for the death penalty in a US court. This required US to play a very sly game. The double jeopardy clause in the US law prevented the trial of a person for the same cause twice, hence it was coveted that the trial was a “Scottish trial”. Further, this decision played very well into their long-term strategy of “anchoring”.
Parties aim to gain an edge by making the first offer and anchoring the discussion in their favor. The Lockerbie negotiations is an apt example of successful anchoring. In this case, US was able to gain all its demands by anchoring effectively. In the light of Raiffa’s theory, anchoring worked in this situation because the US interests remained the same throughout the trial. The tactic was also successful because Libya was unable to defuse the anchor diplomatically nor by force by initiating direct interactions with the US. The “resolution trap” though frustrating to the other actors, helped the US ground its demands and flaunt its determination to not concede. The last-phase ultimatum was a dirty play, but it brought sufficient unexpected pressure on Qaddafi, who was starting feel the hose around this neck loosen, forcing him to concede to an important demand, the Scottish prison sentence. US-UK was able to leverage the sanction fatigue of Libya and the fortuity of the negotiation phase to make demands within Libya’s reservation price. In essence, US played the bad cop, threatening to be the last-minute spoiler and tasked Annan to be the good cop to broker a deal that accommodated all US-UK demands with some adaptations; A Scottish trial in a Scottish court (now in the Netherlands) and imprisonment in the UK, if found guilty.