The Bargain Theory of War

by Eric Posner

John’s most recent post raises the question of the nature of the “bargain” theory, as he puts it, of the Geneva Conventions:

In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore the laws of war, and you cannot seek the status given to lawful combatants. POW status is perhaps best seen then as an incentive to follow the rules in armed conflict.


I like this theory, but it is worth pointing out that many people do not like it, as it is in tension with the universalistic aspirations of human rights law, and perhaps of the laws of war themselves. It is worth considering whether the bargain theory is really sustainable.

The implicit premise of the bargain theory is that belligerents (including non-state actors) on both sides of a conflict are worse off if they use the most aggressive tactics and weapons at their disposal, than if they engage in mutual restraint. Consider the tactic of dressing like civilians. A military force, especially a guerilla group, can gain much from engaging in this tactic. The soldiers, by disguising themselves as civilians, might avoid being detected until they have obtained a tactical advantage. They also might induce the other side to kill civilians, which may reduce its support among the local population. Also, of course, an impoverished guerilla group saves the costs of purchasing and maintaining uniforms. I believe that the German army, during the Battle of the Bulge, adopted this tactic in order to penetrate allied lines. But regular armies tend to prefer to wear uniforms for a variety of practical reasons, and so dressing like civilians is mainly a tactic of insurgencies and guerillas.

If soldiers on one side only can use the tactic of disguising soldiers as civilians, then that side gains a militarily advantage. So predictably soldiers on the other side would adopt this or similar tactics in return. The result is that neither side will gain an advantage, while the war will be generally more destructive, with more civilians killed as a result of the confusion about who is a combatant and who is not. The laws of war thus prohibit soldiers from disguising themselves as civilians, an effort to give both sides an incentive to choose less destructive rather than more destructive military tactics. This logic can be extended to many of the other rules in the Geneva and Hague Conventions, as well as the general principles of the laws of war.

But if this is true, it necessarily follows that when one side breaks the rules, the other side must respond in kind. In the current conflict, the United States retaliates against al Qaida, and on John’s theory, the Taliban, for their violations of the laws of war, by depriving captured combatants of POW status—which seems more reasonable and effective than responding in kind by dressing American soldiers in civilian clothes, which in any event is prohibited (as well as pointless). The lack of command structure, if that is the case, is also a key point: if there is no command structure, then American forces cannot expect the enemy to reciprocate America’s own self-restraint, as required by the laws of war. So, again, under the bargain theory, there is no reason for the U.S. to extend POW protections to enemy combatants.

The logic extends farther than the position of the American government, however. The bargain theory, as described by John, gives the victim of law-of-war violations (the United States, here) only one, rather weak tool, for retaliation—elimination of POW status, plus the right to punish war criminals if they are captured. Yet the logic of the bargain theory implies that if this tool is too weak, the United States ought to be allowed to do much more. Put differently, if al Qaida and the Taliban have violated their side of the “bargain,” why should the United States comply with its side of the bargain? Why should the United States feel bound by any of the laws of war in the conflict in Afghanistan, including common Article 3 and, for that matter, the traditional law-of-war principles of proportionality and necessity? If the United States—and other countries, too—made clear that they would retaliate against law-breaking states and non-state entities, by refusing to extend any of the protections of the Geneva Conventions to the law-breakers, wouldn’t this threat in the long run reduce, rather than increase, the costs of war, by more effectively deterring belligerents from breaking the laws of war? This is what the bargain theory implies.

Of course, the Geneva Conventions do not permit such reprisals. They give the bargain theory only limited play by restricting the ways that a belligerent can retaliate for law-breaking on the other side. History, on the other hand, shows that tit-for-tat retaliation for violations of the laws of war has been common. If the bargain theory is accepted, the Geneva Conventions are open to criticism, for excessively restricting reprisals, and the effort to interpret them aggressively as reflecting the bargain theory to a greater extent than they explicitly do, can be defended as bringing them into line with historical practice and the moral logic of the bargain theory.

This is, I think, the source of the uneasiness that many people feel about the bargain theory in general, as well as the type of argument that John has made. It also explains why so many people reject the bargain theory and argue that a belligerent must comply with certain constraints regardless of how the other side acts. This kind of thinking makes no sense from the perspective of the bargain theory because it simply gives the other side a license to do whatever it wants, so that civilians will be worse off in the long run. On the other hand, no government seems willing to explicitly endorse the bargain theory all the way down, suggesting that the bargain theory, at some level, is not politically sustainable.

The reason, then, that some advocate treating all captured belligerents as POWs, and the like, is that they implicitly reject the bargain theory and embrace instead a universalistic interpretation of the laws of war, according to which people have certain basic rights regardless of whether they take the bargain. Ironically, John does not reject this universalistic view: he simply argues that those basic rights are more limited than his critics say they are. But, if this is right, then the argument should be about the scope of the bargain theory, and the location of the floor—those rights that one cannot give up no matter how bad one’s conduct—and John cannot expect his critics to accept the bargain theory without further defense.

Consider again the quotation with which I started. The quotation above sounds reasonable (and I believe it is reasonable) but the choice made by, say, a Taliban soldier is either to obey his commander or not obey his commander, which I suspect is not a choice at all. An ordinary soldier cannot be expected to decide to purchase a uniform and wear it in defiance of the orders of his superior, and while his comrades continue to wear civilian clothes. (And what uniform would he buy, anyway?) So it is the Taliban leadership that decides whether to accept the bargain, while the low-level soldiers bear the consequences of the leadership’s choice. Such is always the case in war, but this is another reason why many readers will reject the bargain theory in the hope that, somehow, the universalistic view can be made to stick.

http://opiniojuris.org/2007/01/17/the-bargain-theory-of-war/

8 Responses

  1. As someone without legal expertise, my reaction to John Bellinger’s argument (and the policies of the Bush administration) is that it is a mistake to try to justify our abusive treatment of detainees with narrow rationales and legal definitions. Better instead to simply ask ourselves, “Is it wise and effective policy that is in the best long-term interests of the United States?” I suggest that the answer is a resounding NO.

    Our dreadful treatment of detainees at Abu Gihrab and GITMO (and god knows where else) has not helped to advance our military objectives. But it has alienated many of our traditional allies, and undermined our credibility in the international community. It will take decades, if not centuries, to undo the damage to America’s lustre that has been caused by the moral failings of the Bush administration. We have surrendered the high ground, and getting it back will not be easy.

  2. Bargain theory analysis might go a little farther to an issue of auto-interpretation. One of the things Mr. Bellinger’s post makes me think of is the international contracting party that interprets an agreement according to its own law. The other party interprets the agreement according to its own law also. Some confusion arises as to what is the meaning of the obligations in the contract because of those mindsets. This is one of the reasons for choice of law provisions. On the international plane between states, consensus visions of what an agreement covers are the mechanisms to give stable interpretations of instruments. Now, I sense that Mr. Bellinger and others are not just playing some bargain theory notion but are really trying to rewrite the bargain to which the US is a party in a manner that is thought of as being convenient for US purposes but which pulls us away from international consensus approaches to the instrument. And in doing that we feel we have the wherewithal to have others acquiesce in that reinterpreted view. That’s just good old power politics. It would seem the obvious response is for internal and external persons and members of governments to try to bring the US back to the bargain it entered by resisting these novel approaches that appear a bit self-serving.

    I think the options when one side acts badly are not as limited as they are expressed – another one is that the people rally to you for not acting that way and you win. Hearts and minds. At Abu Ghraib we lost them all over the world and it was not because of a “few bad apples.”

    Best,

    Ben

  3. Ben stated:

    On the international plane between states, consensus visions of what an agreement covers are the mechanisms to give stable interpretations of instruments. Now, I sense that Mr. Bellinger and others are not just playing some bargain theory notion but are really trying to rewrite the bargain to which the US is a party in a manner that is thought of as being convenient for US purposes but which pulls us away from international consensus approaches to the instrument.

    I suspect that Ben is right….especially given the strong likelihood that Mr. Bellinger’s view are entirely inconsistent with those of career legal diplomats from the State Department. One should not forget that Mr. Bellinger has only been associated with the State Department since 2005. Prior to that, according to his State Department biography, “[f]rom February 2001 to January 2005, Mr. Bellinger served as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House.”

    In other words, Bellinger was part of the “legal” cabal that included such luminaries as John Yoo that found a legal basis for torture, indefinite detention of US citizens without access to counsel, warrantless wiretapping of American citizens (and the notorious Total Information Awareness program), etc. Indeed, given that Bellinger’s predecessor in his current position, William Howard Taft IV, unsuccessfully argued that “[e]ven those terrorists captured in Afghanistan … are entitled to the fundamental humane treatment standards of … the Geneva Conventions,” (Jan 23, 2002 memo) in response to White House attempts to deny detainees basic human rights, I think its fair to say that until Belliger’s appointment the State Department’s legal position was consistent with the “stable interpretations of instruments” consensus of the rest of the world.

    So while its certainly interesting to know how the current occupant of the White House legally “justifies” unlimited detention, torture, and the denial of basic human rights to accused terrorists (including innocent people) caught up in our nation’s anti-terrorist hysteria, it would probably be unfair to tar the career lawyers in the State Department with those opinions, or to assume that Bellinger’s legal opinions are shared with more than a small minority of State Department lawyers who have spent their careers on questions of international law and US treaty obligations under the Geneva conventions.

  4. as it is in tension with the universalistic aspirations of human rights law, and perhaps of the laws of war themselves.

    Well, yes, that would be my primary problem with it, that a reasonable reading of the Geneva Conventions seems to specifically bar such retaliatory behavior. Furthermore, the binding nature of the treaty, such that it is in effect even if one party is not signatory or honoring it, seems to weight heavily against such an interpretation.

    Mind you, that’s not to say the laws of war shouldn’t be as such, but I have little hope of change. The Geneva Conventions border on holy writ these days, and I see little to no lobby to change them. Any new measure put forth would bear the taint of withdrawing from the original treaties, and would likely be seen as anathema.

    Regarding “global yokel”‘s statement, I would suggest that subjecting all laws of war to the test of “does it maximize the advantage of the United States?” is to defeat the purposes of international law entirely.

  5. Eric,

    Just a point of clarification. It is only partly correct to say that “the Geneva Conventions do not permit such reprisals. They give the bargain theory only limited play by restricting the ways that a belligerent can retaliate for law-breaking on the other side. “ The 1949 Geneva Conventions prohibit reprisals against protected persons eg POWs, civilians under enemy control but do not prohibit reprisals against civilians not under enemy control. Reprisals against all civilians are prohibited by Art. 51(6) the 1977 Additional Protocol I to the GC but it is doubtful whether this prohibition is customary international law. The ICTY and the ICRC have argued that this provision represents customary law but a number of States including the UK have rejected this view. The UK has made a reservation to this provision, a reservation that was reasserted when the UK published its Manual of Military Law in 2005.

    The upshot of all of this Eric is right that there is a strong trend in IHL to limit what he describes as the bargain theory. However, complete abadonment of this theory is not accepted by all. The reason the UK insists on a right to take reprisals against civilians is that views the threat of such reprisals as the ultimate way in which , as a last resort, compliance with IHL can be enforced.

  6. As a point of illustration, the Germans sent a unit (under the command of Otto Skorzeny) into the American rear to wreak havoc. To make this more effective they dressed in American uniforms (not civilian attire) so they could blend in, and sow confusion by such things as re-arranging roadsigns (which would scramble re-supply, and cause the higher command to lose track of units, keep re-inforcments from arriving where needed, kill small unit commanders, and generally wreak logistical havoc on the Allies, in the hope of making a breakout possible.

    The Conventions addresses how such mis-uses of uniform are to be dealt with.

    It also addresses how to deal with persons who fail to adhere to the Conventions,and (in my professional opinion as an interrogator) the category of, “unlawful combatant” doesn’t allow the sorts of treatment we are engaging in.

  7. Matthew Gross,

    Thanks for your response. I did not mean to imply that “Is it good for the USA?” should be the litmus test for policy. What I hoped to convey was the notion that getting embroiled in detailed legal conversations and the fine points of the Geneva Convention is an interesting intellectual exercise, but a little moral clarity would go a long way in this instance. One does not need to be particularly well-informed on the complexities of international law to understand that the policies of the Bush administration as regards detainees are both immoral and not in the best interest of the United States.

  8. Does the strict bargain theory actually work? “If you commit atrocities, we’ll commit atrocities right back”–does it ever happen that the other side is convinced to *stop* committing atrocities? I suppose there must be some examples, but much, much more often it seems to only escalate.

    (I realize that sustained atrocities–up to the point of genocide–can lead to surrender. But that’s not really the same thing. Yes, if you kill everyone on the other side, you’ll “win,” but this isn’t the same thing as the other side deciding to obey Geneva after all.)

    International law is more like criminal law than like contract law, as far as what you’re actually trying to prevent. You need to punish violations somehow, but saying “okay, Hatfields, you can take it out on the McCoys’”, “okay, McCoys, your turn.” is really not going to work.

    This is particularly true when you’re talking about a terrorist group that hides among civilians. When they do that, yes, I suppose they’d probably prefer that we just let them roam around unarmed. But they are aware of the possibility that we will indiscriminately kill, detain, abuse civilians, and that’s not a bad second choice–they know that it helps their recruiting. Killing and torturing civilians is not going to be much disincentive for them; it serves a lot of their goals. It’s directly contrary to ours–not only for moral reasons; it’s bad strategy.

    (The reason I say that the “unlawful combatant” category led to harm to civilians: in practice, the effect of deciding that there were no POWs in Afghanistan was no Article V hearings. Article V hearings in the past were used to distinguish not only lawful from unlawful combatants, but unlawful combatants civilians. So he practical effect of the decision not to hold Article V hearings was that we sent a lot of innocent civilians to Guantanamo. So because the Taliban commits atrocities against civilians, civilian victims of Taliban atrocities get sent to Guantanamo, where some of them have been for almost five years. Whose interest does this serve, exactly? Has it done anything to dissuade the Taliban and al Qaeda from violating the laws of war?)

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