02 May Mark Osiel, The End of Reciprocity
University of Iowa law professor Mark Osiel – an old friend of mine and someone well known to many of us, particularly for his books and writing on mass atrocities – has a new book out, The End of Reciprocity: Terror, Torture, and the Law of War (Cambridge 2009). I’ve read it at pretty high speed – looking for some specific issues on targeted killing, mostly, but I still read it and the notes all the way through – and I want to highly recommend it to our readers. Incisive – it manages to engage across a wide range of methodologies and fields in law and related disciplines, and goes particularly deeply into the moral philosophy of many of these issues. Mark has a graceful, ever-so-slightly acerbic writing style, one that I enjoy reading more than most academic writing.
The issue of reciprocity is, indeed, every bit as crucial as Mark says. I raise it – meaning, the loss of reciprocity in the laws of war – as one of a series of consequences of the rise of international criminal law in an upcoming EJIL article, and I’m pleased to see this book-length treatment of the issue (even though it has arrived to late for me to reference in the EJIL article, alas, already gone to press). I think I have some disagreement with at least parts of the book. I’m not sure I’m persuaded, for example, by the discussion toward the end of the role of the JAG – mostly I don’t understand the apparently insatiable need among international law scholars to identify heroes and evoke heroic narratives in the discipline, and given Mark’s more typical gentle skepticism, I find it jarring. But I need to read it again and more closely to really be clear about my agreements and disagreements.
But it is a fine book, well worth reading and I think will leave a real mark on the debate. The notes to the book are exceptionally rich, too, and my research assistants are busily scurrying about finding things that Mark identifies in them.
But now let’s get down to the True Nub of the matter … Mark manages to cite just about everyone who’s anyone in the notes but, according to my research assistants, he didn’t manage to cite the Esteemed Author (who might that be?) who closed out a New York Times Magazine essay on the laws of war with the Marvelously Constructed & Pithy Sentence:
“Reciprocity matters.”
The only thing that’s been lost here is your sanity and human decency. All you are doing is inventing double standards and excuses for supposing that it’s fine and pragmatic to murder and torture people… for exactly the same reasons that the Nazis murdered and tortured people.
It is intellectually and morally depraved. More: it is idiotic and suicidal.
It’s probably hopeless, but let me try.
“All you are doing is inventing double standards and excuses for supposing that it’s fine and pragmatic to murder and torture people”
The principle of reciprocity was inherent and necessary to the Hague and Geneva Conventions. Its purpose is to set practical self-interest as a guard on the standards expressed in the conventions. If we abide by the rules, our enemies will also abide by the rules. True, the spirit of the conventions also expresses a fundamental moral sense concerning how combatants ought to behave, but the contingent morality of the letter protects the fundamental morality of the spirit – not vice versa. The drafters recognized that, as a matter of history, the latter tends not to stand on its own.
Whatever the developments since 1907 and 1949, they do not change the fact that the drafters thought reciprocity necessary. So, in setting up a system based on reciprocity, and therefore creating a double standard where those who abide are protected and those who do not abide are not, were the drafters and signatories behaving like Nazis?
Nathan, I disagree — and so did the Nuremberg tribunal. What’s your evidence for this claim?
There are some things that are subject to reciprocity for practical reasons, but there are equally many things which are not, and the claim that the conventions are grounded on reciprocity is simply a false argument used to rationalize violations.
This is about the law. Forget war for a moment, and simply consider the ordinary murders and robberies which occur every day. Now tell me how the law is based on reciprocity.
It’s absurd, it’s dishonest, and it’s ultimately insane. It gains you nothing and abandons any chance of rational decision making.
Bottom line: it’s not just depraved, it’s self-defeating and dumb. We didn’t beat the Nazis by acting like Nazis, and we aren’t going to win anything in the here and now by acting like terrorists.
There are clear limits to the logic of reciprocity, whether motivated by prudential concerns or as a principle intrinsic to the notion of retributive or simply formal justice. As Larry May has argued, if we are to understand how the rules of war derive from the “laws of humanity and the dictates of public conscience” (see the Martens Clause of the Preamble of Hague Convention (IV) Respecting the Law and Customs of War on Land, 1907), we ought rather to ground international humanitarian law on a fundamental principle of humane treatment understood first and foremost “in terms of compassion and mercy, not in terms of (retributive) justice.” I won’t attempt to summarize the argument here, but it deserves a wide hearing. Please see, first, Crimes Against Humanity: A Normative Account (2005), and then, and especially with regard to the limits of the principle of reciprocity, War Crimes and Just War (2007) (I’ve yet to read his latest book in this trilogy: Aggression and Crimes Against Peace [2008]). Suffice to say that May draws principally upon such “moral minimalists” as Hobbes and Grotius, indeed, his is a minimalist, and secular (or humanist), natural law theory and, by my lights, a persuasive… Read more »
Here’s article 2 of the Hague IV (1907): Art. 2. The provisions contained in the Regulations referred to in Article 1 [the annex of 56 articles regulating war on land], as well as in the present Convention, do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention. There’s the reciprocity. The signatories did not bind themselves to abide by the convention absolutely, but only in wars where all belligerents had also bound themselves to follow the convention. Again, from Article I of the Annex: The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: To be commanded by a person responsible for his subordinates; To have a fixed distinctive emblem recognizable at a distance; To carry arms openly; and To conduct their operations in accordance with the laws and customs of war. To gain the protection of the Convention, militias had to abide by the Convention. Again, reciprocity. You are certainly correct that criminal law is not based on reciprocity, but this is because the criminal and society are not on the same moral plane. Not so with… Read more »
Re: the “Marvelously Constructed & Pithy Sentence”
A concision so entirely typical of you, Ken.
Regarding the Martens Clause, it is interesting to note that its vagueness is a result of a compromise between the large and small powers over whether francs tireurs should be considered lawful combatants and given the same protections as prisoners of war. Not formally being accorded such status, their treatment was left “to the laws of humanity, and the dictates of the public conscience.” When push came to shove at Nuremberg, the allies gave them no protection, acquitting Wilhelm List: “The evidence shows that after the capitulation of the armies of Yugoslavia and Greece, both countries were occupied within the meaning of International Law. It shows further that they remained occupied during the period that List was Armed Forces Commander Southeast. It is clear from the record also that the guerrillas participating in the incidents shown by the evidence during this period were not entitled to be classed as lawful belligerents within the rules herein before announced. We agree, therefore, with the contention of the defendant List that the guerrilla fighters with which he contended were not lawful belligerents entitling them to prisoner of war status upon capture. We are obliged to hold that such guerrillas were francs tireurs who,… Read more »
[ Just got back from church myself actually. ] The problem with your argument is that the detailed provisions under Common Article 2 are complimentary to Common Article 3 and Hague IV 1907, both of which express customary law applicable to all parties in an armed conflict regardless of treaty status. The Hague IV 1907 preamble is unambiguous as to the fundamental principle, and it isn’t reciprocity: “According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants. “It has not, however, been found possible at present to concert regulations covering all the circumstances which arise in practice; “On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders. “Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in… Read more »
Charles,
Perhaps you are an honest, but your post displays other “qualities.”
You state, “The Hague IV 1907 preamble is unambiguous as to the fundamental principle, and it isn’t reciprocity.”
Quite funny as your very first quote emphasizes the reciprocity element.
“According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.”
Rules of conduct for belligerents in their mutual relations is a statement of, if anything, reciprocity.
Instead, it was CA3 that did not include a reciprocity clause.
HLS, Oh baloney, you’re just parsing your own circular reasoning into it. Try reading what it actually says, there is no ambiguity: “On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders. “Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.” I’m a human being and so are you. That’s a fact of biology, not a relation based on reciprocity. And you’re using exactly the sort of irrational, fallacious reasoning that so many lawyers habitually employ to argue that 1 + 1 = 0 or 3. Context matters, a lot, and you’re just ignoring it entirely to play word games in a vacuum. I’m so sick of such nonsense — if you… Read more »
I think it may be helpful here to try to limit the scope of the disagreement. I do not contest and have not contested that the motivating spirit of the conventions, both in 1907 and in 1949, was a humanitarian impulse not conditioned on reciprocity. Had there been no fundamental moral judgment at stake, there would never have been a Hague conference to begin with. That said, I think the record is clear that the Hague Convention employed the principle of reciprocity, and that it did so, in part, in order to align nations’ self-interest with virtuous behavior. The Geneva Conventions, in Common Article 3, do indeed dispense with the principle of reciprocity, but this was recognized as an innovation. Here is a passage from the Red Cross commentary on Common Article 3, usually considered authoritative: ” ‘ Obligations of the Parties. ‘ The words “each Party” mark a step forward in international law. Until recently it would have been considered impossible in law for an international Convention to bind a non-signatory Party — a Party, moreover, which was not yet in existence and which need not even represent a legal entity capable of undertaking international obligations. It had not… Read more »
Well it’s late Nathan and I’m tired; I’ll have a more detailed response in the morning.
But I have to say this right now: the fact that there are people who dispute something means nothing. After seven and a half years of this nonsense, it’s completely obvious that Yoo and Addington et al will argue that the moon is made of green cheese, that water flows up hill, or any other silly thing if that’s the only way they can see to get the result they want.
And again: forget war and consider ordinary murder and robbery. Show me where reciprocity enters into it.
It’s a figment. Addington and Yoo are uncomplicated serial killers, and reciprocity has nothing to do with anything other than being useful for sowing confusion and fabricating fraudulent alibis for their crimes.
Which, oh by the way, are offenses pursuant to Title 18, U.S.C.
The elements of a crime are what they are: they don’t depend on anything but the facts and the law.
At least they aren’t supposed to in a real legal system.
The qualifications for POW status simp0ly are what they are.
A POW is not subject to prosecution for acts pursuant to lawful military operations.
An unprivileged combatant is subject to prosecution like any other criminal, but they are nevertheless protected as CIVILIANS by Geneva IV; the only exceptions are based on nationality, not status or reciprocity.
The entire issue is just a dodge aimed at:
1) arbitrarily depriving suspects of their legal rights.
2) providing a blanket pretext for committing war crimes with impunity.
Now we are just talking past each other. I have not in this thread undertaken to defend the legality of the detainee policy in the GWOT. My purpose was different and more narrow: to demonstrate that discussion of the proper scope of the principle of reciprocity is not ipso facto moral Nazism. Stipulating for the purposes of this thread that Geneva is a closed box wherein a detainee can either be a privileged combatant prisoner of war or else a civilian, there is still a required reciprocity. In order to be a privileged combatant under Geneva, one must abide by the four conditions named in the Convention. Failing that, one is subject to criminal law for acts that would otherwise be permissible acts of war. A legal combatant can lob mortars at an enemy military position without liability; an illegal combatant cannot do the same. In order to gain the protection of the convention, one must abide by the convention. That’s reciprocity whatever way you want to slice it. Now, the push in more recent times has been to accord the privileges of combatants to members of armed movements which do not abide by the conventions and have no respect… Read more »
Yes Charles, because I think the Hague 1907 preamble stresses the importance of reciprocity, I therefore agree that Yoo’s wife could legally be raped, roasted, and eaten. But please explaind how my reasoning is circular? I don’t believe you even understand the concept. From you own very quote, ‘According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.” The creation of rules governing how parties behave towards each other is very supportive of the principle of reciprocity. Furthermore, as N.W. pointed out, the commentaries clearly discuss the pre-CA3 importance of reciprocity. ” ‘ Obligations of the Parties. ‘ The words “each Party” mark a step forward in international law. Until recently it would have been considered impossible in law for an international Convention to bind a non-signatory Party — a Party, moreover, which was not yet in existence and which need not even represent a legal entity capable of undertaking international obligations. It had… Read more »
N.W.,
You perhaps aren’t too familiar with Gittings. Pretty much everyone who disagrees with him is branded a nazi, war criminal, or murderer. Perhaps worse, he frequently includes his fetishes like rape and cannibalism. I guess calling a person a Nazi isn’t enough these days.
Well since you both seem to think that this supposed “principle of reciprocity” is important, it seems that you ought to be able to state it clearly — pray do. And again, I’d like to know how you think this fits in with ordinary criminal law, because that’s the bottom line here. I’ve already showed you the Nuremberg tribunal’s opinion of the Nazi arguments regarding Hague, and we’ve already established that in the here and now CA3 applies to all regardless. And I’m sorry, but much as I do understand the diplomatic realities of negotiating treaties, I also understand that there is line of intellectual development at work in these treaties that runs back to Grotius and Aquinas all the way back to Aristotle, and that this is more a matter of self-evident truths and natural rights than of reciprocity or real-politik. And in the here and now, the law is what it is. I don’t actually need principles in this argument: on information and belief, there is probable cause to believe that these people have committed criminal offenses pursuant to 18 USC 2441 and other federal statutes. It doesn’t matter how things stood in 1907 0r 1945 in that… Read more »
Now we really are talking past each other, so this will be my last post. My purpose in this thread was not to invoke reciprocity as a defense of the Bush administration detainee policies and the legal justifications thereof. To be perfectly frank, I have not studied them in sufficient detail to be able to have an opinion on their legality – except that I dismiss Yoo and Addington’s executive power theories out of hand. I have stipulated for the purposes of this thread that “anyone who is not protected by Geneva III POWs is protected as a civilian by Geneva IV Civilians.” I am not making any argument whatsoever that the present state of the law is on Yoo’s side. My whole purpose, the entirety of it, was to say that the principle of reciprocity exists and that its proper scope may be debated without succuming to moral Nazism, per Mr. Gittings’ original comment. The principle of reciprocity in 1907 was that the detailed provisions of the Hague covention only applied in the case of war between the contracting powers. That the Hague convention may have been found to be customary international law at a later time (I could,… Read more »
Nathan, Well that’s a useful response; I actually think we’re getting down to the brass tacks. Again, the Martens clause and the text of Hague indicate that the treaty was intended to express customary laws and aspire to more than mere reciprocal arrangements between signatories. Again I would ask how you see reciprocity entering into ordinary criminal law, but let me address your specific comments. “The principle of reciprocity in 1907 was that the detailed provisions of the Hague convention only applied in the case of war between the contracting powers.” But that is clearly not the case today. Every nation on earth is a signatory to Geneva, CA3 applies to all parties in a non-international armed conflict, and 18 USC 2441 makes it an offense to commit any grave breach of Geneva, any violation of CA3, or any violation of Hague IV 1907 Annex arts. 23, 25, 27, or 28. “Were the drafters and signatories moral Nazis for signing a convention containing such a principle? I say no. “Mr. Gittings says “It doesn’t matter how things stood in 1907.” Well, it does for the purposes of my argument, which is not to defend the Bush detainee policies but to… Read more »
Mr. Gittings,
Thanks for the concession. It is only fair to say, speaking abstractly, that I suspect I am likely to take the principle of reciprocity farther than you might wish it to go, to resist contemporary pressures to abandon the principle in law where you might approve of such abandonment, and to favor changing the law to incorporate it where you might think such changes unnecessary or even retrogressive.
But those are conversations for another time. It’s a beautiful spring day, the peonies are coming up in my garden, and I’m going outside for a walk.
Well I’m sure we could have an intersting conversation about that, but just how far apart we might be would depend on the partriculars. I can tell you this much right now though: reciprocity is a two edged sword. Mr. Bush and his gang of criminals made the Untied States into a terrorist gangster state in the same sense that Soviet Union and Nazi Germany were.
Follow the laws of war you say??
The United States has been committing war crimes by official policy for seven and a half years now. We perpetrated a murderous crime against peace in Iraq. We murder civilians by remote control bombings. We torture people. We kidnap people. We deprive people of the their lawful rights and imprison them without charge or recourse.
The only real difference between Dick Cheney and Osama Bin Ladin is that Bin Ladin is a lot more honest. Both of them are murderers.
And this is all about reciprocity:
Mr. Cheney swore an oath. Mr. Cheney violated that oath in order to commit crimes against the very laws he swore to uphold. I want him indicted, tried, convicted, and punished for his crimes.
Because that’s what the law requires.
One last thing: Since we’ve established that, at least in the abstract, one can discuss the proper scope of the principle of reciprocity without moral culpability, I’d like to ask you to consider allowing Ken Anderson to do this without moral rebuke, at least when he is not defending the actions of the Bush Administration or proposing specific measures you find morally odious. The problem of terrorist “lawfare” is a real one, and the question of whether the laws of war can or should be changed to address it (prospectively, not as post hoc justification) is surely a legitimate one – though specific proposals are of course subject to moral judgment. Ken Anderson, I believe, is interested in reciprocity in this regard. He found Ogden’s book on reciprocity interesting. He wrote about it. He made no specific proposals in this post, nor did he defend the Bush administration detainee policies. I don’t see why this post should earn him the moral opprobrium you heaped upon him in the first comment, if the mere discussion of moral reciprocity is not inherently morally odious. I don’t – and would not want to – ask you to give up the moral abhorrence of… Read more »
Nathan, Well you appear to have a talent for “final comments” that open up even bigger cans of worms than the ones you’re trying to wrap up, and you’ve opened up a couple of doozies here. Let me start with the easy part. It’s completely trivial that we can discuss concepts in the abstract with moral considerations — but that simply is not the problem here. For example, a discussion of arithmetic per se has no moral implications at all — it’s simply a discussion of concepts which are variously useful, interesting, correct, false, etc. But when somebody claims that 1 + 1 = 3, they aren’t engaged in a discussion of arithmetic, they are either perpetrating a fraud or voicing a delusion, and those activities DO have moral considerations that have absolutely nothing to do with the concepts being used as a vehicle to advance the fraud or delusion. Is that unclear to you? I doubt it is. As for Ken Anderson, the bottom line there is that I’ve read enough of his stuff to see a pattern — of which the concerns he identifies under the heading “reciprocity” are merely one part. The man supports torture, he supported… Read more »
The second paragraph of that last one should read…
It’s completely trivial that we can discuss concepts in the abstract without moral considerations — but that simply is not the problem here.
Reposting with out links to avoid the moderation… Nathan, Well you appear to have a talent for “final comments” that open up even bigger cans of worms than the ones you’re trying to wrap up, and you’ve opened up a couple of doozies here. Let me start with the easy part. It’s trivial that we can discuss concepts in the abstract without moral considerations — but that simply is not the problem here. For example, a discussion of arithmetic per se has no moral implications at all — it’s simply a discussion of concepts which are variously useful, interesting, correct, false, etc. But when somebody claims that 1 + 1 = 3, they aren’t engaged in a discussion of arithmetic, they’re either perpetrating a fraud or voicing a delusion — and those activities DO have moral considerations that have absolutely nothing to do with the concepts being used as a vehicle to advance the fraud or delusion. Is that unclear to you? I doubt it is. As for Ken Anderson, the bottom line there is that I’ve read enough of his stuff to see a pattern — of which the concerns he identifies under the heading “reciprocity” are merely one… Read more »
As for Ken Anderson […], the man supports […] murdering civilians by remote-control air strikes […]. [T]he bottom line is that he’s clearly degenerated into a neo-fascist. This is precisely the moral confusion “lawfare” seeks to exploit. The authors of the Hague and Geneva conventions went to great lengths to separate civilians from combatants and to give belligerent nations a clear incentive to maintain that separation. Civilians were innocent and not to be assailed; combatants were to be recognizable as such so as to reduce the risk of confusion and prevent mistaken attacks against civilians. Thus, the authors sought to do everything possible to make law and national practice recognize the distinction between the moral categories of combatant and civilian. Al Qaeda and other such terrorist groups do not follow the laws of war and so are not legal combatants under Geneva. By legal technicality, this may make them civillians under Geneva IV. But they are most certainly not morally civilians. They can never be such. It is precisely “lawfare” to claim for them that moral position. So when Kenneth Anderson says he supports Predator attacks against al Qaeda leaders in Pakistan, and you interpret this to mean that he… Read more »