15 Jul The Necessity of Reciprocity: Eric Posner is Right (as Usual)
U. Chicago law prof Eric Posner has a typically effective op-ed in the WSJ($) today arguing that it simply doesn’t make sense to apply Common Article 3 of the Geneva Conventions (the provision at issue in Hamdan) to the conflict with Al Qaeda. His argument is pragmatic rather than formalistically legal, but it is also sensibly grounded in a common-sense understanding of international law where states regularly ignore treaties that are against their interests. Here is a key graf:
Treaties are flexible instruments that change with the times or lose their value. States enter into treaties when doing so is in their interests; and they withdraw from them, violate them, or interpret them out of existence when the pacts no longer serve their interests. The Geneva Conventions fit this pattern. The main portions of these conventions apply to regular interstate wars, where belligerents obtain advantages by exercising mutual restraint even as they try to defeat each other. States comply with the Geneva Conventions, when they do, because in return for their humane treatment of enemy soldiers and civilians, the enemy responds in kind. When reciprocity is absent, states often break the rules. A good example is the law of occupation, which victors skirt because the defeated enemy has no means to retaliate.
[snip]
Perhaps fairer commissions and more humane detentions would be good policy. Perhaps, if the U.S. liberalized its policies, its allies would be more cooperative, captured U.S. soldiers would be treated better in future wars by future enemies who remember how we treated al Qaeda detainees, the Muslim world would hate us less, and detainees trained to expect atrocity at the hands of American troops, touched by kind treatment, would be more willing to betray comrades by revealing their whereabouts to American interrogators. Any of these claims, if true, would provide grounds for a less aggressive war on terror strategy than the U.S. currently uses. But Common Article 3, ignored by most states and particularly by al Qaeda, does not.
The title and tenor of your post suggest, Julian, that the Congress should either enact laws auhtorizing breahces of Common Article 3, or actually withdraw from such treaties. Is that what you think? And, if so, does that “necessity of reciprocity” apply as well to all other similar treaties, such as the CAT?
Julian,
This administration’s “strategy” is not “agressive” — it’s pure insanity. You and Posner, et al, are arguing for nothing more complicated than the necessity and efficacy of the Gestapo, the KGB, the Inquisistion, and the reign of Caligula.
You people aren’t just wrong, you are profoundly and uttely CORRUPT.
Violations of CA3 are federal crimes pursuant to 18 USC 2441(c)(3). They are also international crimes pursuant to the Nuremberg Principles [London Charter 1945), UN G.A. res. 95(I)(1946)], Geneva 1949, and Hague IV 1907.
That’s what you, Posner, and Yoo are advocating Julian: CRIMES against the laws of the United States — and it is absolutely disgraceful.
Charles Gittings
Well, in “fairness,” Charles, I think the Posner Op-Ed, fairly read, is not urging that the President violate the law, but is instead a plea for Congress to enact a statute authorizing conduct that violates CA3 and to *repeal* that part of the War Crimes Act that makes violations of CA3 a crime.
I second Charles’ observations.
As always, Posner sounds so reasonable; he’s the living embodiment of the iron fist enclosed in the velvet glove. Cool pragmatism is the way of the world, and why should the United States deprive itself of its benefits before the fact? After all, everyone does, don’t they?
Posner makes some categorical historical claims that are highly dubious. He then jumps from these dubious premises of universal state conduct (and psychology) to infer that treaties and international norms are mere window dressing for diplomats, made flexible by shifting interests, and really shouldn’t be invoked to restrain good people like us.
Posner has also a highly limited view of “our interests.” He seems to intepret our interests to rest merely in how others may treat our soldiers in current or future wars, or in allied cooperation, or in securing information from defectors; in other words, our interests are limited to how others behave or might behave. He wholly ignores our interest in who and what we are, and that our conduct, particulary in extremis, to a large extent reveals who and what we are. To Posner, these considerations are apparently not a critical interest that we may wish to acknowledge or protect.
As for the idea that Congress enact a statute authorizing conduct that violates CA3 and to repeal that part of the War Crimes Act that makes violations of CA3 a crime, if this is in fact Posner’s position, it is a proposal to codify corruption (and, almost by definition, state sponsored “inhumanity”). And corruption is no less corruption for being included in the US Code. It will inevitably lead to further and greater corruptions (on and off the books) in the future.
I’m reminded of the post on JBalkin’s site parodying the moral philosophy of the Bush administration, in which, by impeccable logic, it was concluded that, because we are good people and we believe in the rule of law, no law can possibly be construed to restrain us. And, by extension, if a law be so construed, just enact a new law to remove the constraint.
Julian — I’m perplexed by what you find “effective” in Posner’s piece. In fact, as far as I can tell, it contains no argument at all, and, if anything, better supports the opposite conclusion from the one with which it begins. Posner is repeating his general view that states only comply with international law when it is in their interests to do so. He points out – rightly or wrongly – that many governments have not felt it was in their interests to comply with CA 3 in Civil Wars. He then queries whether it is in U.S. interests to comply with CA 3 in the war with Al Qaeda, noting that Al Qaeda will not comply no matter what we do. He then casts doubt on whether basic moral considerations supply the necessary interest on the U.S. side (though he never does more than make the point as a rhetorical question rather than offer an argument). Then he lists a number of other interests the U.S. may have — all of them highly plausible and potentially compelling — for essentially complying the CA 3: that we will get greater cooperation from allies, that the Moslem world will hate us less, that we will better protect our soldiers in future wars, etc. But, he then miraculously concludes that we have no interest in complying with CA 3. That’s straightforwardly a non-sequitur.
The only respect in which the piece could be effective is in the realm of pure rhetoric. It contains no argument.
David Golove
Professor, NYU School of Law
Well Marty, for what it’s worth, I think you are one of the most reasonable legal minds this country has — but I’m going to have to respectfully disagree here.
I think Posner’s (and Addington &Yoo et al.) reciprocity argument is patently fallacious. For one thing, there simply is no question of reciprocity between nations and individuals. Does a US attorney obey the law when prosecuting criminals because criminals reciproate obedience to the law? Do we obey have laws that forbid cruelty to animals because animals reciprocate our kindness?
Not hardly; Posner’s argument is just fallacious sophistry. I wouldn’t buy it in the context of regular war either — and we didn’t during and after WW2.
Posner starts out with a statement I find highly dishonest:
“When the Bush administration claimed in 2002 that Common Article 3 of the Geneva Conventions did not apply to al Qaeda, it advanced a legal argument — but the decision was really based on a common-sense policy judgment.”
It all sounds so bland and matter of fact, but the reality is that the “legal arguments” which they advanced are both patently fraudulent and contrary to the plain meaning of CA3, while their “common sense policy” judgement was in fact an overt conspiracy to commit war crimes in violation of 18 USC 2441.
They have pressed those frauds for 4.5 years, and we now have a DDC opinion holding that they have violated GPW arts 4-5 (Hamdan), another holding that they have denied all of the detainee 5th amendment protections (In re Gitmo), and now a Supreme Court opinion that flushed their entire legal rationale down the toilet and found them in violation of CA3 — and all of these violations were and are offenses p. 18 USC 2441. Thursday, now fewer than six current and former service JAGs admitted in a Senate hearing that we have been violating CA3.
Posner isn’t advancing a legal argument at all, he’s arguing for the total subversion of law to the purposes of pure tyranny unchecked by any rational concept of law whatever.
Here’s a quote from the ICRC Commentary on CA3:
“Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country, but does not fulfil any of the above conditions (which are not obligatory and are only mentioned as an indication)? We do not subscribe to this view. We think, on the contrary, that the scope of application of the article must be as wide as possible. There can be no drawbacks in this, since the Article in its reduced form, contrary to what might be thought, does not in any way limit the right of a State to put down rebellion, nor does it increase in the slightest the authority of the rebel party. It merely demands respect for certain rules, which were already recognized as essential in all civilized countries, and embodied in the municipal law of the States in question, long before the Convention was signed. What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture and mutilate prisoners and take hostages?”
Answer: the Bush adminstration.
The very idea that the law is a TOOL of policy is an absolute perversion of law. The law must first and foremost be impartial, and it is the duty of the government to both obey and enforce the law impartially. If it’s just a game of heads-I-win and tails-you-lose, then there is no law… and two can play that game — read any decent history book on that topic.
I’ve heard these people argue that 1 + 1 = 0 or 3 or 55.6 for four and half years now. I’m fed up with their dishonesty. There isn’t any reasoning with these people: when you refute one of their frauds, they just invent a new one.
All of their “legal arguments” reduce to the single proposition that it’s OK to commit a crime just as long as they think it’s a good idea. Bank robbers and rapists think the same way.
They are WRONG and DISHONEST and that is all that they are.
The criminal laws do not operate by reciprocity:
“[T]here can be no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct.Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed.”
Oliver Wendell Holmes, Jr., The Common Law, 46.
That applies equally to Al Qaeda, the Bush administration, or any other criminal organization: Justice wears her blindfold for a reason.
Charly
One further thought: even assuming arguendo that Congress could somehow ratify their crimes (which I deny), in order to do it they’d have to repudiate a lot more than CA3. Geneva, Hague, IMT, ICCPR, 18 USC 2441, 18 USC 371… even the federal kidnapping statute. Oh and some of the articles of the UCMJ as well.
The Superem Court didn’t say that CA3 was the only law they are violating — they just said that CA3 was the minimum law they’d have to obey, and that their kangaroo courts at Gitmo didn’t meet even that minimal standard.
And the efforts of the aopologists to read the decision as meaning that they just have a little technical problem is just one more glaring example of their complete dishonesty.
Charly
I agree with Prof. Golove. Posner’s list of reasons to COMPLY with CA3 is the most compelling part of his piece – the rest seems just fear mongering at best.
Last week, every senior military lawyer serving our armed forces, accompanied by the Army Judge Advocate General who served in that position for the four years following the attacks of 9/11, and a former Navy Judge Advocate General who has devoted substantial time and effort in studying this subject since he retired and became a law school Dean, unanimously endorsed compliance with Common Article 3 vis a vis the conflict with Al Qaeda.
What does this indicate? There is far more to Common Article 3 than “reciprocity.” Indeed, the drafters of that article were under no illusion that it would be uniformly respected by non-state forces engaged in internal armed conflicts. They, like these flag officers, understood that it was based on something more significant than simply reciprocity. It is about discipline of a professional force, and protecting the moral well being of members of that force. Trust me, those officers are not naiive enough to think that Al Qaeda will suddenly avow commitment to Common Article 3. However, they understand that even if the interests of reciprocity are not furhtered in this conflict by such compliance, other strategic (legitimacy of our effort) and pragmatic (providing a line of morality for our forces) interests are served. Protecting our forces from the corrosive effects of combat is the fundamental underlying norm that must be considered in this debate.
Nor was the United States ignorant of the “non-reciprocal” application of law of war obligations when our chief negotiator, Waldemar Solf, played an instrumental role in the development of Additional Protocl I and especially Article 75. After serving decades as the Army’s most respected law of war expert, Mr. Solf understood full well in the post Vietnam conflict/rise of “wars of liberation” era that the humane treatment obligation was far more likely to be respected by professional armed forces than the non-state forces they would inevitably encounter. This, however, in no way tempered his commitment to emphasize this principle.
Imposing an obligation to treat individuals who can no longer participate in hostilities humanely serves purposes extending well beyond reciprocity. Our finest warriors clearly understand this.
Charles, what do you mean by stating your doubt Congress coould “ratify their crimes?” Congress may retroactively make things legal; the only constitutional prohibition on retroactivity is making things criminal that when done wee legal (ex post facto clause). The only requirement is a clear statement of retroactive application by Congress.
Alos remember that the President could issue blanket pardons for anyone involved. In the end, he has ultimate authority here. And no prosecution could go forward without the President’s okay – remember Jefferson’s reaction to the unfavorable court rulings upholding the Alien and Sedition Act – he pardoned everyone convicted under the Act, and ordered all US attorneys to cease prosecutions under the Act. Bush could do the same re: Hamdan. SCOTUS does not have a “blank check” to do anything – it is checked by the other branches’ powere (couldn’t resist).
As to your argument about the criminal laws not operating by reciprocity, that is true – but the Geneva Conventions certainly are enforced that way – “you mistreat our soldiers, then we will mistreat yours.” There is no central enforcement mechanism of the Conventions. Perhaps the President could (in the spirit of Hamdan) recognize Al Qaeda as a signatory to the Conventions, then determine (correctly) that Al Qaeda was violating the Conventions with their barbarism, and enforce the Conventions by mistreating some detainees. Reciprocity is the heart of the Geneva Conventions, so let’s apply them fully!
I find Posner’s lack of respect for international treaties and covenants utterly disturbing. Treaties are essentially contracts between states. While states parties will inevitably breach treaty obligations (as criminals break criminal law), this should not be used as a rationale for disregarding treaties whenever a country’s interests change. We do not allow a private party out of a contract merely based on changed circumstances. That is the whole point of a contract; to provide certainly, and defined standards and terms.
Reading Posner’s comments about reciprocity, just days after the NatWest Three were shipped off to the states despite the fact that the US-UK Extradition Treaty has been made part of British law, but has yet to be ratified by the Senate (not to mention that, even when ratified, the terms of the treaty are hardly symmetrical), is hypocritical and misses the whole point of international law.
While breaches of international law will forever be with us (mostly from the lack of any enforcement), this should not permit states to deviate from agreed norms.
I agree, however, that with al-Qaeda, it is a closer question. I doubt it can be argued that Geneva Conventions foresaw a conflict such as the world currently finds itself in, pitting state actors versus non-state, but perhaps state-funded, actors, with the whole world a potential target, and continuing for an undetermined amount of time. They did, however, contemplate the involvement of non-state actors in CA 3. As such, one cannot argue that a non-signatory has breached the treaty or has unclean hands, because the treaty contemplates treating persons humanely regardless of the signatory status of the state of conflict.
And for goodness sakes, if we are so eager to forget our history lessons and return to torturing and holding our enemies without charge or trial, what have we really contributed at all?