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 one at that (he’s not a friend of mine, and I’ve never met him, but don’t let that stop you!).
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 conventions governing the conduct of war (jus in bello), which do not judge the relative morality of the belligerents’ causes. All belligerents are on equal footing.
Again, I do not deny that the spirit of the conventions expresses a fundamental moral sense about the proper limits of conduct in war. But letter of the conventions is based on reciprocity. The contingent morality protects the fundamental morality. No, it is not ideal, but men are not angels. And, by endeavoring to put practical self-interest on the side of virtue, the drafters were recognizing the realities of history and human nature.
So again I ask, by choosing to create rules that did not apply in the absence of reciprocity, were the original drafters and signatories acting like Nazis?
Btw – I’m off to church and I’ll be out until late afternoon.
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, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans in Yugoslavia and Greece during the time he was Armed Forces Commander Southeast.”
(http://www.ess.uwe.ac.uk/WCC/List4.htm#NOTES)
World opinion, has, of course, changed since then.
I point these things out not to attempt to justify any and all treatment of unlawful combatants, or to say that the demands of morality are exhausted when reciprocity ceases. But I do think that law has only a limited ability to constrain human action. And if its dictates diverge too far from practical reality, it loses the respect of men of action that is more than half its power.
To point out the differences in the hopes for the law of war between 1907 and today is demonstrate how much more idealistic or civilized – one or the other – we have become.
[ 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 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.”
War is not an excuse for behaving like animals, and we have ample evidence of where such behavior leads. The laws of war revolve around the doctrine of military necessity, and abusing a defenseless prisoner can’t be a necessity, military or otherwise.
Common Article 3 says very clearly to whom it applies:
“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:
“(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
“(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
“(b) taking of hostages;
“(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
“(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
“(2) The wounded and sick shall be collected and cared for.
“An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
“The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
“The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”
Note well: each party to the conflict — whether they be a High Contracting Party or non-state-actor, without exceptions. As for the Nazis, see:
TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL (The Blue Set), Volume 22, “The Law Relating to War Crimes and Crimes against Humanity,” at 495-497 (30 Sept. 1946):
http://www.yale.edu/lawweb/avalon/imt/proc/09-30-46.htm
QUOTE:
Article 6 of the [IMT] Charter provides:
“(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment, or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
“(c) Crimes against Humanity; namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
As heretofore stated, the Charter does not define as a separate crime any conspiracy except the one set out in Article 6(a), dealing with Crimes against Peace.
The Tribunal is of course bound by the Charter, in the definition which it gives both of War Crimes and Crimes against Humanity. With respect to War Crimes, however, as has already been pointed out, the crimes defined by Article 6, section (b) of the Charter were already recognized as War Crimes under international law. They were covered by Articles 46, 50, 52, and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46, and 51 of the Geneva Convention of 1929. That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument.
But it is argued that the Hague Convention does not apply in this case, because of the “general participation” clause in Article 2 of the Hague Convention of 1907. That clause provided:
“The provisions contained in the regulations (Rules of Land Warfare) referred to in Article I, 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.”
Several of the belligerents in the recent war were not parties to this convention.
In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt “to revise the general laws and customs of war,” which it thus recognized to be then existing, but by 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the Charter.
A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were part of Germany. In the view of the Tribunal it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them.
With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they-were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were Crimes against Humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.
UNQUOTE
Cheney and Addington have floated all the same excuses, and they have committed all the same crimes with the single exception of genocide.
The case is not in doubt, and what is at stake is the honor, institutional integrity, and public safety of the United States.
These people must be prosecuted and punished for their crimes. If we are truly a nation of laws, not men, then the LAW must take it’s course and render impartial justice.
And I’m having a real hard time understanding why so many lawyers like Roger Alford, Julian Ku, and Ken Anderson think that enforcing or obeying our laws is such a bad idea. Except I’ve come to understand it all to well. The law is just a game they paly for profit and prestige, a set of tools they manipulate to get what they want regardless of the effects on other people. They’ve become so jaded and cynical that even the legal reasoning of Nazis isn’t out of bounds as long as it advances the political agenda du jour.
The facts here are simply indisputable. The invasion of Iraq was a crime against peace in exactly the way the Nazi invasion of Poland was. The unlawful detentions, kidnappings, systematic abuse, torture, kangaroo courts, and deprivation of due process was criminal from from the start, and I had proof positive of the crimes as early as February of 2002.
The only way anyone can claim these people are not criminals is to ignore the objective evidence or lie.
And I’m sorry, but all these lawyers who do deny it are far to smart to be ignorant of the evidence. That said, I certainly think Roger Alford has great deal more integrity than a Julian Ku, but self-deception is one of the most insidious forms of dishonesty. I get accused of all sorts of things because the only way the folks on the other side can deal with my critique is to slander me, but the reality is very simple:
I’m an honest man who has spent seven and a half years in theservice of my country pursing the most malicious gang of criminals in our history. I’m not deoing anything except telling the truth, and it is a VERY sad reflection on the state of the legal profession that so many lawyers have such a big problem with that.
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 people really believe in all this fraudulent BS you claim to believe then you should be willing to prove it up in front of an impartial judge and jury.
I mean just exactly what are you trying to prove anyway?
What is that you want to do?
John Yoo claimed that Congress could not enact any statute that would restrict the Presidents judgments as to the nature of or response to any “terrorist threat” in any way. Taking the liar at his literal word, I read that to mean the President could declare John Yoo’s wife a terrorist, order her gang raped, roast her alive, and then eat her for dinner.
And according to John Yoo that would all be perfectly legal.
Do you suppose he REALLY meant it HLS??
And do YOU really agree with him??
GET REAL ALREADY.
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 been thought possible to conclude an agreement without reciprocal undertakings and such undertakings would imply that the contracting parties were already in existence. As we have seen, however, the present Convention no longer includes a reciprocity clause. This great step forward cleared the way for the provisions of Article 3, although, it is true, it is offset by the fact that it is no longer the Convention as a whole which will be applicable, but only the provisions of Article 3 itself. ”
If the non-reciprocity in CA3 was seen as an “step forward,” then it is far from out of bounds to conclude, as the active text of Hague IV makes plain, that the application of the detailed provisions of the convention was conditional on reciprocity.
Moveover, Geneva itself did not entirely dispense with reciprocity, for in addition to the reciprocal provisions of CA2, article 4 of the third Geneva convention extends prisoner of war status to captured members of resistance groups if and only if they abide by certain provisions:
(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.
That’s reciprocity again.
As to the Hague preamble and the Martens Clause you quote, it is significant to note, as I did above, that in the very case the clause was composed to cover – armed resistance by nationals in conquered territory – the Nuremberg tribunal saw fit to countenance the execution of captured fighters.
Even today the scope of the clause’s meaning is a subject of dispute. I do not think it particularly strong ground on which to claim there never was such a thing as reciprocity.
In any case, my point is a limited one. The principle of reciprocity in the law of war exists. The Hague conventions expressly employ it. The Geneva conventions dispense with it in CA3 but retain it in other contexts. The proper scope and role of reciprocity in the conflicts we face today is a legitimate matter of discussion – not ipso facto evidence of moral Nazism.
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 for the customs of war. The general and final adoption of such measures would truly mean the end of reciprocity.
Moreover, my other contentions still stand. The specific provisions of the Hague IV 1907 were, at least as drafted and at its signing, binding only in cases of war between signatories. The Geneva Conventions of 1949 continue the principle of reciprocity in CA2, dispensing with it only in CA3 – which the Red Cross commentaries make clear was considered an innovation – and in order to obligate a signatory under Geneva to accord you protection for acts of war, you have to abide by the conditions Geneva sets forth for lawful combatants.
Unless you are willing to say that the drafters and signatories of all those provisions were moral Nazis, you have to acknowledge that discussing the proper scope of the principle of reciprocity is morally within bounds. That’s all I’m trying to argue.
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 not been thought possible to conclude an agreement without reciprocal undertakings and such undertakings would imply that the contracting parties were already in existence. As we have seen, however, the present Convention no longer includes a reciprocity clause. This great step forward cleared the way for the provisions of Article 3, although, it is true, it is offset by the fact that it is no longer the Convention as a whole which will be applicable, but only the provisions of Article 3 itself. ”
You may not agree with the principle of reciprocity. But, because you don’t agree, that does not mean it does not exist.
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 context. The crimes have been committed in the here and now, the laws are on the books. The only real problem is that so many of the federal officials responsible for enforcing the laws are in fact CRIMINALS engaged in committing, aiding, and abetting the crimes.
Then there is Nathan’s point about POWs protected under Geneva III, and he’s misstating the case regarding CA2, because anyone who is not protected by Geneva III POWs is protected as a civilian by Geneva IV Civilians. The protections are different in detail, but the Bush policies are in violation of them either way. See my blog post on The Geneva Order.
And it’s not my fault these people talk and act like Nazis, I’ve just studied enough history not to be confused or in doubt about them.
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, but won’t, dispute a technical point there) is immaterial to the fact that in 1907 the signatories only bound themselves in cases of mutual war. 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 establish that the principle of reciprocity is not inherently morally odious.
The reciprocity in article 4 of the third Geneva convention is this. If you are a member of an armed group and you want to conduct acts of war against a party to the convention, and if you want such acts to be considered within your rights and not murder or mayhem for which any civilian could be tried and put away, then you must abide by the four conditions set forth in that article of the convention. If and only if you abide by those provisions does Geneva require your enemy to treat you as a lawful combatant and not as a criminal. Fail to abide by those provisions, even if you do nothing but attack purely military targets, and your enemy can lawfully put you away or (in relevant jurisdictions) execute you as a murderer. If you want your enemy to accord you the protections due to POWs under the convention, then you need to comport yourself as a lawful combatant under the convention. That’s reciprocity. I really don’t see how I could be more plain.
The principle of reciprocity has an established place in the laws of war. The proper scope of the principle – at the very least as to what the law should be rather than what it presently is – may be debated without necessarily succuming to moral Nazism. That’s all the concession I’m looking for.
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 establish that the principle of reciprocity is not inherently morally odious.”
Well I didn’t mean to say it was inherently immoral — what’s immoral is using it to aid or abet crimes.
“The reciprocity in article 4 of the third Geneva convention is this. If you are a member of an armed group and you want to conduct acts of war against a party to the convention, and if you want such acts to be considered within your rights and not murder or mayhem for which any civilian could be tried and put away, then you must abide by the four conditions set forth in that article of the convention. If and only if you abide by those provisions does Geneva require your enemy to treat you as a lawful combatant and not as a criminal.”
Exactly — but that’s just the point: the Bush administration didn’t even want to treat the detainees as criminals, they wanted to treat them as animals with absolutely no rights at all, in exactly the way the Nazis regarded the Jews and other “undesirables” they exterminated. The crimes were not as prolific or extend to genocide, but the underlying rationale was essentially the same. You say you reject their theory of executive power, and I’m glad to hear it — the Nazis called the Addington-Yoo theory of executive power the “Fuhrer Prinzip”.
So I have no problem giving you your concession, because I’m not speaking in the abstract here, but in the specific context of the Bush administration’s war crimes.
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 the Bush administration detainee policies that seems to have become the animating purpose of your life. You want the laws enforced. That’s good.
But consider saving your sting for moments when your target is clearly in view – rather than jumping on a book review post. It will be taken more seriously that way.
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 the rape of Iraq, he supports the various crimes of Israel, and he supports murdering civilians by remote-control air strikes. Not a pretty picture, but I actually find a lot to like in the guy aside from those ugly facts… however, the bottom line is that he’s clearly degenerated into a neo-fascist. The same is true of Julian Ku, who strikes me as a typical John Yoo-style Federalist political subversive. Roger I’m not so sure about, because Roger is a truly outstanding lawyer when conservative politics aren’t clouding the picture, and I get the sense he’s had his political views shaken some by the excesses of the Bush administration.
But I also try not to over-analyze people from their blog posts or papers. I’m sure they ‘re all very nice guys on a personal level, but none of this is about people or politics to me, it’s about the facts and the law, which is why I get so upset when people try to politicize or personalize these discussions. Like for example, when they accuse me of calling anyone who disagrees with me a Nazi. The truth is that I only compare people to Nazis when they advocate or commit the same arguments or crimes the Nazis did, and that’s a sad fact. The sad part being that so many people have allowed themselves to adopt such demented thinking over the last seven years… And here people used to wonder how it could have ever happened in a deeply cultured place like Germany.
It’s been seven and a half years. That’s long enough for even a lawyer who’s been led astray by their politics to find half a faint clue, but the dishonest excuses and fallacious rationalizations just keep coming. The inference is clear: they aren’t thinking clearly, mostly because they aren’t even trying.
So then there is the biggest problem:
I don’t believe that “lawfare” is anything more or less than an uncomplicated fraud to whatever extent it isn’t merely a pure figment or delusion, and I also believe that your claim to the contrary exhibits a profound misunderstanding of the law.
But that’s a big discussion. I can give you couple of quick thoughts to consider however.
1) The incompetence of the Bush administration and / or USG in matters of litigation, law enforcement, and military affairs is nothing that could accurately be descibed as a tactic by our enemies called “lawfare”. These people all swore to faithfully execute our laws, and if they don’t think they can handle the job then they should quit taking their pay under false pretences and resign. Those of them who have committed crimes should be prosecuted and disbarred for life.
2) It has become commonplace to for people on both sides of the political spectrum to speak of laws as “tools,” a notion rather intimately connected to the fallaciouse concept “lawfare.”
A tool is something which we manipulate to force a particular desired result. The law is supposed to represent an IMPARTIAL set of standards that protect and regulate all who come before it FAIRLY. I wish more lawyers would remember that, but then I’m a systems analyst and it’s a lot harder to bullshit a computer than a judge or a jury.
And that’s the whole provblem here: people trying to force results by cutting corners. The Nazis were all about getting results in the most direct and efficeient way. Whe npeolpe start talking about “lawfare” I start smelling the smoke fromn Auschwitz, and wondering how any American could be so deluded or depraved.
Cheney and the gang have claimed that they didn’t have the legal authority to act against the 911 conspirators without massive changes in the law. That was simply a lie: they had ample authority to go after anyone involved with 911 anywhere in the world pursuant to Title 18 on 2001.09.10.
Cheney set up a paradigm where any 1% possibility would be treated as a 100% certain threat. That was simply insane: if he really beleived it, the logical thing to do would be to exterminnate the entire population of the world.
These people are deranged criminals Nathan. They are mass murderers. They spent seven and a half years waging an all-out war on the Constitution and laws of the United States for criminal purposes. I don’t call that “lawfare”, I call it what it is: gangsterism, subversion, and treason.
Finally, in regard to the “animating purpose” of my life, let me just quote you what I told the D.D.C. when I filed my amicus brief in the Guantanamo detainee cases five years ago:
“As stated supra, the interest of Amicus in these cases began on November 13, 2001, upon first reading the PMO, it being immediately apparent that the intent of that order was to circumvent compliance with the Geneva conventions and other laws enacted since the end the Second World War. I began with nothing more than a general commitment to advocate opposition to the PMO, but when the White House issued the “Fact Sheet” on detainees of February 7, 2002 it was apparent to me that the government was in fact violating the Geneva Conventions, and from that point forward I have considered my effort a volunteer criminal investigation to uphold the laws of the United States in the public interest.
“I claim no powers beyond those of a citizen of the United States, nor any authority beyond that which reason confers, but those suffice. Realizing that I would have to be absolutely on the level to have any chance of success, I voluntarily swore myself to defend the Constitution and laws of the United States, to be strictly impartial with regard to the facts and the law, and to act only in the public interest to the very best of my abilities. I have endeavored to live up to that oath ever since.”
Gitmo amicus at 7.
And I am still endeavoring to live up to that oath.
Charly
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 part. The man supports torture, he supported the rape of Iraq, he supports the various crimes of Israel, and he supports murdering civilians by remote-control air strikes. Not a pretty picture, but I actually find a lot to like in the guy aside from those ugly facts; however, the bottom line is that he’s clearly degenerated into a neo-fascist. The same is true of Julian Ku, who strikes me as a typical John Yoo-style Federalist Society political subversive. Roger I’m not so sure about, because Roger is a truly outstanding lawyer when conservative politics aren’t clouding the picture, and I get the sense he’s had his political views shaken some by the excesses of the Bush administration.
But I also try not to over-analyze people from their blog posts or papers. I’m sure they ‘re all very nice guys on a personal level, but none of this is about people or politics to me, it’s about the facts and the law, which is why I get so upset when people try to politicize or personalize these discussions. Like for example, when they accuse me of calling anyone who disagrees with me a Nazi. The truth is that I only compare people to Nazis when they advocate or commit the same arguments or crimes the Nazis did, and that’s a sad fact. The sad part being that so many people have allowed themselves to adopt such demented thinking over the last seven years… And here people used to wonder how it could have ever happened in a deeply cultured place like Germany.
It’s been seven and a half years. That’s long enough for even a lawyer who’s been led astray by their politics to find half a faint clue, but the dishonest excuses and fallacious rationalizations just keep coming. The inference is clear: they aren’t thinking clearly, mostly because they aren’t even trying.
Andthe only thing that matters to me are the facts and the law. Hard to imagine how so many lawyers could have such elaborate problems with that, yet here we are, up to our ears in CYA and bullshit.
So then there’s the biggest problem:
I don’t believe “lawfare” is anything more or less than an uncomplicated fraud to whatever extent it isn’t merely a pure figment or a delusion.
Your claim to the contrary exhibits a profound misunderstanding of the law, but that’s a big discussion. I can give you couple of quick thoughts to consider however.
1) The incompetence of the Bush administration and / or USG in matters of litigation, law enforcement, and military affairs is nothing that could accurately be descibed as a tactic by our enemies called “lawfare”. These people all swore to faithfully execute our laws, and if they don’t think they can handle the job then they should quit taking their pay under false pretences and resign. Those of them who have committed crimes should be prosecuted and disbarred for life.
2) It has become commonplace to for people on both sides of the political spectrum to speak of laws as “tools,” a notion rather intimately connected to the fallacious concept of “lawfare.” A tool is something which we manipulate to force a particular result. The law is supposed to represent an IMPARTIAL set of standards that protect and regulate all who come before it FAIRLY. I wish more lawyers would remember that, but then I’m a systems analyst and it’s a lot harder to bullshit a computer than a judge or a jury.
And that’s the whole provblem here: people trying to force results by cutting corners. The Nazis were all about getting results in the most direct and efficeient way. When people start talking about things like “lawfare,” I start smelling the smoke fromn Auschwitz, and wonder how any American could be so deluded.
Cheney and the gang have claimed they didn’t have the legal authority to act against the 911 conspirators without massive changes in the law. That was simply a lie: they had ample authority to go after anyone involved with 911 anywhere in the world pursuant to Title 18 on 2001.09.10.
Cheney set up a paradigm where any 1% possibility would be treated as a 100% certain threat. That was simply insane: if he really beleived it, the logical thing to do would be to exterminnate the entire population of the world. But of course, it was nothing but a lying excuse for doing aby damn thing they pleased regardless of the law.
“We never break the law” they said. BULLSHIT: they redefinedthe law such that anything they did was lawful by definition, just like the Nazis.
These people are deranged criminals Nathan. They are mass murderers. They spent seven and a half years waging an all-out war on the Constitution and laws of the United States for criminal purposes. I don’t call that “lawfare”, I call it what it is: gangsterism, subversion, and treason.
Finally, in regard to the “animating purpose” of my life, let me just quote you what I told the D.D.C. when I filed my amicus brief in the Guantanamo detainee cases five years ago:
“As stated supra, the interest of Amicus in these cases began on November 13, 2001, upon first reading the PMO, it being immediately apparent that the intent of that order was to circumvent compliance with the Geneva conventions and other laws enacted since the end the Second World War. I began with nothing more than a general commitment to advocate opposition to the PMO, but when the White House issued the “Fact Sheet” on detainees of February 7, 2002 it was apparent to me that the government was in fact violating the Geneva Conventions, and from that point forward I have considered my effort a volunteer criminal investigation to uphold the laws of the United States in the public interest.
“I claim no powers beyond those of a citizen of the United States, nor any authority beyond that which reason confers, but those suffice. Realizing that I would have to be absolutely on the level to have any chance of success, I voluntarily swore myself to defend the Constitution and laws of the United States, to be strictly impartial with regard to the facts and the law, and to act only in the public interest to the very best of my abilities. I have endeavored to live up to that oath ever since.”
Gitmo amicus at 7.
And I am still endeavoring to live up to that oath.
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 supports “murdering civilians by remote-control air strikes,” you are making a moral mistake. If you use the term “civilians” in a legal sense which includes al Qaeda fighters who claim that legal status precisely because they flout the laws of war, then you necessarily forfeit the prerogative to use the term “civilian” in the moral sense of innocents who ought not be attacked. To to so – to call al Qaeda terrorists moral civilians – is to participate in a truly disgusting moral inversion which destroys the very purpose of distinguishing combatants from civilians that was at the heart of the Hague and Geneva conventions you claim to value so much.
Again, fascism is a totalitarian ideology or religion of the state, where the individual is required to subject himself to the needs of the state in all things. Fascism is expressly anti-democratic, preferring power to be concentrated in a single cult-of-the-personality dictator. The prototypical fascist states were Mussolini’s Italy, Hitler’s Germany, and perhaps Franco’s Spain. More recent examples include – it cannot be denied – Saddam Hussein’s Iraq.
To call a man a fascist who disliked the Bush administration’s running of counterterrorism as matter of executive discretion and who, recognizing the moral contentiousness of the detainee policy, spent much of 2005 and 2006 attempting to have Congress – Congress! – resolve the issue democratically by specifing exactly what would and would not be permitted is absurd. It is to use the term not with a sense of its descriptive content, but as an slur. Yes, a slur.
I was afraid from the beginning that this engagement would be hopeless. I’m sorry to have been right.