Eric Posner in WSJ on Hamdan

Eric Posner writes today in the Wall Street Journal on the Hamdan decision. Eric is a law professor at the University of Chicago who has gradually brought his law and economics orientation to bear on problems of international law, including the law of war. The crux of his writing on the law of war is, unsurprisingly, basic game theory and what it says about the likely success or lack of success over time of treaties such as the Geneva Conventions. The core concept in this article is reciprocity; the basic point is that legal regimes that lack outside enforcement must depend upon reciprocity between the parties to make them work over the long term. If reciprocity is lacking, either one side to the other or each side to the other, then treaty regimes break down. The parties cannot see what they have to gain. Eric says that Common Article Three lacks reciprocal motivations - whether we obey Common Article Three or not, Al Qaeda will not. If that is the situation of wars supposedly governed by Common Article Three generally over time, then the legal provision will either be revised, formally or informally, or else simply fall into disuetude.

In general, I agree with the conclusions that Eric reaches regarding Common Article Three and the struggle against Al Qaeda. But I would add a couple of comments on the argument more broadly:

First, I do not think that it is historically the case that the reason why governments in internal conflicts have resisted application of Common Article Three was concern over a lack of reciprocal treatment by insurgent forces. It follows from the logic of Eric's game theory, but in historical fact, for the internal conflicts I have been able to think of - off-hand, to be sure - over the last thirty years, and certainly those I have been involved in monitoring, such as the 1980s wars in Central America, wars in the former Yugoslavia and Central Asia, lack of reciprocity was not the issue. In every case I am aware of, the concern of the government was entirely not to give reputational legitimacy to the guerrillas.

It did not matter how many meetings the ICRC or others held with governments telling them that jus in bello was different from jus ad bellum, that granting a certain international minimum level of treatment to those captured would not result in greater international legitimacy for the rebels - they did not believe those claims and, on balance, I think they were correct, often unfortunately so. The best outcomes occurred when governments, such as the Salvador government in the 1980s, agreed to treat prisoners as though Common Article Three applied without admitting that it actually did. Which, note, is where we were as a matter of policy before Hamdan - a policy of applying Common Article Three standards without actually agreeing that it applied.

Second, the lack of reciprocity in Common Article Three is as follows. On the one hand, the standard of conduct is unitary - it applies to any party to the conflict, whether state or insurgent. (This suggests, by the way, that the standard of what kind of court suffices for Common Article Three purposes is not necessarily one defined by what one expects of organized governments, but instead the far more informal standard of what one might also expect of insurgents and guerrillas - the Hamdan court accepted that the standard is one drawn from governments, because they seem not to have understood that Common Article Three applies to insurgents as well as governments. This is a significant point for Bush administration lawyers to understand in considering what a "regularly constituted court" means - what would it mean, for example, in the jungles of Columbia?) On the other hand, the obligations on each party, although on each party, are not reciprocal - see the ICRC 1949 Commentary on Common Article Three - and are an obligation of that party no matter what other parties do - there is no right of reprisal for violations by the other side.

Third, one should not assume that a standard of obligation, even though not truly supported by reciprocity, has no effect over the long term. The ICRC has always understood the support of "leading" states and "civilized nations" in pressing a standard of conduct - it understands, put another way, that the standards of international law of war must simultaneously be realistic as to what parties will do, in relation to military necessity and reciprocity, while still endeavoring to 'punch above their weight' in appealing to reputational interests and public opinion, and so on. One thing Eric might consider, in a future article, is explaining why it is that wars without quarter - fought as internal civil wars, for example, in Latin America during the 19th century, with many men slaughtered - gradually faded away generally in the 20th century. One can give a game theory explanation of interest for that, but in order to be convincing - to show that it was not the effect of a legal norm punching above its weight - it would have to deal with the history of the decline of acceptance of war without quarter as an acceptable method of war.

Those are really broader, more theoretical considerations on reciprocity, game theory, and reputational interest in international relations and legal theory. As regards the specific views Eric has on Common Article Three, I find them overall persuasive.



Exerpts:

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Apply the Golden Rule to al Qaeda?

By ERIC POSNER
July 15, 2006; Page A9
Wall Street Journal

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. The U.S. obtained no advantage from obeying Article 3, because al Qaeda itself clearly had no interest in complying either. However we treat them, they will torture and behead our soldiers.

The legal argument was that the very terms of Common Article 3, which bans various kinds of ambiguously defined inhumane treatment, apply only to conflicts "not of an international character," and the conflict with al Qaeda was international. Since the Supreme Court rejected this argument in Hamdan, the Bush administration now says that, as a matter of law, common Article 3 does apply to al Qaeda.

This means two things. First, the administration must use "regularly constituted" courts to try detainees for war crimes. Second, the conditions of detention as well as interrogation procedures must not be "inhumane," "humiliating" or "degrading."

If these terms are interpreted broadly, then the military commissions must be modified so that detainees have greater procedural protections, and the conditions of detention and (if media accounts of harsh treatment are correct) interrogation procedures must be improved. The Bush administration now argues that these terms should be interpreted narrowly, and thus that existing practices do not violate them. To validate this narrow interpretation, the administration must persuade Congress to explicitly approve the military commissions that the president previously established by executive order. (It is debatable whether it needs Congress to validate the interrogation procedures and conditions of detention.) It is therefore too soon to tell whether Common Article 3 will ultimately produce large changes (or no changes) in its counterterrorism strategy.

Given the ambiguity of Common Article 3, it is hard to fault the Bush administration's strategy. States always interpret treaties narrowly when broad interpretations do not serve their interests, and the Bush administration's interpretation of the ambiguous substantive language, like its earlier interpretation of the "not of an international character" language, is at least reasonable.

It also appears that the administration has not abandoned the original policy judgment against applying Common Article 3 to al Qaeda fighters (though it has not advanced that argument publicly). That judgment was sound, and as Congress decides what to do next, it should consider it seriously.

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.

Until Hamdan, Common Article 3 was thought to apply chiefly to internal conflicts such as civil wars and insurgencies. But governments quickly realized that it did not stop insurgents from committing atrocities against soldiers and civilians, and so there was no advantage for the government in using self-restraint against these insurgents. For these reasons, governments quickly found ways to avoid admitting that Common Article 3 applied to their internal conflicts.
Other states mostly did not object because their soldiers and civilians were not involved. The failure of Common Article 3 led to the negotiation of additional Geneva Protocols in the 1970s. The protocols contained stronger rules -- rules which had no visible effect on the conduct of parties in insurgent conflicts, and which the U.S. never ratified.

Common Article 3 failed because of the absence of reciprocal interest on the part of relevant parties to comply with its provisions. This type of reciprocity is also absent in the conflict with al Qaeda. There is no reason to think that if the Bush administration improves or worsens the conditions of detention it will have any effect on al Qaeda's behavior toward captured Americans or other westerners. Nor is there any reason to think that al Qaeda will appreciate the improvement in military commissions commanded by the Supreme Court, and reciprocate by offering "regularly constituted" trials to its victims before beheading them as enemies of Islam.

Many people say: That's the point. The U.S., by complying with the Geneva Conventions, shows the world that it is civilized, while al Qaeda is barbaric. But this claim begs the question whether Common Article 3 contains the right rules for a civilized nation to follow while defending itself against foreign terrorists that have the power -- but not the territorial rootedness and vulnerability -- of a state. States did not draft Common Article 3 in 1947 with al Qaeda in mind.

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.

Mr. Posner, a professor of law at the University of Chicago, is coauthor of "The Limits of International Law" (Oxford University Press, 2005).