the regulation of warfare: a paradigm for the legal approach to the control of international...

The Regulation of Warfare: A Paradigm for the Legal Approach to the Control ofInternational ConflictAuthor(s): Daniel FreiSource: The Journal of Conflict Resolution, Vol. 18, No. 4 (Dec., 1974), pp. 620-633Published by: Sage Publications, Inc.Stable URL: http://www.jstor.org/stable/173199 .

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The Regulation of Warfare

A PARADIGM FOR THE LEGAL APPROACH TO THE CONTROL OF INTERNATIONAL CONFLICT

DANIEL FREI Department of Political Science University of Zurich

The regulation of warfare as envisaged by the Hague and Geneva Conventions may be seen as a paradigm for the legal control of international conflict in general. This article suggests two complementary theoretical frameworks to explain the creation and application of norms regarding restraints in war: (a) a framework based on the theory of bargaining and (b) a framework based on the theory of integration. Each framework is described by a set of interrelated hypotheses. So far, they have the status of pre theory only.

Among the various forms of regulating, taming, or civilizing conflict, the limitation of warfare by certain rules can be considered to be the most elementary one. The ius in bello, as expressed in the Hague and Geneva Conventions, and other agreements (see Schwarzenberger, 1968), hence might be used as a paradigm for the legal regulation of conflict in general, quite apart from the fact that the problem is now being discussed again in the context of conferences concerned with the revision of the Geneva Conventions as well as in UN bodies. This article attempts to suggest two complementary theoretical frameworks to explain the variation in the

AUTHOR'S NOTE: This article was originally presented as a paper to the Ninth World Congress of International Political Science Association, August 1973, Montreal. The author is indebted to all who supported him by critical comments.

JOURNAL OF CONFLICT RESOLUTION, Vol. 18 No. 4, December 1974 ?1974 Sage Publications, Inc.

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Frei / REGULA TION OF WARFARE [6211

creation and application of prohibitions and restraints in war. The frameworks suggested can be summed up in the following general hypotheses:

- Norms regulating warfare are respected and developed if and only if, to either party in a conflict, the benefits derived from this norm are equal to or greater than the costs.

- Norms regulating warfare will be more often created and respected the higher the degree of political and cultural integration among the parties of the conflict.

By designing these two frameworks, we are drawing freely from the stock of theories and hypotheses in the literature developed so far; they have been derived from a wide range of contexts and projected onto the problem of the laws of warfare. The scope of this paper does not leave the confines of pretheory; so far, no systematic empirical research has been done in this field.

BARGAINING THEORY: RATIONALITY AND ITS HISTORICAL-CULTURAL CONTEXT

When stating that "norms regulating warfare are developed and respected if and only if, to either party in a conflict, the benefits derived from these norms are equal to or greater than the costs," the basic assumption behind this theoretical framework is one of complete rationality on the part of the parties involved-i.e., of coolly drafting the balance of benefits and costs.

Seen in a historical context, "rationality" constitutes a relative concept. While at one level the hypothesis is tautological, it nevertheless provides an a priori appropriate point of departure. One of the salient features in the history of warfare is the continuous breakthrough of a ruthless rationality and, correspondingly, the subsequent elimination of any irrational vestiges like knightly behaviour and humanitarian considerations. If the immediate task of warfare is victory, and if rationality is the only criterion to evaluate the ways and means suitable to this task, then all considerations of that nature had to disappear as "prejudices" (Frei, 1970). In the context of total war, it may thus make sense to starve the enemy's children by means of a blockade in order to shatter the enemy's morale. And it may also make sense to torture prisoners of war, since stopping torture represents an asset which can be "sold" to the other side for considerable concessions.



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THE CONCEPT OF RECIPROCITY

Whereas, on one hand, the principle of rationality brought about a complete breakdown of any traditional limitation in the conduct of war and hence the rise and triumph of total war, the same principle can also serve as a base for the building of new rules of warfare. The key notion here is "reciprocity" (see Simma, 1972: 294-295): It appears rational not to use those means of warfare and actions that the opponent also has at his disposal, because if the opponent retaliates, the advantage of using those means and doing these acts would be lost by suffering the corresponding costs caused by the opponent's retaliation. The situation here is identical with any disarmament and arms control situation; expressed in terms of game theory, this corresponds to a mixed-motive game in which there is competition and coordination-coordination inasmuch as both parties have an interest in avoiding common costs and in obtaining common benefits.

The principle of reciprocity stated this way may also be applied to situations where the various assets are disproportionately distributed: In this case, the norms will be respected if a combined overall reciprocity or a "network of reciprocity" (Gould and Barkun, 1970: 182) is given. For example, A may have superior strategic means to bomb B's population than B may have over A, yet B may hold more POWs than does A. A thus will have more to gain from a norm of restraint in treatment of prisoners, and B more to gain from a norm of restraint in bombing. Each will therefore expect the other to reciprocate restraint in both areas if the norms are to be respected in either.

Still, reciprocity does not explain why, in a certain context, norms regulating the conduct of war are respected or violated. Rather, reciprocity can be viewed as an intervening variable only. It is quite useful as a focal point around which one can draw the various independent variables.

HYPOTHESES

Looking for variables influencing reciprocity, we may distinguish four groups. They are summed up in Figure 1; interrelations among the variables are also indicated there.

Variables Concerning the Characteristics of the Norm Itself

H1: A norm will be more respected the higher its qualitative prominence. As Schelling (1963: 75) noted, the unambiguous and conspicuous character of an agreement is highly important for it to be respected: "Gas was not used



Frei / REGULATION OF WARFARE [6231

in World War II.... Gas only on military personnel; gas used only by defending forces; gas only when carried by vehicle or projectile; no gas without warning-a variety of limits is conceivable.... But there is a simplicity to 'no gas' that makes it almost uniquely a focus for agreement." On the other side, a rule like the one laid down in the Third Geneva Convention (Article 50, lit. b) which stipulates that prisoners of war may not in any circumstances be compelled to perform work within public utility services having military character or purpose, gives rise to endless discussions when it comes to this rule's application in actual situations.

Hia: Precedence may be a sufficient condition in the sense of qualitative prominence (Schelling 1963: 34, 67).

H2: A norm will be more respected the more easily its compliance can be supervised. In a conflict, the parties involved will jealously watch whether or not the other side is "honest" in its compliance of the norm concerned; hence only norms that are amenable to effective supervision will, in the long run, have a chance to be respected (Deutsch, 1971: 46).

H3: A norm will be more respected, the closer the parties correspond in their strategy and tactics of warfare. Although, according to Levine (1962), it is, even in asymmetric situations, possible to find a compensation for any one-sided advantage, in real life this may constitute serious impediments. This arises because the probability that the parties mutually agree on a set of norms is higher if the parties compare "the same with the same" than "an equivalent with an equivalent."

H3a: The more complex warfare, the less often such situations will occur.

H4: The more decisive a new weapon (or a new tactic), the more difficult it becomes to outlaw its use. According to Weizdcker (1969), all those weapons have finally been accepted which were thought "to be decisive for the winning of wars. Effective ethical verdicts were confined to those weapons the use of which would not turn the scale of war." This may be explained by the fact that, if a weapon or tactic is of high importance, a party's evaluation of its benefits and cost tends to become unstable-"such a big thing, wouldn't it nevertheless be a bargain to use it?"

A Variable Concerning the Power Relationship Between the Two Opponents

H5: A norm will be more respected the more symmetric the power-relation between the parties concerned. Equilibrium has been said to be a necessary condition for reciprocity (Simma, 1972: 192; Gould and Barkun, 1970: 165). Bindschedler (1971) very aptly stated that any party having an inferior power status will not hesitate to use all means available-including illegal ones-once the party is cornered. Apart from this fact, it is a commonly observable feature of conflicts that an inferior party will tend to improve its situation by breaking those "rules of the game" that might hinder the party from improving the situation (see North, 1968). Another reasoning leading to the same hypotheses runs as follows: In a bargaining



[6241 JOURNAL OF CONFLICT RESOLUTION

precedence

qualitative prominence

1+ ~~ easy super- simplicity vision of norms

?

/ \~~~~+ similar strategies tactics applied by both sides 1

prohibitions .

_ .. _ ~~~~reciprocity L band restraints

complexity of -~rsrit 0 wart are Pitofin war

importance of new weapons/tactics +

symmetry of power relations

(common values and standards)

Figure 1: THE BARGAINING MODEL SUMMED UP

context, a party respects norms if it has a guarantee for the compliance of these norms by the other side, or if the party disposes of "hostages" which

might be used as objects of reprisal measures. This is just another formulation of the general rule that a norm, in order to be respected, must

be located in a context of approximately equal power distribution, permitting tit-for-tat tactics between the opponents (Deutsch, 1971: 30). Or there must be an expectation of possible future role reversal between them, permitting tit-for-tat tactics in the forseeable future (Deutsch, 1968a: 163). Guerilla strategy is a typical "underdog"-strategy, and unfortunately, a considerable part of today's armed conflicts are guerilla wars.



Frei / REG ULA TION OF WARFARE [625]

Variables Influencing the Way the Opponents Evaluate Benefits and Costs

Although, at a first glance, bargaining theory seems to be an exclusive domain of full-fledged rationality, it would be a misunderstanding to assume that nonrational aspects could not be integrated into this framework. The logical place where such a nonrational element comes into the picture is the benefit/cost concept. The utilities involved in the issues at stake are not always measureable; they are subjectively perceived utilities only.

H6: A lasting agreement about certain norms will be more probable the more common the values and standards shared by the concerned parties. Since "sharing common values and standards" means nothing other than integration, this very general (and even trivial) hypothesis is a good link to the second theoretical framework to be discussed below.

Feedback Variables

H7: Positive and negative precedents affect the probability that norms are respected. One of these feedback effects has already been alluded to: A positive (that is, successful) precedent may have the function of "qualitative conspicuousness." On the other hand, negative feedback affects the base of commonly shared values and standards. These negative feedbacks can intensify the complexity of warfare which, in turn, may jeopardize the simplicity of norms.

H8: Agreements about norms tend to be unstable because the interest of one party in a certain norm may lead the other party to revise and to stiffen its bargaining position.This danger, genuine to any bargaining process (Stevens, 1958: 92), is particularly acute in high-tension conflicts where the parties tend to perceive the conflict in terms of zero-sum rationality: "If the enemy is interested in a norm, that's because he will profit a great deal from that; but his profit is my loss-hence I play a tough strategy."

INTEGRATION THEORY: THE CONCEPTS OF INTEGRATION, COHESION, SOCIAL DISTANCE AND REFERENCE GROUPS

Integration is the central concept of the second theoretical approach to the study of norms regulating the conduct of war. This second approach implies that norms are respected if and only if the parties concerned reach a certain consensus on the desirability of these norms or, in other terms, that these norms are internalized within both parties in a conflict. Hence, "cohesion" is the intervening key variable in the framework of integration



[626] JOURNAL OF CONFLICTRESOL UTION

theory as understood in this context. Synonymously related to this is the concept of social distance between opponents: "Integration" and/or "Consensus" means little else than a small social distance between actors.

The relevance of social distance for methods of conflict resolution has been emphasized in many fields outside law. For instance, zoologists have found that aggression is restrained whenever it is directed against members of the same species; animals observe certain rituals, rules, and signals, and a fight becomes a kind of "civilized" duel (Eibl-Eibesfeld, 1970: 163). Primitive groups have been observed to rank-order the use of hostile actions according to the opponent's degree of kinship: invectives against brethren, sisters, and parents; boxing against relatives of the second degree; stones and sticks against relatives of the third degree; knives and spears against relatives of the fourth degree, etc. (Le Vine, 1961; Pospisil, 1971: 5). Synonymously, one may also use the concept of reference groups; expectations regarding behavior regulated by certain patterns nearly always are confined to a certain subset of persons. Hence, the degree in which warfare is regulated depends on the scope of persons or groups used as references, and on the degree of cohesion within these groups. Accordingly, the question to be asked is: Upon what (Independent) variables does the shaping of social distance depend? These variables and their interrelations are summed up in Figure 2.

Variables Relating to the "Ideologization" of Conflict

119: The conduct of war will be more comprehensively subject to limiting rules, the closer the cultural and linguistic distance between the parties concerned (Muhlmann, 1963: 221). Perhaps the development of a sense of cultural identity of the "civilized nations" (see the Statutes of the International Court of Justice, Art. 38, lit. c) did, in the nineteenth century, support the development of rules concerning the conduct of way. Today, in a pluri-cultural world, the importance of this factor seems to have declined.

H1O: The conduct of war will be more brutal, the more the parties concerned perceive each other as ideological foes. Ideological negation of the opponent's norms is the most powerful force impeding the formation of a consensus on norms. In its most extreme form, ideological thinking disqualifies ideological outgroups from membership in human society; they are perceived as "hostes" instead of "inimici" and as "foes" instead of "opponents" (Schwab, 1968). The mechanisms by which ideologization is being transmitted into brutalization are well known. For example, ideologization contributes to depersonalizing the enemy-"it is easier to kill a 'Communist' or a 'Viet-Cong' than the same person seen as the father of two children" (Finlay et al., 1967: 3, 18). This applies to the non-respect of rules regulating the conduct of war as well as to killing.



Frei / REGULATION OF WARFARE [627]

It is one of the basic features of twentieth-century world politics that conflicts tend to have an ideological dimension. Therefore, it is important to inquire further into this matter and to ask the question: Upon which variables does the process of ideologization depend? Apart from historical circumstances, like the reintroduction of ideology as a central issue by the Russian Revolution of 1917 (Laloy, 1966: 162; Schwab, 1968), there are at least three general factors which have had an impact in this context:

H11: The more total a war, the more ideological political attitudes of peoples will become. The reason for this relationship is that the enormous effort required by every citizen of a nation engaged in modern warfare requires sustained motivation; motivation can be generated and/or reinforced by ideological arguments (Bindschedler, 1971). This is but a special case of the general hypothesis suggested by Simmel, according to whom it is useful, in a realistic conflict, to hate the enemy (Coser, 1956). Vice versa, ideologization can help to overcome any psychological inhibitions about the use of all the weapons available in total warfare.

H12: The greater the need for internal cohesion, the greater the tendency to ideologize conflict. It is well known that the internal cohesion of a group will be considerably reinforced by giving this "in-group" positive attributes in contrast to an evil, wicked, devilish, aggressive "out-group." In other words: Ideologization is a good means to integrate "in-groups" while, at the same time, ideologization will disintegrate and allow the breaking of norms existing between the groups (Finlay et al., 1967: 10 f.). Based on this general hypothesis, one would therefore expect a significant neglect of the rules of warfare: Whenever the internal legitimacy and stability of a government is being questioned, whenever a regime needs some justification for internal repression, and, as a general tendency, whenever a closed monolithic system offers no opportunity for expressing dissenting opinions (Finlay et al., 1967: 21).

Variables Belonging to the Context of the Sociology of Organization

In complex organizations, like the governmental and military structures of a country, there are ongoing processes which tend to weaken the impact of humanizing principles of warfare.

H13: The more complex an organization, the greater the attenuation of responsibility. According to Westley (1966), the mandate the public gives to the army to train itself in violence, in planning for violence, and in violence as a defense creates for military men an acceptance of violence which is more complete than that of the public's acceptance of violence. The army, in turn, gives an implicit (and sometimes explicit) mandate to its



[628] JOURNAL OF CONFLICT RESOLUTION

field commanders for more violence than the public would ever have tolerated. This process of overdrafting the mandate is continued through the entire hierarchy down to the individual fighter. This cumulative effect leads to a decay of norms that, as a matter of principle, would never have been fully accepted and supported by the men sitting in the top position of the hierarchy.

H14: The more complex an organization, the greater the effect of the cumulative distortion of judgement. The cumulative distortion of judgement hypothesis as described by Livant (1965: 65) corresponds, on a cognitive level, to what is being postulated, on the action level, by the attenuation of responsibility hypothesis. The distorted perception of the enemy will also accumulate and, if continued through the whole hierarchy, lead to a very negative image of the enemy. As a matter of fact, this may be one of the mechanisms for reinforcing ideologization, which will in turn have a disastrous effect on the efficacy of rules regulating warfare.

A very difficult problem is posed by the role of the soldier within his society. A general hypothesis might be:

H15: The more the military man feels integrated into a military subculture (rather than to the general national culture) the more he will be willing to respect norms regulating warfare, at least when these norms involve military people. In order to test this hypothesis, it would be necessary to develop a typology concerning the role of the military; at least three types of roles must be envisaged: (a) profiled subculture feeling, but closely supervised by civilian government (e.g., British Army); (b) elite subculture (e.g., Uganda Rifles); (c) militia type army representing the nation and feeling fully identical with the nation's cause. A priori, one would expect a decreasing amount of respect for rules of warfare among these three types. However, such a hypothesis is all too sketchy unless relevant findings in the field of military sociology are taken into account.

Variables Originating in General Theories of Integration

Being a highly developed field of research, the theory of integration offers a great variety of hypotheses that can be related to the problem of regulating warfare. The following hypotheses are by no means exhaustive. However, they may shed some light on the principal approaches in this field:

H16: The longer the duration of a conflict, the greater the probability of developing common patterns of behavior by the parties. This hypothesis was postulated by Coser (1965: 86) and assumes that conflict in general tends to have an integrative effect. Applied to the present problem, this would mean that opponents that have had few previous conflictual contacts will hardly share many common norms regulating warfare, whereas in the course of conflict itself, such norms may emerge and continue to develop.



Frei / REGULA TION OF WARFARE [629]

H17: Norms regulating warfare will be developed if a dominant power is interested in having them developed. This hypothesis is based on the hypothesis suggested by Deutsch (1968a: 70ff.) according to which integration processes so far known in history are mostly due to the impact of a leading power. The question might then be asked whether or not the development of the Geneva and Hague Conventions in the last quarter of the nineteenth century can be ascribed to such a leader in the international system, and whether or not the present-day breakdown of these rules can be attributed to the lack of such a leader. At least for the laws of maritime warfare, such an influence can be attributed to Great Britain. The concentration of a clear preponderance of power in the hands of one or a few states, or, in other words, the existence of a substantial power differential, is important also for the enforcement of rules (Deutsch, 1968b: 64f).

H18: Consensus about norms tends to break down if the parties concerned differ substantially in their economic and/or power level. By contrast to H5 (symmetry of power relations) this is an application of the classic "anomie" hypothesis. If high aspirations are contrasted by rules that put restraint on a smooth acquisition of those values, the party concerned will feel driven to get rid of these restraints by rejecting the rules. Maybe this is one of the prime factors that have led to the breakdown of the classical rules of warfare in guerilla war and colonial war in general; at the very root of any guerilla war, there is always a general and absolute rejection of the established rules.

A related hypothesis can be formulated by drawing from systems theory and learning theory:

Hl9: The greater the number of new states entering the international system, the higher the probability that consensus about norms will disintegrate. New actors in a given system have not "adapted" themselves-i.e., they have not yet learned the rules governing the system. If they enter the system in great numbers, as was the case in the period of decolonisation from 1947-1965, this may cause a general breakdown of these rules. On the other hand, however, this tendency may be somewhat mitigated by "neophyte" zeal to adopt the established rules. Although this tendency can be observed in many ways (e.g., in the desire of any new state to become a member of the United Nations), there is also, in regard to international law in general, a considerable counteracting factor at work inasmuch as the political elite of most new states originated in "national revolution" movements; they therefore tend to reject the established norms since these norms are viewed as those of the former enemy (Falk, 1962). Another reason for the possible breakdown of norms may be seen in the fact that the widening of international system membership has led to the distortion of meanings and to a deterioration of once apparently secure Western values (Gould and Barkun, 1970: 188).



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Variables Relating to the Concept of Sanctions

Any norm, in order to be effective, must either be internalized or enforced by sanctions; these two mechanisms are complementary to each other. However, it is a well-known truism that sanctions, in order to "correct" or to "punish" deviant behavior, work only if there is somebody to initiate sanctions-in other words: if the community is already integrated to such a degree that sanctions become probable. Thus, sanctions imply the existence of integration (Pahler, 1969: 906). The crucial aspect of sanctions, hence, is what has been termed "sanction cohesion" (Reismann, 1971: 279). Seen this way, the complex of sanctions deserves limited attention only because the crucial variables concerning sanctions are the same upon which integration depends. As far as the law regulating the conduct of war is concerned, there are two types of sanctions to be envisaged: sanctions originating in the international system and sanctions originating in the domestic system. As there is, in the field of the law of warfare, no international authority capable of sanctions, sanctions will only be effective by mechanisms of reciprocal measures-i.e., reprisals. This has been dealt with in the preceding section of this article; and as a matter of fact, sanctions originating from the international system stand, in a theoretical context, in a dependent relationship to all these variables which have been mentioned earlier when designing a bargaining- theoretical framework for the efficacy of the law of warfare. However, as one of the most important levers of sanctions, world public opinion is an important intervening variable:

H20: International sanctions (or reprisals and threats of reprisals) are the more effective, the more the country is susceptible to world public opinion. More precisely, countries ruled by authoritarian or totalitarian governments as well as countries having a low degree of political transparency (due, e.g., to lack of mass media or low level of literacy) are "hardened" against this type of pressure.

As to the sanctions from the domestic system, we may propose a hypothesis contradictory to hypothesis 15:

H21: The more the military constitutes a subculture within the national political culture, the less effective civilian control over the army's respect for the law of warfare will be. As indicated in the context of hypothesis 15, it would be necessary to refine this entire complex of variables by subdividing the respective theoretical dimensions. The final test, however, can only be brought about by empirical research which, so far, has not been attempted.



Frei / REG ULA TION OF WARFARE [631]

cultural/linguistic distance

reciprocity susceptibility for of reprisals world public opinion

total warfare

depersonalization +

of the enemy ideologization

need for inter- \ sanctions nal cohesion

subculture feeling of military + +

depolarization

elite power + prohibitions

duration of conflict + cohesion.+j? and restraints in war

new system members/

difference in econom.!/ Ao/ power level Anomie|-

attenuation of +~ respons ibi li ty organizational

complexity + Cum__,.uulative

distortion

Figure 2: THE INTEGRATION THEORETICAL MODEL SUMMED UP

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