The Geneva regime as a social good

“Previous administrations at least paid lip-service to the existence of normative constraints by concealing and denying their covert operations. The Bush Administration… lets the mask slip, to the discredit of the nation and… at the peril of the soldiers whom so many of the rules are designed to protect.” – Byers, p. 135

Byers makes 4 very good points that touch the heart of what we've been calling the Rules of War in this quote:

1. norms are fragile and can be undone much more easily than they are made
2. when norms weaken, the conditions they were created to ameliorate can return
3. the "old days" of warfare were really quite unpleasant
4. norms have a strong element of reciprocity built in

I'd like to discuss these points.

1) Norms are fragile. We have to look at the definition of a 'norm'-- a standard of behaviour in the international community. They are formed by state practice, and gain strength on the basis of their universality and adherence by powerful states. We take many norms for granted, but we've seen how difficult it is to build them in the first place. How many years were required for the norm of landmine non-usage to take root, before it could grow further? True, there are a handful of norms that developed before the banned conduct (the norm against chemical weapons, for example), but on the whole, norms are fragile. Economists would call them 'social goods': they exist only because society/people recognise them as goods.

Norms exist and have force because states act in deference to them and allow themselves to be constrained by them. When norms are not in a state's interest, states do what they want but still try to respect the norm. This is partly out of self-interest (you don't cut your nose off to spite your face) but it is also to avoid shame and condemnation, in my opinion. (The Soviet Union was a master at this dance.)

So the danger of the Bush Administration's proud violation of norms on detainee treatment is much greater than that this bunch of detainees may treated poorly. The real danger is that in the future, all detainees may be treated in such a cavalier manner, including Americans. If enough states do this (or if enough powerful states do this), the Geneva regime would be seriously weakened, perhaps to the point of irrelevence. (Some already fear that this is happening to the nuclear non-proliferation regime, as more states gain nuclear weapons while bristling at the Nuclear Non-proliferation Treaty.)

2 & 3) Without the Geneva regime, the ugly old days of warfare could return. Let us remember the origins of the Geneva Conventions: after a battle during this Crimean War, in which the injured and marooned were abandoned to die. I don't know the specifics on the treatment of prisoners of battle at that time, but I'd venture to guess that the conditions were pretty grim. (Interestingly, there were customs amongst Europeans about prisoners even before the Geneva regime: the GC built on these elements of what we'd call customary international law.) And while it's easy to imagine voluntary compliance amongst European and North American powers in a war without a strong Geneva regime, given a common cultural reference and concepts of morality, what would happen in a war between Europeans and non-Europeans? Or amongst non-Europeans? This is point no. 4.

4)If nothing else, following the Geneva regime and helping to keep it strong is good tactical sense: reciprocity will protect your own troops. Reciprocity has a VERY long history in international law and relations, and is often the basis for clever solutions to mutual problems. So in a war between peoples of different cultures, where war has different conceptualizations, the GR helps keep your troops safe, since you're also following the rules on handling the enemy's troops. I'm convinced that this might be less important amongst Europeans (remember the Falklands War?) but is of the utmost importance in dealing with non-Europeans.

Take the US's conflict in Iraq. Why encourage a population with an already aggressive culture to be more violent? Clearly they will commit acts of barbarism, but we are to know better and to follow the GR carefully. Our adherence of the GR is both a good example and can help prevent the sowing of grivances for future atrocities.

Having said this, I agree whole-heartedly with Byers. Openly violating the GR is much worse than quiet violations, since blatent violations challenge the legitimacy of the regime and work to erode it. The Geneva regime is only as strong as states believe it to be.