War Is Governance: Explaining the Logic of the Laws of War From a Principal-Agent Perspective

AuthorBenvenisti, Eyal

Introduction

Intuitively, the laws of international armed conflict (hereinafter "IHL") are meant to regulate interstate action. As such, their very existence is puz- zling: Why would opponents bent on destroying each other's capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics?

Traditionally, two kinds of answers have been provided to this question. On the one hand, moralists regard IHL as being inspired by morality.1 On the other, realists explain the evolution of the law on utilitarian grounds and view compliance with it as a product of the threat of reciprocal retaliation.2 We contend that both answers address only part of the dynamics of warfare and are therefore only partially convincing. Morality was obviously an im- portant factor in the promotion of IHL, especially by nonstate actors. But it is difficult to reconcile morality with a law that strictly relies on state con- sent and is based on state practice, often reflecting not the aspiration to strive for just war during battle but rather the primacy of military necessity.3 Nor can morality explain the codification process of IHL, which was domi- nated by military experts and governmental officials keen on promoting na- tional interests.4

The prevailing "retaliatory" explanation of IHL makes more intuitive sense at first blush. The tit-for-tat scenario can be modeled as an indefinitely iterated prisoner's dilemma and illustrated by real-life examples, such as the trench warfare of World War I5 or specific stories concerning the treatment of prisoners of war ("POWs") during the two World Wars.6 But this expla- nation, too, does not withstand close scrutiny as the main explanation for IHL's continued efficacy. To be effective, reciprocity requires that each side have ample information confirming the opponent's intention and ability to comply with the law indefinitely. This condition is rarely met during com- bat. The noise of the battlefield typically induces adversaries to interpret their enemy's mistakes as intentional violations of the law and prompts them to retaliate in kind. More seriously, the shadow of the future is often quite narrow. For combatants actually involved in combat, each battle may well be their last; for their commanders, it may be crucial to eventual vic- tory. This is especially true during the closing phase of a war: the losing side, with its back to the wall, cannot be expected to obey laws that guarantee its defeat; and the winning side, on the cusp of victory, is unlikely to worry about reprisals for its own breaches of the law.7 With such an anticipated endgame, cooperation based on an iterated prisoner's dilemma situation will quickly unravel.

Moreover, the retaliatory tit-for-tat explanation misses many aspects of the dynamics of war that reflect coordination games such as chicken or bat- tle of the sexes rather than prisoner's dilemma. The prisoner's dilemma story cannot explain the codification process of IHL during the second half of the nineteenth century, which was characterized by pressure emanating from the stronger European nations to clarify the law, in particular the law of occupation.8 As in the classic battle of the sexes game, the weaker countries were far less eager to accept a law that would benefit their more powerful enemies, but they preferred some law that would constrain any future in- vader or occupier rather than no law.9 As this Article will explain, other wartime situations reflect the chicken game, where some parties have a dom- inant preference to abide by IHL regardless of their opponent's choice.10 In these scenarios, IHL serves as an effective tool to promote parties' self-inter- est. In the Article, we argue that this self-interest, which is independent of the opponent's attitude toward compliance, is what explains the evolution and nature of IHL. This self-interest was met by the weaker states' gratitude for being granted some protection against evil rather than no protection.

While we do not reject the two traditional explanations for IHL as addi- tional layers of explanation for some IHL rules and for the observance of IHL in some armed conflicts, we think that neither of them can account for the drive to codify, modify, and further develop IHL since the mid-nine- teenth century, nor can they explain its continued viability. We submit that these two explanations fail to grasp a crucial factor in the dynamics of mod- ern warfare: the need for each side to control its own forces. The leaderships of contending armies may indeed be motivated by moral concerns or locked in a reciprocal relationship, but this is not why they rely on IHL; for this they need no formal law, just as the princes and kings in earlier times could rely on their shared understandings about the law. Modern militaries and their civilian leaderships need IHL-indeed, a kind of IHL that is specifically tailored to control the agents-because they collectively face a daunting challenge of controlling their respective troops, whose interests may diverge from their own. During war each decisionmaker has a different future to consider: the state's president will have a long-term vision, contemplating the transition to peace, while the army commander will focus more con- cretely on the grand picture of the war. But the foot soldier at the service of them both has a rather concrete future to consider-how to be effective and survive the current assault on enemy positions. The need for law to maintain discipline within the fighting forces rises in direct relation to the growing disparity between the different "futures" that shape each actor's preferences.

In the Article, we explain why a codified, specifically designed IHL is necessary for resolving hierarchical governance challenges more than hori- zontal relations between armies. We believe that this intricate internal di- mension of warfare, which traditional accounts of IHL largely miss and scholars of international law often disregard, provides an important key to an understanding of IHL's development and resilience since the mid-nine- teenth century. This Article looks beyond the veil of sovereignty and exam- ines the interplay between the various domestic actors whose interests are implicated by war. Our rationale is informed by the observation that states engaged in armed conflict are not unitary actors but rather complex institu- tions that include internal chains of command within the echelons of power, accountable to a civilian government and ultimately to the public.

To explain this counterintuitive hypothesis, we must begin by prying open the black box of "the state" and examining the complex interaction between the civilian and military apparatuses seething beneath the veil of sovereignty.11 Such an examination will reveal that the prevalent assumption that IHL is designed only to regulate interstate relations is too simplistic. The map of the battlefield may show one state fighting another, but there are other less visible and more complex intrastate battles raging simultaneously between different domestic actors, each seeking to control the conduct of the army and shape the war's outcome. As scholars of political science have long observed, controlling the armed forces, especially during war, is one of the most acute challenges for any government. In democracies, one of the "most basic of political questions" is how "to . . . reconcile a military strong enough to do anything the civilians ask, with a military subordinate enough to do only what civilians authorize."12 This question leads to the following:

[A]n ineluctable and potentially dangerous tension between military force and constitutional government [which] makes for a vexing dilemma. Al- though raising and deploying armed forces may be indispensable for sus- taining a secure environment for constitutionalist politics, creating a safe place . . . for military institutions [is] among the most troublesome chal- lenges of a constitutionalist order.13

There is conflict not only between the high command of the armed forces and the civilian government that seeks to control it. Resorting to force cre- ates conflicts between civil society and elected officials, between elected offi- cials and military commanders, and between those commanders and combat soldiers. IHL is an external tool designed to address many of these internal conflicts.

These diverse conflicts can all be framed as principal-agent ("P-A") conflicts, situations in which each "principal" (the public, elected officials, high command) necessarily employs an "agent" (elected officials, high com- mand, combat soldiers, respectively) to further its goals and secure its inter- ests. The delegation of authority to engage in combat exposes the principal to the risk that the agent might act in its own interest rather than in that of its principal.14 Agency costs tend to be high during wartime.15 The principals want to win the war, but they are also aware that it will be necessary to reestablish peace afterward. The principals therefore fear that their agents might act too aggressively, undermining the principals' long-term goals. Conversely, the military may have similar concerns when it is the civilian government that weighs only short-term interests at the expense of long- term ones, while soldiers are primarily concerned about their own survival during each engagement. Agency slack is high due to the opportunities for the agents to shirk their duties with impunity during combat.

The principal can employ several measures to reduce such agency costs by, for example, monitoring the agent or imposing penalties for violations. But incomplete information limits the high command's ability to control low-ranking combatants. The civilian government suffers not only from in- complete information but also from inadequate expertise to assess it and a limited ability to restrain the military, if necessary.16...

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