War is governance: explaining the logic of the laws of war from a principal-agent perspective.

• Author: Benvenisti, Eyal
• Position: II. Testing the Hypotheses B. The Need to Move Away from Unilateral Constraints through Conclusion, with footnotes, p. 1388-1415

2. The Need to Move Away from Unilateral Constraints

   Initially, governments and armies relied on internal codes to discipline their soldiers. President Lincoln issued the most famous military manual, the so-called Lieber Code, on April 24, 1863, (97) to resolve internal governance problems that he and Henry Halleck, the general in chief, had identified. (98) The troops were by and large unprofessional, and there was a danger that they might excessively harm and antagonize civilians. (99) In addition, the governance of the newly occupied Southern states proved quite problematic for commanders untrained in civilian affairs. (100) The Code addressed these concerns by restricting participation in combat to those subject to the commanders' control and discipline, defining the permitted conduct in warfare, and providing authority and guidance for the effective governance of newly captured localities. From the perspective of the executive and the military, the Code promised one additional benefit: because it was a military code based on the authority of international law, it restrained Congress from undesired intervention. (101)

   Following the United States, several European nations adopted codes to regulate their armies' conduct during hostilities. Thomas Erskine Holland, whom the British government entrusted in 1904 with the task of compiling a "handbook" "for the information of H.M. land forces," (102) referred to "the example set by the United States in 1863" and emphasized that those instructions were, "of course, authoritative only for the troops of the nation by which they are issued, and differ considerably one from another." (103)

   But such unilateral codes failed to address the citizens' growing concerns. It was during the closing years of the eighteenth century and the first half of the nineteenth century that democracy began to take root on the European continent. A variety of regimes provided more avenues for the people to voice their concerns, even if they were not necessarily democratic in the modern sense. This stronger interest coincided with a communication revolution that had consequences no less dramatic than the "CNN effect" of a century later. The inventions of the telegraph, the popular press, and the railways "revolutionized the way Europeans ... thought about war." (104) From the Crimean War (1853-1856) onward, (105) journalists brought home the harsh realities of the battlefields of Europe, and the public reacted with furor. Governments lost their exclusive hold on information about battles and casualties. (106)

   As a result, citizens had both reason and opportunity to voice their opinions on the use of the military. Elenry Dunant was certainly not the first civilian to witness atrocities. Yet in the mid-nineteenth century, he was able to raise the awareness of a receptive civil society. (107) Two other members of the Geneva precursor of the Red Cross, Gustave Moynier and Louis Appia, could in 1867 make the point that governments have a parental obligation to take care of soldiers they conscript. (108) This worry coincided with the introduction of a universal draft in key European armies and the growing peace movement in Europe that was opposed to wars and their harsh consequences. (109)

   It was not only mounting civil society pressure that prompted European governments to explore more robust disciplinary measures beyond those provided by internal army restrictions. In many countries, the military posed a covert or overt threat of a coup d'etat and overthrow of the civilian regime, especially if the regime embodied a weak form of democracy. This threat materialized in several instances in Central and South America (110) and was apparent in French politics throughout the late nineteenth and early twentieth century, as evidenced by the events surrounding the Boulanger affair of 1889. (111)

   Moreover, and more importantly, in the 1860s European powers started to worry about their relations with foreign populations. With the rise of nationalism in Europe, prospective occupiers were concerned about potentially rebellious communities who would actively resist their rule, like the Spanish guerrillas who fought Napoleon or the French francs-tireurs who refused to end the war against the Prussians in 1870-1871. (112) Such governments sought norms that would restrain their own soldiers in their interactions with those civilians, thereby hopefully reducing civilian opposition. For similar reasons, these governments worried that an unruly army's excesses might "make[] ... the return to peace unnecessarily difficult." (113)

   Governments were also concerned about neutral powers' reaction to military aggression. There is evidence suggesting that governments and their military high commands sought to avoid causing any harm to neutral powers lest they join the enemy and to forestall complaints that neutrals might raise. (114) Finally, the wrath of global civil society--informed by the media revolution of that time--was also something to be reckoned with. As the British military manual of 1914 observes, "it is in the interest of a belligerent to prevent his opponent having any justifiable occasion for complaint, because no Power, and especially no Power engaged in a national war, can afford to be wholly regardless of the public opinion of the world." (115)

3. The Internationalization of Governance

   By resorting to international law to reduce domestic agency costs, governments obtained several benefits. As explained above, they were able to rely on victims and observers to act as effective fire alarms that would relay information about violations and might even independently prosecute violators. (116) At the same time, governments could assuage public concerns and demonstrate to their citizens and to foreign public opinion that they respected the lives of their soldiers by conferring with potential enemies. Moreover, IHL became a tool for bestowing legitimacy on practices that many would potentially regard as repugnant. (117) Specifically, the law of occupation, which required the occupier to protect the authority and resources of the ousted regime, functioned as a check against indigenous challenges to that regime. (118)

   Civil society activists such as Dunant and his colleagues also realized that their best strategy was to seek clear universal norms that nonstate "informants" could invoke against violators. The universal rules cut across political boundaries and empowered civil society activists vis-a-vis their respective governments. Their first victory was the Geneva Convention of 1864, which delineated the law on the treatment of the dead, wounded, and POWs (without defining who was entitled to POW status). (119) The convention did not impose onerous duties on governments or armies. Quite the contrary: they were required merely to allow voluntary Red Cross associations access to the battlefield to treat wounded or captured soldiers and dispose of the dead. (120) The Prussian Army complied with the 1864 convention as early as its war with Austria in 1866 and also provided treatment to enemy combatants without demanding reciprocity. (121)

   The success of that convention led to further efforts to develop the law, which included conferences in Paris (1867) and Geneva (1868). (122) These efforts, however, failed to produce binding texts. (123) They were stunted by the governments' responses. In what may have been a reaction to the aroused interest of civil society in regulating warfare, several European principals met in 1868 in Saint Petersburg. The declaration they adopted loftily invokes the exalted goals shaped by "the progress of civilization" and stipulates that what "[s]tates should endeavor to accomplish during war is to weaken the military forces of the enemy [and for that] purpose it is sufficient to disable the greatest possible number of men" rather than "uselessly aggravate the sufferings of disabled men, or render their death inevitable." (124) No doubt, the rhetoric was impressive and probably effective in disarming the grassroots opposition, even if the operative paragraph was quite limited and prohibited the use of only one specific type of ammunition, which can be loaded to foot soldiers' rifles (the same ammunition could be used by the artillery that was presumably under more reliable command). (125) Governments' main practical advantage from this agreement was better control of their own armed forces' use of ammunition. (126) Painful and unnecessary death was hard to justify at a time when reports from the bloody battlefields awaiting young conscripts stirred up public opinion.

   The 1874 Brussels Declaration--the product of yet another conference that Russia initiated--can also be seen as a direct outcome of changing political realities resulting from universal conscription and governments' growing attention to public opinion. One of Martens's speeches reflected these concerns, associating the "absolute imperative" to set rules based on international law with the transition of many European powers to obligatory military service. (127)

4. The Limits of IHL as a Mechanism of Governance

   The explanation of IHL's evolution during the second half of the nineteenth century as a result of growing P-A conflicts is further bolstered by three counterexamples. They relate to the evolution of specific areas of warfare or neutrality: the stunted evolution of the law on naval warfare; the strict rules that developed with respect to neutrality at sea; and the late appearance of the law on internal armed conflicts.

   1. IHL and Naval Warfare

      The laws of war discussed thus far relate to war on land. The story of the laws of war at sea, with regard to both their evolution and content, is strikingly different. This contrast raises a puzzle: if IHL is based on some notion of morality, there should be little difference between the rules of each theater of war. If IHL is based on reciprocity, we would also...