The End of Reciprocity : Terror, Torture, and the Law of War

Why should America restrain itself in detaining, interrogating, and targeting terrorists when they show it no similar forbearance? Is it fair to expect one side to fight by more stringent rules than the other, placing itself at disadvantage? Is the disadvantaged side then permitted to use the tactics and strategies of its opponent? If so, then America's most controversial counterterrorism practices are justified as commensurate responses to indiscriminate terror. Yet different ethical standards prove entirely fitting, the author finds, in a conflict between a network of suicidal terrorists seeking mass atrocity at any cost and a constitutional democracy committed to respecting human dignity and the rule of law. The most important reciprocity involves neither uniform application of fair rules nor their enforcement by a simple-minded tit-for-tat. Real reciprocity instead entails contributing to an emergent global contract that encompasses the law of war and from which all peoples may mutually benefit. Half-title 3 Title 5 Copyright 6 Dedication 7 Contents 9 Introduction 11 THE ARGUMENT 17 THIS BOOK’S ORGANIZATION 21 PROS AND CONS OF RECIPROCITY 23 RECIPROCITY AS A THEME IN PUBLIC DEBATE 25 RECIPROCITY AS A “QUASI-SOCIAL” NORM 26 DIFFERING CONCEPTIONS OF RECIPROCITY 27 EXAMPLES OF RECIPROCITY IN WAR 31 1. German Reprisals against French Civilians in World War II 32 2. Targeted Killing of Al Qaeda Leaders 33 PART ONE: RECIPROCITY IN HUMANITARIAN LAW 39 1 Reciprocity in the Law of War: Ambient Sightings, Ambivalent Soundings 41 RECIPROCITY AS PRIMITIVISM 41 REPRISAL AS JUSTIFICATION 44 NORMAL EMERGENCY AND ABNORMAL EMERGENCY AS THE ABSENCE OF RECIPROCITY 46 WHEN RECIPROCITY THROUGH RETALIATION IS IMPOSSIBLE: ATTRACTIONS OF ANTICIPATORY SELF-DEFENSE 50 ASYMMETRICAL WARFARE: IMPETUS TO ANTIRECIPROCITY 52 THE LAWOFWAR AS OXYMORON? 54 2 Reciprocity in Humanitarian Law: Acceptance and Repudiation 59 INTERNATIONAL LAW 61 DEMARCATING THE RIVAL DOMAINS 72 1. The Realm of Antireciprocity 72 2. The Realm of Reciprocity 74 BILATERAL RECIPROCITY IN MULTISTATE WAR? 78 THE LAW OF TREATIES AND REMEDIES FOR BREACH 80 HUMANITARIAN LAW AS STATUTE OR CONTRACT? 84 DUTIES OWED TO ALL THE WORLD: ERGA OMNES OBLIGATIONS 86 TWO TYPES OF RECIPROCITY WITHIN TREATIES 88 CUSTOMARY LAW, PEREMPTORY NORMS, AND INDIVIDUAL DUTY 92 RIGHTS AND DUTIES OF AL QAEDA MEMBERS 98 IS THE COMBATANT/CIVILIAN DICHOTOMY OBSOLETE? 103 WHAT GOES AROUND... 106 OBSTACLES TO CHANGE, FORCES FOR LEGAL ANACHRONISM 108 COHERENCE AND CONTRADICTION WITHIN HUMANITARIAN LAW 111 THE RECIPROCITY OF TU QUOQUE 113 MORAL CONFLICT WITHIN HUMANITARIAN LAW 116 3 Humanitarian vs. Human Rights Law: The Coming Clash 121 ARE WE REALLY AT WAR? 124 TREATING COMBATANTS AS INDIVIDUALS, OR AS MEMBERS OF ARMED GROUPS? 131 HUMAN RIGHT VS. HUMAN RIGHT 143 HUMANITARIAN LAW AS AN INVITATION TO WAR? THE LAW OF WAR THROUGH A DARK, POSTMODERNIST LENS 152 PART TWO: THE ETHICS OF TORTURE AS RECIPROCITY 159 4 Is Torture Uniquely Degrading? The Unpersuasive Answer of Liberal Jurisprudence 161 WALDRON ON DWORKIN AND TORTURE 162 WAR IS BRUTAL, LAW PERMITS WAR, LAW IS BRUTAL 164 WAR AS TORTURE 165 HUMANITARIAN SENSIBILITY AND THE CONCEALMENT OF BRUTALITY: FORM VS. SUBSTANCE 167 THE MEANING OF BRUTALITY AND DEGRADATION 169 THE LAW DOES NOT BRUTALIZE, AS AMERICA DOES NOT TORTURE 170 THE EXPRESSIVE MEANING OF LAW’S BRUTALITY 173 THE ATTRACTIONS OF LEGAL AMBIGUITY 174 5 Fairness in Terrorist War (1): Rawlsian Reciprocity 176 RAWLS ON RECIPROCITY 178 WHEN JUSTICE REQUIRES DIFFERENT RULES FOR DIFFERENT PARTIES: GENEVA ADDITIONAL PROTOCOL I 182 RAWLS’S “LAW OF PEOPLES” AND TERRORIST WAR 184 6 Fairness in Terrorist War (2): Kantian Reciprocity 188 LEGAL JUSTICE AS A BALANCE OF BENEFITS AND BURDENS 188 TERROR, TORTURE, AND THE SYMMETRY OF RISK 193 H. L. A. HART ON “FAIR PLAY” 195 THE LAW FOR TERRORISTS IS NOT THE LAW FOR NATIONAL LIBERATION MOVEMENTS 196 EXAMPLES OF FAIRNESS AS COMMON RULES 198 1. The International Criminal Court and Universal Jurisdiction: Doubts Based on Reciprocity 198 2. Reciprocity in International Regulatory Regimes 200 BEYOND RECIPROCITY, BEYOND JUSTICE 202 7 Humanitarian Law as Corrective Justice: Do Targeted Killing and Torture “Correct” for Terror? 205 A FAIR FIGHT IS A MEANINGFUL AIM, DESPITE RESOURCE DISPARITY 205 FROM CIVIL TO CRIMINAL PROCESS: HUMANITARIAN LAW’S CHANGING FOCUS 208 SYMMETRY OF RISK WITHIN HUMANITARIAN LAW 212 HUMANITARIAN LAW AS SIDE-CONSTRAINT 214 RESPONSE “IN KIND”? FINDING RECIPROCITY’S TERMS OF TRADE 216 NATIONAL WEALTH, WARTIME RESOURCE DISPARITY, AND HUMANITARIAN LAW 223 STRAINS OF COMMITMENT” TO HUMANITARIAN LAW 223 REPRISAL AS RECIPROCITY IN SAVAGERY? 226 PART THREE: RECIPROCITY IN THE SOCIAL SCIENCE OF WAR 229 8 Reciprocity as Civilization: The Terrorist as Savage 231 RECIPROCITY IN EARLY COLONIAL WARFARE 233 THEN AND NOW: DIFFERENCES 236 THEN AND NOW: SIMILARITIES 239 INVENTING A PLAYMATE: FROM OTHER INTO OPPONENT 243 CELEBRATING LEGAL HYBRIDITY AS CULTURAL MONGRELISM 247 FROM MARTIAL MORALITY TO METAPHYSICS 250 9 The Inflationary Rhetoric of Terrorist Threat: Humanitarian Law as Deflationary Check 254 THE DISCOURSE OF WAR: A CULTURAL SOCIOLOGY 256 LAW’S EFFECT ON PUBLIC RHETORIC 257 TERROR–TORTURE AS MIRROR IMAGE? 263 THE WILL TO TORTURE? RECIPROCITY AS MASS PSYCHOPATHOLOGY 269 10 Reciprocity as Tit-for-Tat: Rational Retaliation in Modern War 274 MILITARY HISTORY THROUGH THE LENS OF SOCIAL SCIENCE 274 WAR’S ENDGAME: THE DEATH OF COOPERATION AMONG BELLIGERENTS 280 RECENT LEGAL DEVELOPMENTS: THE MILITARY COMMISSIONS ACT 281 STATISTICAL EVIDENCE OF RETALIATION IN WAR 287 HISTORY’S QUESTIONABLE RELEVANCE: NEW ANTAGONISTS, NEW WARS 292 THE RATIONALITY OF NONRECIPROCAL CONCESSION 294 DO THE GENEVA CONVENTIONS REALLY MATTER? 296 RECIPROCITY IN PRIVATE INTERNATIONAL LAW 300 COGNITIVE BIAS AND MISPERCEPTION: OBSTACLES TO RESTRAINT THROUGH RECIPROCITY 303 WHY NOT SUBJECT HUMAN RIGHTS TO COST-BENEFIT ANALYSIS? 304 11 The “Gift” of Humanitarianism: Soft Power and Benevolent Signaling 306 CAN MORAL RESTRAINT ENHANCE SOFT POWER? 307 THE “AUDIENCE COSTS” OF HARD POWER 310 THE REALISM OF SOFT POWER 312 DOUBTS ABOUT SOFT POWER 313 “STRONG” RECIPROCITY AND HEGEMONIC STABILITY 318 DISTINGUISHING ONESELF FROM ONE’S FOE AS A SOURCE OF SOFT POWER 320 SIGNALING THE LEGITIMACY OF AMERICA’S WORLD LEADERSHIP 322 THE “GIFT” AS INTERGROUP RECIPROCITY 328 SOLIDARITY WITHOUT THE STATE: THE ROLE OF GIFTS 330 PART FOUR: THE END OF RECIPROCITY 337 12 Martial Honor in Modern Democracy: The JAGs as a Source of National Restraint 339 RESTRAINT THROUGH PROFESSIONAL ETHICS 339 AN ECONOMICS OF VIRTUE? 345 CROSS-BORDER NETWORKS OF MILITARY LAWYERS 347 LEGAL “INTEROPERABILITY” 351 MARTIAL HONOR AND PROFESSIONAL INDEPENDENCE 354 MARTIAL HONOR IN TERRORIST WAR: AN OXYMORON? 355 FROM PROFESSIONAL IDEALS TO NATIONAL IDEALS 357 REASONS FOR HUMANE TREATMENT: NATIONAL HONOR VS. HUMAN RIGHTS 360 THE ROLE OF LAW IN DEFINING “WHAT WE STAND FOR” 365 13 Roots of Antireciprocity: Transnational Identity and National Self-Respect 372 AN ECONOMICS OF SELF-RESPECT? 374 REIMAGINING RECIPROCITY 378 UNPALATABLE PERMUTATIONS, INCONSIDERATE CONSIDERATIONS: TWO CHEERS FOR RESTRAINT 382 RISK STATISTICS: FACTS AND VALUES 385 PLACING TOO MUCH BURDEN ON BURDENS OF PROOF 390 TOWARD A NEW RECIPROCITY: HUMANITARIAN LAW WITHIN AN EMERGENT GLOBAL CONTRACT 394 TORTURE AND SUSTAINED DETENTION VS. TARGETED KILLING: LAW LAGS BEHIND MORALITY 397 Conclusion 400 TORTURE AS RECIPROCITY 401 AGAINST TORTURE AND SUSTAINED DETENTION 405 Acknowledgments 409 Notes 415 Introduction 415 Chapter 1. reciprocity in the law of war: ambient sightings, ambivalent soundings 443 Chapter 2. reciprocity in humanitarian law: acceptance and repudiation 456 Chapter 3. humanitarian vs. human rights law: the coming clash 499 Chapter 4. is torture uniquely degrading? the unpersuasive answer of liberal jurisprudence 524 Chapter 5. fairness in terrorist war (1): rawlsian reciprocity 532 Chapter 6. fairness in terrorist war (2): kantian reciprocity 538 Chapter 7. humanitarian law as corrective justice: do targeted killing and torture “correct” for terror? 543 Chapter 8. reciprocity as civilization: the terrorist as savage 552 Chapter 9. the inflationary rhetoric of terrorist threat: humanitarian law as deflationary check 571 Chapter 10. reciprocity as tit-for-tat: rational retaliation in modern war 584 Chapter 11. the “gift” of humanitarianism: soft power and benevolent signaling 608 Chapter 12. martial honor in modern democracy: the jags as a source of national restraint 626 Chapter 13. roots of antireciprocity: transnational identity and national self-respect 641 Conclusion 658 Index 663 0521730147,9780521730143,0521513510,978-0521513517 Reciprocity In The Law Of War : Ambient Sightings, Ambivalent Soundings -- Reciprocity In Humanitarian Law : Acceptance And Repudiation -- Humanitarian Vs. Human Rights Law : The Coming Clash -- Is Torture Uniquely Degrading? : The Unpersuasive Answer Of Liberal Jurisprudence -- Fairness In Terrorist War (1) : Rawlsian Reciprocity -- Fairness In Terrorist War (2) : Kantian Reciprocity -- Humanitarian Law As Corrective Justice : Do Targeted Killing And Torture 'correct' For Terror? -- Reciprocity As Civilization : The Terrorist As Savage -- The Inflationary Rhetoric Of Terrorist Threat : Humanitarian Law As Deflationary Check -- Reciprocity As Tit-for-tat : Rational Retaliation In Modern War -- The 'gift' Of Humanitarianism : Soft Power And Benevolent Signaling -- Martial Honor In Modern Democracy : The Jags As A Source Of National Restraint -- Roots Of Anti-reciprocity : Transnational Identity And National Self-respect. Mark Osiel. Includes Bibliographical References (p. 405-652) And Index.