In the Minds of Men: A Theory of Compliance with the Laws of War
126 Pages Posted: 10 Jun 2004
Date Written: June 6, 2004
Whether, and, if so, why states elect to comply with international law are now the most central questions within the international legal academy. A skein of theories has been woven over the last decade to explain and predict state compliance, and a number of factors, including, inter alia, a desire to generate reciprocity, an interest in reducing transaction costs, normative commitments, domestic considerations, the degree of domestic incorporation of international legal regimes, reputational concerns, and fear of punishment, are purported to be causally linked. However, as the study of international legal compliance ["ILC"] has matured, intramural divisions have been compounded by suspicions that many states are prone to accept only those legal obligations that do not significantly impose real constraints. A high level of compliance with a given regime may simply reflect the failure to require states to undertake anything more than "modest departures from what they would have done in the absence of an agreement." Many treaties may in fact be mere codifications of the lowest common denominator achievable across an array of states none of whom have internalized norms obligating conduct contrary to their independent preferences, and thus a high rate of observed compliance is not necessarily an objective indicator of a normative commitment to cooperate. By the same token, certain agreements that impose significant constraints may meet with relatively low levels of compliance without sabotaging the norms states-parties seek to advance. In short, the development of compliance theories requires that causal relationships between the normative fabric from which international legal obligations are woven and state behavior be clearly traced.
However, complicating resolution of the debate between champions of the causal significance of international law and those who view law as epiphenomenal to state practice is the relative paucity of empirical studies testing general propositions regarding relationships between rules and behaviors. Although all theories in the social sciences are indirect, presumptive, and obliquely and incompletely corroborated at best, the field that has organized around the concept of international legal compliance is undernourished with insights from other disciplines: the few studies that describe patterns of compliance without tracing these relationships and establishing their effectiveness are insufficiently rigorous and too under-specified to offer many useful insights. Moreover, insufficient rigor is not all that bedevils the field of ILC: the tacit assumption central to the discipline of international law that regards international relations as uniformly susceptible to legal regulation may well be false. A hierarchy of issue-areas orders the international legal system, and patterns of cooperation have been far easier to generate and sustain in respect to "low politics," generally understood as economic, cultural, and social issues, than in questions of "high politics," defined narrowly as matters of war and peace. Because empirical evidence suggests that the obligations most breached are those trenching in questions of high politics, the ultimate test of whether international law matters may well be whether it can be crafted to regulate the muscular aspects of international life. If international relations are inevitably little more than a Hobbesian state of nature, and if war is inescapably the negation of the rule of law, then international law is and will always be epiphenomenal. If, on the other hand, states can be induced to comply with meaningful normative limitations on their conduct even in issue-areas that implicate their sovereignty, the long-deferred dream of a functioning civil society is no longer fanciful. Thus, if the laws of war, or international humanitarian law ["IHL"], are the soft underbelly of global legalization, developing a theory that explains and predicts IHL compliance and suggests ways in which it can be re-engineered to enhance its effectiveness is of great moment to the broader venture of making international law matter.
Regrettably, however, the field of ILC is still a primitive science, and our ability to explain and predict the effectiveness of IHL is even more protean. While its relative youth accounts for some of this theoretical underdevelopment, and the desire to retain parsimony for still more, the inability to explain and predict IHL compliance is primarily the result of a failure to properly specify the variables most closely associated with compliance decisions. Simply put, the international legal academy has failed to render a coherent body of testable hypotheses that permit empirical investigation across a range of issue-areas, and thus IHL compliance remains an idiopathic phenomenon. To be sure, international law and international relations theorists have catalogued and described patterns of compliance. However, no ILC scholar has offered anything like the list of nomothetic propositions that one expects from a theory. The discipline must recognize that states are an abstraction utterly lacking in the capacity to exercise a choice between alternatives and that those who would answer the question, "Why do states choose to comply with or violate IHL?," must first ask and answer the prior, yet much more impenetrable, question: "Why do the individuals who exercise decisional authority commit their states to comply with or violate IHL?" Simply put, states do not make decisions; people do. Any theory of IHL compliance that aspires to sufficient determinacy to guide practitioners and scholars alike must account for the individual level of analysis and in particular the microfoundations of personality that frame decisions and yield variation across the range of decisionmakers, in its elaboration, testing, and refinement.
Accordingly, Part I of this Article briefly surveys and critiques existing pretheories of ILC generally and particularly with respect to IHL. Part II presents an alternative theory that draws from the insights of personality theory to trace the causal processes whereby the personalities of individual decisionmakers associate with decisions to comply with or violate obligations arising under the IHL regime governing the resort to anticipatory self-defense ["ASD"]. Part III surveys historical data to heuristically test the proffered theory, and Part IV, followed by a Conclusion, anticipates criticisms and proposes directions for further research.
Keywords: international law, compliance, laws of war, international humanitarian law, empirical research, political psychology, personality theory, anticipatory self-defense
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