5

Geneva conventions create a different (greater) set of obligations, by signatory states, towards the other signatory states than they do towards the non-signatory ones.

This creates an incentive for every state to be a signatory state even if they don't intend to comply, or even consult, the Geneva conventions while prosecuting wars.

Game theoretically, unless there is a process to certify that a state is not a good-faith signatory, then this zero-cost non-compliance renders the conventions moot.

As an analogy, consider the following thought experiment.

If a law provides that those who promise to be "honorable," must vouch to try to not commit crimes, and the same law stipulates that the "honorable" persons cannot be punished as harshly as the "dishonorable" persons, then it incentivizes every criminal to promise to be "honorable" (in case they get caught after they commit crimes).

But if there is a decertification process to establish that a self-declared-honorable person is not in fact honorable, then this ruse would not be as useful to criminals.

The same is true of countries which "promise" to abide by the GC by becoming signatories, but do not follow them at all.

It is, of course, true that there maybe many violations of the GC, even by a good-faith signatory, if the procedures for following the conventions are in place, but some individuals ignore them. As long as those ignoring the conventions are court-martialed (even if they are not ultimately convicted), then it creates an incentive to follow the GC by the rest of the armed forces to whom they maybe applicable.

Question: are there any procedures in place to decertify signatories in order to prevent the conventions from becoming moot?

ohwilleke
  • 79,130
  • 11
  • 224
  • 303
wrod
  • 9,321
  • 25
  • 64
  • 6
    I think the question essentially is "What happens if a signatory state does not comply with Geneva Conventions?" – whoisit Aug 07 '23 at 09:53
  • I think this is mostly moot, since there isn't really any process for prosecuting violations of GC that would make the distinction. If you routinely violate GC, everyone will recognize that you didn't sign in good faith and will treat you as a non-signatory. – Barmar Aug 07 '23 at 19:53
  • @Barmar lack of prosecution is not what matters here. The distinction comes during armed conflicts. Non-signatory non-compliant belligerents have fewer protections (think international pirates or something). Prosecution is what happens after the fact. Compliance is what happens during the fact, which is earlier than after the fact, so it is a higher imperative. – wrod Aug 08 '23 at 01:10
  • You might be better off by asking if the distinction between signatories and non-signatories is at all significant in the modern world. – Stuart F Aug 08 '23 at 15:37
  • @StuartF I believe that has already been treated in a different question on this site. – wrod Aug 09 '23 at 01:29

2 Answers2

6

Game theoretically, unless there is a process to certify that a state is not a good-faith signatory, then this zero-cost non-compliance renders the conventions moot.

This is an upside down way to think about it. The premise that violating the Geneva Conventions is "zero-cost non-compliance" is false. A declaration that a country is not a good-faith signatory is not a sanction recognized under international law nor is it one that makes any sense. But that doesn't mean that a country doesn't face any consequences for violating international law.

If a country is a signatory of the Geneva Conventions, then a violation of the Geneva Conventions by the signatory, or by people who are the responsibility of the signatory, is wrongful. And, such a wrongful act is, for diplomatic purposes, a violation of international law. A violation of international law may provide a legal or political basis for another country, or authorities in the violating country (perhaps following a regime change), to punish citizens of the country who carry out the violations, or to punish the country itself.

Punishments might include international economic sanctions, arms embargoes, discontinuance of diplomatic relations, travel bans, war crimes trials of participants after the fact (some countries claim universal jurisdiction over all war criminals even if their country had not involvement in the actions), providing military or economic aid to the party on the other side of the conflict with a violator, or even proportionate military intervention to prevent violations of the Geneva Conventions from continuing.

Sanctions for violating the Geneva Convention are meted out unilaterally by other countries, can be imposed by the legal system of the violating country, or can be imposed by an ad hoc group of other countries working together. International law is rarely enforced by some neutral, extra-national judicial body. Instead, international law is a justification for other countries to take action that might otherwise defy international norms in their treatment of another country or people affiliated with it. Put another way, international law primarily provides political justification for other countries to take action.

This justification is undermined if a country is a not a signatory of the Geneva Conventions (or is declared not to be one because it signed them in "bad-faith"). In that case, violations of the Geneva Conventions are not wrongful simply because they are violations of the Geneva Conventions. Instead, they would be subject only to any "customary international law" that is deemed to apply to all countries without regard to the treaties that it has signed, which would provide a less definitive basis for punishing or condemning violations of conduct that would violate the Geneva Conventions. Customary international law overlaps with the Geneva Conventions, but the Geneva Conventions has many provisions that clarify where lines are drawn between acceptable and unacceptable conduct that are more specific than customary international law would be.

The Geneva Conventions would never be made more effective by invalidating the assent of a country to them on the basis that they are made in bad faith. This would undermine the authority of the international community to condemn or punish the wrongful actor.

Furthermore, more generally, international law, unlike the private law of contracts between natural persons or legally recognized entities, does not recognize concepts such as the invalidation of a treaty obligation by virtue of duress or bad-faith (although a good faith mistake of fact that makes the matter agreed to non-sensical or does not reflect the intent of the parties is recognized).

To reverse the question, what benefit does a nation receive from being a "good faith signatory"? The question assumes that there is such a benefit by assuming that being declared a "bad faith signatory" would somehow harm a country. The notion that being a signatory is valuable primarily because it induces other countries to act in reliance on the signatory state's compliance is not a good model of how the Geneva Convention is supposed to work.

ohwilleke
  • 79,130
  • 11
  • 224
  • 303
  • There is a specific benefit to being a signatory. There are rules that other signatories take upon themselves to follow towards signatories. And rules which they agree to follow towards complying non-signatories. These rules do not have to be followed towards non-signatory non-compliant belligerents (such as international pirates). – wrod Aug 08 '23 at 01:13
  • (cont.) This is a frame challenge, which is fine. But it's wrong for the following reason. The contention here is that prosecution is the only enforcement mechanism. But prosecution happens after the fact. While loss of protections happens during the fact of hostilities. So having protections (vs avoiding prosecution) is a higher imperative and, therefore, a higher priority. A non-complying signatory gains a military advantage by making a wider range of military actions available to itself than a complying signatory. Which is generally an advantage during any confrontation. – wrod Aug 08 '23 at 01:19
  • (cont.) see this answer for an example of how a military advantage can be gained by a non-compliant signatory over a compliant signatory. – wrod Aug 08 '23 at 01:24
  • 1
    @wrod Saying that a country has a "wider range of military actions available" by not complying is like saying that a country has a wider range of military actions available by declaring war on countries aiding their enemy. It's true, but it's just going to provoke other countries to side against them and make the situation worse. – Bobson Aug 16 '23 at 18:06
  • @Bobson it's not like that. Declaring war is one such other option. "Wider range of options" is a larger set of opportunities than 1 specific opportunity. Yes, every opportunity has a cost. And this question is about whether 1 type of cost has been imposed. This answer attempts to argue that it's unnecessary because other types of costs are imposed. But (1) that may or may not happen (2) a wider range of options is again more choices. So it creates additional potential opportunities to violate the convention. – wrod Aug 16 '23 at 18:40
  • @Bobson in addition, if aggression itself is illegal, then the "it will make others mad at us" has already been factored into the cost analysis. So additional violations don't add much to that particular component of the cost. The aggressor already has "priced in" the amortized cost of reputation loss (which will have to be paid for over time) and is willing to pay that price for immediate perceived gains. If they have a degree of fear of being removed from the convention signatories, then it would introduce an immediate cost (as opposed to amortized cost). – wrod Aug 16 '23 at 18:44
3

Game theoretically, unless there is a process to certify that a state is not a good-faith signatory, then this zero-cost non-compliance renders the conventions moot.

If you want to analyze this in the framework of game theory, it is worth noting that international relations are an ongoing process. Any decisions made now affect not just the current round of the game, but all future rounds. Therefore, when considering the costs of a strategy, such as non-compliance with the Geneva Conventions, it is insufficient to only consider the current round, but one must also consider how this will affect future rounds of the game. And therein lies the first major deterrent:

If a nation signs and then breaks a treaty, it erodes trust not just in this signature, but also in all other signatures this country has given - because if they lied here, where else might they have lied? Diplomacy being the art of influencing other nations through words, how's that going to work if the words of your diplomats are no longer believed?

The drafters of the Geneva Conventions would prefer the signature to be as binding as possible. Creating a process to repeal the Geneva Conventions runs counter to that. If people fraudulently sign, that's better than not signing, because it gives diplomatic leverage against them. And the more people sign, the easier it is to consider the Geneva Conventions part of customary international law, which derives its force not from signatures under treaties, but from being the generally accepted way of doing things, which might henceforth be expected even of those who have not signed the treaty.

That is, a process for expelling violators from the Geneva Conventions is not necessary, and would actually weaken rather than strengthen the Geneva Conventions.

meriton
  • 4,155
  • 12
  • 21
  • re: "Therefore, when considering the costs of a strategy, such as non-compliance with the Geneva Conventions, it is insufficient to only consider the current round" Yep. Which is why I talk about the convention becoming moot if nothing is done. bad-faith signatory cannot make it moot by themselves. But the optimal long-term solution to a series of prisoner's dilemmas is to always repeat your opponents last move. So, the last sentence of this answer is incorrect. I don't mind a frame challenge as such. But this is not a valid one. – wrod Aug 09 '23 at 01:33
  • I don't think modeling international relations as a prisoners dilemma is at all aedequate, because it assumes that deterrence can only be effected by responding in kind. But in international relations, there are other types of sanctions that could be employed. And since it is rather hard to claim the moral high ground by being indistinguishable from the accused, these other kinds of sancations tend to be preferred. – meriton Aug 09 '23 at 02:25
  • this is a game-theoretic analysis question. Prisoner's dilemma is seminal to Game Theory. And Nash Equilibrium (which I mentioned without naming it in the last comment) is an essential result of it. This question revolves around the optimal weights in that setting. It does not suffer from the limitation which you mention. The difference in weights can be used to account for these constraints. – wrod Aug 15 '23 at 00:01
  • One of the fundamental reasons the Geneva Conventions have worked as well as they have is that they're designed to balance out the costs of compliance among signatories, so that mutal compliance won't affect who wins a war, but will leave all participants better off than they would be without the agreements. Violations of the letter appear to have been tolerated in cases where obediance would have put a country at a particular disavantage, such as when the US captured the German U-505. Notifying Germany that the crew were captured as live prisoners would have caused the Germans... – supercat Dec 30 '23 at 00:06
  • ...to recognize that the allies would have also likely captured the boat's ciphering equipment and code books. While keeping the prisoners incommunicado might have been contrary to the Geneva Conventions, I suspect that given a choice between having the Allies attempt to capture the boat and its crew, and then keep the crew incommunicado, versus having the allies simply sink the U-505 on sight, most if not all of the crew were glad the Allies chose the option which technically violates the GC. – supercat Dec 30 '23 at 00:10