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Drawbacks from Abuse

Balanced against the benefits from prisoner abuse are several sets of costs, which highlight the dilemma faced by captors. First, reciprocity always looms large when thinking about the side effects, unintended or otherwise, from choices over wartime conduct. Abusing prisoners almost certainly increases the likelihood the adversary will retaliate against the captor state's own soldiers. While reprisals have fallen out of favor in more recent iterations of international humanitarian law, earlier foundational documents such as the Lieber Coder expressly condoned reciprocating in kind against prisoners for the enemy's misdeeds.43 Retaliation may be motivated out of a desire for revenge but also as a means to pressure the other side into ceasing its abusive behavior.44

In the broader historical context of war, however, retaliation can just as often lead to an escalating series of reprisals that in the end leaves prisoners from both sides worse off. The feelings of many Scottish troops during World War I perhaps best sum up the rationale for retribution, “Fritz [a derogatory term for German soldiers], they insisted, did not take any [prisoners], so why should we?"45 The tendency for conduct during the Great War to degenerate toward the lowest common denominator led one ICRC official to lament, “Reciprocity, that implacable and unbending deity, [is] the only one to which, during this war, universal and vile homage has been paid."46

States thus often remain mindful of the responses their actions in wartime are likely to engender, which may deter them from engaging in abuses. Prisoners often serve a function similar to the exchange of hostages during earlier periods of warfare, ensuring each side would abide by agreed-upon limits to wartime conduct.47 The degree to which a government is concerned with reciprocity will in large part be a function of how much they value the well-being of their own soldiers, which can vary a great deal. Although dangers from reciprocity may always be present between belligerents, the susceptibility of states to the costs of retaliation is not always equal. As will be explored in further detail below, factors that influence the relative sensitivity of belligerents to the suffering of casualties among their own troops will come to have deep implications for their concerns over reciprocal abuses and, in turn, their willingness to mistreat prisoners in the first place.

Second, abusing prisoners may also become militarily counterproductive. Although detractors of wartime violence often underestimate the benefits of abuse,48 they do have a point regarding some of the liabilities that mistreating prisoners can incite on the battlefield. Knowing the gruesome fate awaiting them should they fall into the hands of an abusive captor, enemy soldiers may prefer to continue fighting rather than surrender. As a field report from a German Panzer Division stationed on the eastern front in World War II observed, “Numerous interrogations of soldiers of the Red Army have repeatedly confirmed that they are more afraid of falling prisoner than possible death on the battlefield."49 Abusing prisoners, whatever the immediate advantages, may simply produce a sterner foe, making eventual victory all the more difficult.

In contrast, properly treating the enemy's combatants could actually be advantageous by making remaining soldiers more likely to surrender, thereby removing them from the frontlines.50 Contrasting patterns in the willingness of soldiers fighting during the First World War to lay down their arms were in large part a function of how they expected to be cared for upon capture.51 This may help account in part for the level of resources and attention some belligerents have devoted toward publicizing to enemy soldiers that they would be well treated should they choose to give themselves up.52 Taking steps toward increasing the surrender propensity of the enemy can make good strategic sense, since surrenders drain the adversary of both the physical manpower and morale necessary to effectively wage war.53

Good treatment also has potential benefits from the point of view of the captor state's own soldiers. During its brutal war from 1979 to 1989 in Afghanistan, the Soviet Union came to recognize the military advantages stemming from an ICRC plan to transfer prisoners from both sides to a safe haven in a neutral third-party country. As one historian remarked, “it is possible that the Soviet authorities accepted the ICRC proposal because it would enhance the morale of their troops in Afghanistan if they knew that capture by the mujaheddin need not mean a long period of deprivation or summary execution."54

Soviet motives in this instance also bring to the fore the other main benefit to one's own soldiers from properly caring for enemy combatants. Reciprocity runs both ways, and just as abuses can result in a downward spiral of atrocious acts, positive treatment can cultivate a virtuous cycle of cooperative behavior even among opponents. Good behavior, or at least ensuring adequate restraints on the extent of abuses and deviations from accepted rules, can create a self-reinforcing process leading to relatively stable levels of cooperation even between warring parties.55 The latter more benevolent dynamic is expressed in the belief among officials responsible for administering the U.S. prisoner of war system in Europe during World War II that fair and proper care of German prisoners was the best way to ensure the good treatment of U.S. prisoners in Nazi hands.56 In a similar manner to reciprocity, certain attributes of the belligerents themselves or the conflict may make captors value to a greater (or lesser) extent the possible side benefits to be gained through humanely treating prisoners.

These various strategic interactions involving the adversary's armed forces on the battlefield would seem to provide compelling reasons for states to avoid harming their captives. However, abusing enemy combatants may present some further benefits for the perpetrator, especially in terms of the expectations and resolve of the captor state's own soldiers. Knowing the adversary is likely to retaliate against prior violations, soldiers from an abusive captor state may be similarly emboldened when facing enemy troops, deciding it is more worthwhile to continue fighting rather than surrender.57 Part of Adolf Hitler's reasoning behind brutally mistreating Soviet prisoners was to make it almost certain Joseph Stalin would respond in kind. The Soviets' own vicious prisoner conduct in revenge consequently increased the likelihood that German troops would carry on the fight instead of allowing themselves to be captured.58 The resulting equilibrium involved a much more brutal battlefront, but one with the benefit that the Third Reich's own soldiers remained motivated to continue to bear arms rather than risk almost certain suffering and death as captives.59 The flip side of the earlier benevolent logic is that prisoner abuse can remain an indirect yet potent instrument (along with more traditional tools like repression or threats of court martial and similar punishments) to encourage one's own forces to continue fighting on the battlefield.60

A third downside that captors need to consider is the possible response by third parties and the international community to any violations committed. In wars that outwardly appear to involve fighting between only two states, such as the Russo- Japanese War or the later Falklands War between Argentina and Britain, anticipating the reactions of outside actors can inform the belligerents' decision making over all aspects of the conflict.61 External actors have frequently inserted themselves in a variety of ways, from outright military intervention to serving as mediators, which can fundamentally transform the nature of ongoing conflicts.62 Third parties do not necessarily need to actively interfere for their effects to be felt — expectations of intervention can often be sufficient to alter the behavior of warring parties on the ground. Expanding notions of humanitarianism over the course of the last century have meant that outside actors have become increasingly concerned with the fate of populations in other countries, especially in the midst of armed conflict.63

External actors have many tools at their disposal to pressure transgressors, which might lead belligerents to think twice before engaging in atrocities like prisoner abuse. At the most basic level, particularly egregious violators may soon themselves fighting more than one enemy as other countries choose to intervene militarily to stop further abuses. In response to ethnic cleansing and several large massacres in the Bosnian War, the North Atlantic Treaty Organization (NATO) began an air campaign in conjunction with UN forces to destroy Bosnian Serb military targets, contributing to the end of the conflict. Wartime conduct, and humanitarian concerns more generally, has become an increasingly cited justification for foreign military intervention.64

Third parties do not need to use overt military force to make their outrage felt. Economic sanctions can constrain the flow of goods into a country and impose significant economic hardship on violating governments (though unfortunately often also on their populations). Absent outright embargoes, violators may quickly find themselves excluded from economic opportunities available through preferential trade agreements or from development loans from international organizations like the World Bank.65 Violators can also face diplomatic rebukes, as well as public condemnations from international institutions and nonstate actors for their conduct, which may hurt their image and interests on the world stage.66

The personal stakes for officials ordering or committing abuses have grown with the spread of war crimes tribunals beginning with the Nuremberg and Tokyo Trials after the conclusion of the Second World War. At Nuremberg Wilhelm Keitel, former head of Germany's Oberkommando der Wehrmacht (Armed Forces High Command), was found guilty on several counts including war crimes and crimes against humanity for the poor treatment and killing of prisoners of war and was subsequently sentenced to execution by hanging.67 The rise of later ad hoc tribunals for conflicts in the former Yugoslavia and Rwanda, subsequently culminating in the International Criminal Court (ICC), has been frequently viewed as offering the potential for an end to impunity for violators.68

Coercion in its various forms is not the only way external actors can influence the conduct of armed forces during war. Governments, international organizations, and nongovernmental organizations (NGOs) also often use less confrontational tactics in an attempt to persuade violators to change their ways. One of the most notable success stories in fact involves the very origins of modern humanitarian principles during wartime. From its founding the ICRC played a pivotal role in influencing the world's powers to value the importance of humanitarian action, leading to the support of the international community for the rules of warfare regulated by the Geneva Conventions.69 In seeking international legitimacy, conformity with existing rules, and esteem in the eyes of others, states can eventually become socialized into appropriate norms of conduct.70 Taken together, third parties can place pressure upon belligerents — whether through more coercive or more persuasive policies — and raise the costs for engaging in abuses during wartime.

Although there is little doubt that international responses can have repercussions for armed actors, the real question is whether the threats or actions of third parties are sufficient to prevent or halt prisoner abuse. There are several reasons for suspecting that international reactions may not figure prominently in the cost-benefit calculations of captors when deciding how to treat their prisoners.

First, humanitarian norms have certainly spread widely, but they favor certain victimized groups over others, with prisoners of war remaining a lower priority compared to civilians and other specific noncombatant categories. This trend in discounting the needs of prisoners relative to other victimized groups is especially evident in the emerging norm of the responsibility to protect (R2P or RtoP). Grounded in various country-level and UN initiatives, R2P contains three main pillars: (1) countries are responsible for protecting their own populations from grave abuses; (2) the international community should help states meet this responsibility; and (3) if a state fails to protect its population, then the international community should intervene up to and including military force. In one of the first multilateral affirmations of R2P, the Outcome Document of the 2005 World Summit of the UN General Assembly declared in broad terms the “responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications" (emphasis added).71

The general term “populations" has come to largely denote civilians, even though captured combatants can be the target of genocide, ethnic cleansing, and similar crimes. Many prominent works outlining the origins and development of R2P focus primarily on the protection of civilians and pay little or no attention to the conditions of prisoners.72 In later actions affirming R2P, such as the 2006 UN Security Resolution 1674 or in the operational mandates for recent peacekeeping operations, objectives continue to be largely framed in terms of protecting civilians.73 The tenor of the contemporary discourse thus suggests that even in more active periods of humanitarian intervention, prisoners remain a largely hidden and forgotten victim relative to civilians, which leaves captors with substantially greater leeway in their treatment of captives.74

Second, even in the case of civilians, where outrage and the potential for action would seem ripest, the international community has been very inconsistent and unequal in its responses. Condemning atrocities may be frequent, but translating this shock into concerted policies to prevent mass killings has been much less forthcoming.75 The intervention of Western military forces in Libya during the Arab Spring compared to the lack of a robust response at the outset to killing in the Syrian Civil War reinforces how outside actors take into account multiple factors other than the humanitarian merits of an episode of violence. Normative obligations are rarely enough on their own but often need to be buttressed by the material interests of outside powers to motivate intervention.76 From Tsarist Russia's numerous incursions against the Ottoman Empire to protect fellow Christians, to Vietnam's attack against the murderous Pol Pot regime in Cambodia, countries have frequently intervened in humanitarian disasters for unavowedly nonhumanitarian purposes.77 Taking advantage of apathy or contending interests within the international community, regimes as varied as fascist and communist dictatorships and Western democracies have been able to rationalize noncompliant behavior in ways adequate enough to avoid any meaningful censure.78 Alongside the poor prospects of outside intervention, the seemingly clear-cut prohibitions on the mistreatment of civilians and prisoners provide a great deal of room for violators to justify or excuse their actions on the world stage. This leeway may be closing somewhat in recent years as many international actors, in particular various UN bodies, place a greater emphasis on humanitarian concerns.79 Yet throughout much of the twentieth century and earlier, belligerents could count on a relatively free rein in their wartime conduct.

Supposing outside actors actually choose to intervene, a third constraint is that the available policy tools to prevent or halt atrocities have a fairly rough track record. Military interventions, even those with explicit humanitarian goals, under many circumstances can lead to more rather than less killing.80 Given the fate awaiting civilians, it is unlikely prisoners under enemy control would fare much better. Likewise, economic sanctions in response to human rights abuses, or naming-and-shaming campaigns condemning violators, often have little effect and can even be counterproductive.81 Even seemingly innocuous steps like diplomatic sanctions to isolate a violator internationally can often have unintended negative consequences.82 Taken together, the international community may have the potential to hold captors accountable for their actions toward prisoners. Yet both historically and in more recent times, international costs for prisoner abuse have been less consequential than those related more directly to the conflict, such as concerns over reciprocity and consequences for the course of fighting on the battlefield.

In sum, the countervailing costs and benefits thus create an inescapable dilemma for captors when contemplating how to treat prisoners from the opposing side. Each consideration is unlikely to be equally salient for all belligerents, or even for the same state across different situations. Different costs and benefits may also change and interact in complex ways for different captors in shaping their prisoner policies. Past wars demonstrate that no clear universal course of action exists for the treatment of captured combatants. In some cases states seem to emphasize the benefits to be gained from abuse, such as North Korea or Communist China during the Korean War, while in other conflicts, like the Spanish-American War, both sides tend to focus on the downsides of prisoner abuse and refrain from committing violations. The appraisal above suggests a fundamental tension between the costs and benefits of abuse, since acting either virtuously or viciously comes with its own risks and rewards.

 
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