The Ethics of Negotiation in Armed Conflict

When states conduct negotiations in the shadow of armed conflict, the exercise of diplomacy raises certain unique challenges. Conducting relations with “rogue states,” namely sovereign states who disregard human rights or other international norms, for example, raises the concern that we are helping to legitimize governments and practices we otherwise strongly condemn. Nonetheless, as some have argued, there may be an obligation to negotiate with such a state when it comes to grave security issues like weapons of mass destruction. How do the alternatives to negotiation impact the moral considerations involved in dealing with such states?

Like “rogue states,” non-state armed groups come in different forms, from political insurgencies to criminal organizations to millenarian groups. Often these actors are designated collectively as “terrorists,” a term for which there is no academic consensus—and which, it has been argued, hinders prospects for negotiation and fosters entrenched violence. Does negotiating with non-state actors, through official state channels or otherwise, undermine the international order by conferring a legitimacy and authority traditionally granted only to states? Or does legitimacy in some cases attain to non-Westphalian groups? How should states balance the risks of attributing legitimacy to unsavory actors against the possibility of escalated violence stemming from a refusal to negotiate?

When confronted with non-state hostage takers, many governments insist that they will not negotiate, but in practice exceptions abound. Recently, the Obama administration has indicated that it will no longer bar the families of hostages from paying ransom to kidnappers, despite the fact that the U.S. government will not pay ransom or engage in negotiations. What are the implications of this for deterring kidnapping? How will this shift in policy impact official governmental relations with hostage-takers? Does a willingness to deal with hostage-takers encourage their behavior, thereby endangering more citizens? On the other side, however, is it ethical to refuse to negotiate with kidnappers in the name of deterrence? Or do private citizens, family members, or associated organizations have a right to negotiate for the kidnapped? Would the costs to society of materially supporting hostage-takers outweigh these rights?

Finally, democracies face expectations of transparency and open public debate. In a democracy, what role should the public play in deciding whether to negotiate? Is secrecy necessary for diplomacy to be effective in certain cases—as with Kissinger’s trips to China? How might the role of secrecy change with respect to not only other states but also non-state armed groups?

 

This program has been approved for 7.5 ethics CLE credits for Pennsylvania lawyers. CLE credit may be available in other jurisdictions as well. Attendees seeking CLE credit should bring separate payment in the amount of $150.00 ($75.00 public interest/non-profit attorneys) cash or check made payable to The Trustees of the University of Pennsylvania.