Introduction

French law addresses precontractual negotiations as a relationship that may be regulated by law. The idea of legal duties imposed on the parties once they enter into negotiation is rooted in the views of Saleilles, who came up with a concept of responsabilité précontractuelle (precontractual liability) in 1907. In a manner innovative for his time, Saleilles suggested that the mere process of negotiations inevitably binds negotiating parties together by practical, social, and moral links. He advocated that breaking these ties should be qualified as a tort and lead to precontractual liability.

Subsequently, legal regulation of the precontractual period has attracted considerable attention in the French literature. The interest has been further revived with the drafting of the PECL and DCFR and the projects of reforming the French law of obligations.

Since the nineteenth century, precontractual liability has become a usual concept in French law. However, it was scarcely incorporated in legal texts, the main source of French law. This concept was not incorporated into the Code civil. The regulation of precontractual relations was based on general principles of the law of obligations and the ‘praetorian’ judge-made rules. Since the adoption of the Napoleonic Code two centuries ago, French courts have come some distance in interpreting its provisions in the context of practical changes. Over the years of application and interpretation of the Code civil, judges have developed standards of conduct to be respected by the parties during negotiations. These standards have been referred to as ‘particularly rigorous ethics of negotiations’. The sanction for their breach is a liability in tort.

French case law or, to use the exact term, jurisprudence has not confined the legal regulation of negotiations to precontractual liability in tort. In French law, parties may organize negotiations contractually. During the last few decades, French judges and scholars have become receptive to the practice of creating various precontractual documents. Drawing on the general provisions of contract law, they have recognized a plethora of avant-contrats, including the project of contract, agreement in principle, pre-emption agreement, promise to contract and others. The validity of these documents is underpinned by the distinction made in French scholarship and case law between the future contract and the process of negotiations towards this contract. It is the process of negotiations that is privatized by contractual obligations.

INTRODUCTION

In previous chapters the characteristics of dictators and dictatorial regimes have been discussed as well as the responsibility of the international community to stop the worst atrocities that are perpetrated by them. When a dictator manifestly fails to protect his population from atrocity crimes or is even complicit in their perpetration, the international community may intervene through the UN Security Council to implement the third pillar of the responsibility to protect. Foreign policy mechanisms that may be used to persuade a dictatorial leader to stop the perpetration of crimes are diverse, and range from diplomacy to sanctions and sometimes even military intervention. These mechanisms are not only intended to emphasize the importance of respect for human rights but also aimed at changing the policies of perpetrating countries (Luard, 1980, p. 579). As Tetlock specifies ‘foreign policy is fundamentally social influence: The ultimate objective is to persuade other nations to act in desired ways’ (Tetlock, 1983, p. 69). Although often the international community fails to stop the crimes (LeBor, 2006), the domestic policies of dictators might be impacted by the actions of the international community or other states depending on whether the leader will be responsive to the foreign policy mechanisms and modify his tactics that bring about the suffering. In some instances, this means coercing the target state to change its behaviour by threatening the adversary with enough pain that this would outweigh the benefits of resisting the demands for change (Byman & Waxman, 1999, p. 107). That the decision-making process would be done in such a rational manner, however, has been challenged by scholars who pointed to the inability of human beings to live up to the assumptions underlying perfect rationality and has raised issues relating to the level of analysis that is being investigated (a.o. Stein, 2012). The question becomes whether rationality is attributed to the state or to the individual and what the implications of choosing a particular level of analysis are for examining a state's foreign policy (Carlsnaes, 2012). What determines the reaction of a state to foreign policy measures directed at it, and what is the role of the individual therein?

INTRODUCTION

In line with the argument that the state should not be viewed as a black box, Max Weber likewise argued that collective entities need to be opened up to analyse the individuals who constitute them. On the one hand, he noted in his seminal work Economy and Society that sometimes it may be necessary for practical reasons to treat social collectivities as if they were individuals (Weber, 1964, p. 101). On the other hand, he argued that ‘for the subjective interpretation of action in sociological work [social collectivities such as states, associations and business corporations] must be treated as solely the resultants and modes of particular acts of individual persons’, adding that ‘for sociological purposes there is no such thing as a collective personality which “acts”’ (Weber, 1964, pp. 101- 102). Although most sociologists tend to view the task of the sociologist as lying with the analysis of what Levine calls ‘supraindividual’ formations, according to Weber sociology should seek to understand and interpret individual social action (emphasis in original 2005, p. 101). His types of social action have usually been discussed in relation to his work on rationality which has been highly influential (Levine, 2005, p. 102). Some scholars go as far as to designate Weber as an early forbearer of the rational choice approach (Norkus, 2000, p. 259), yet despite the influence he may have had on the development of rational choice, there is much to be gained by incorporating more of Weber's ideas into the contemporary debate on individual rationality.

Rational choice is sometimes said to be a multilevel enterprise with an important focus on macro level outcomes, leaving the analysis of individuals to decision-making theory which highlights the cognitive and psychological factors which influence human action (Hechter & Kanazawa, 1997, p. 192; Kiser & Hechter, 1998, pp. 802-803; Mintz & DeRouen, 2010, pp. 3-6). However, this dichotomy between rational choice and decision-making analysis as mutually exclusive paradigms is unnecessary. It is important to acknowledge that the perfectly rational decision maker is an ideal type.

INTRODUCTION

Dictatorships and dictators are shrouded in secrecy, making them difficult to study. Government sources are usually unreliable and independent media is usually hampered or censured. Studying dictatorial regimes, and how they function, is therefore an extremely difficult task. Unsurprisingly political science has traditionally paid much more attention to democratic countries than their dictatorial counterparts (Ezrow & Frantz, 2011, p. xiv). Interest in the topic, however, has increased and, an impressive body of work has emerged in which dictatorship and democracy are usually treated as each other's counterpart. In the literature, dictatorships are commonly defined negatively as non-democratic regimes (Lidén, 2014, pp. 50-51), but how clearly can we delineate one from the other, and to what extent do dictatorships actually function differently than democracies? Scholars increasingly see the distinction between dictatorships and democracies as a rather fluid one. Democracy and dictatorial rule are now regarded in this approach as either ends of a spectrum, with some regimes being more or less democratic. The distinction is no longer seen as being either black or white, but many regimes are now conceptualised as semi-authoritarian, the so-called ‘hybrid regime’, to denote the different shades of grey (Bogaards, 2009). While this adds to the sophistication of contemporary research, it is important to gain more understanding of what characterizes a dictatorial regime, and how it works. What does the concept ‘dictatorship’ entail and how does it function? To what extent can the dictator actually determine the policies of a country, how influential is he and how does he obtain and maintain such power? These are some of the questions the present chapter seeks to answer in order to explain the dictator's role in determining the policies of his regime, both within his country, as well as the foreign policy of his country.

A factor that complicates answering these questions is the extent to which dictatorships may differ from one another. They may differ, for instance, in the extent to which power is concentrated in the hands of one individual or a small clique, the role the military plays, and the extent to which the regime tries to infiltrate every aspect of people's lives. The leaders of these regimes likewise differ enormously from one another.

INTRODUCTION

After WWII, states were determined to prevent similar horrors in the future. In order to realize this, the prevention of interstate conflict, as well as the promotion of human rights and fundamental freedoms, became important goals of the United Nations. Tension, however, emerged between the promotion of human rights through the adoption of the Universal Declaration of Human Rights, which later led to the adoption of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Prevention and Punishment of the Crime of Genocide, for instance, and a strict respect for state sovereignty that meant to ensure international peace and security. State sovereignty, as the foundation for the modern system of states, came to mean they were ‘legally equal to each other, not subject to the imposition of supranational authority, and, above all, not intervening in each other's internal affairs’ (Evans, 2008, p. 16). The manner in which countries have used sovereignty as an excuse not to intervene when horrendous crimes have been perpetrated or to hide behind it when they have perpetrated the crimes, has increasingly come to be seen as problematic (Cronin, 2007, p. 298).

Although Chapter VII of the UN Charter, authorizes the UN Security Council to intervene in order to ‘maintain or restore international peace and security’, for a long time this was defined restrictively and the Security Council was hesitant to interfere with state sovereignty. This frequently severely limited the possibilities to protect populations from human rights violations (Askin, 2005, p. 1723; Grünfeld, 1998). Furthermore, during the Cold War, the Security Council was largely deadlocked. The United States and the Soviet Union vetoed an astounding 279 resolutions, and dictators were largely able to act as they pleased within the confines of their own borders for years, often even while being backed by one of the two superpowers (Ayittey, 2011, pp. 107- 108; Boutros-Ghali, 1992). While the Security Council became much more proactive after the end of the Cold War, and increasingly came to see human rights violations as a genuine concern, there was a continuous failure to prevent genocides from happening (Grünfeld, 1998; Österdahl, 2005). The genocides that occurred in Rwanda and Srebrenica in particular, where UN peacekeepers were present but failed to intervene in an effective manner, caused international outcry (LeBor, 2006).

INTRODUCTION

In 1979, Pol Pot was confronted with the threat of military intervention when its border conflict with Vietnam spiralled out of control. Twenty years later Milosevic's survival in power was also at stake when NATO was prepared to bomb Milosevic back to the negotiating table. Each of the leaders had to consider whether they were willing to halt their violent policies in the contested areas and whether they were willing to negotiate a more peaceful resolution to the conflicts. Both of the interventions are likely to have saved the lives of numerous individuals but were highly controversial. To a certain extent, both episodes reflected the time in which they were fought; while Vietnam became an international outcast, NATO's intervention was seen as ‘illegal but legitimate’ by the Independent International Commission on Kosovo. The Commission argued: ‘the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule’ (The Independent International Commission on Kosovo, 2000, p. 4). In the 1970s, the perpetration of atrocities was never a good reason to infringe upon the sovereign rights of any country, but by the end of the 1990s the international community was torn between the injustice of intervening and the injustice of standing by while innocent civilians are slaughtered. The intervention in Kosovo therefore raised questions about the rightfulness of military intervention for humanitarian purposes and eventually led to the report of the International Commission on Intervention and State Sovereignty in which the responsibility to protect was conceptualised.

Many problems plague military intervention by foreign powers when a regime perpetrates unimaginable atrocities. The dilemma of whether there is a will to intervene, as well as the question whether military intervention should even be considered an option, is discussed extensively elsewhere (e.g. Chomsky, 2012; Power, 2013; Wheeler, 2000). The intention of this chapter is merely to provide an assessment of the possible ways in which different leaders may respond to the threat of, and the actual use of, military force. Scholars have debated the extent to which the decisions of both Milosevic and Pol Pot can be considered rational, considering the military might of the intervening powers and the balance of powers in the international arena.

INTRODUCTION

That ideology played an important role in shaping the events in Cambodia seems beyond doubt. Many people suffered a horrendous death because of the imposition of policies that were meant to bring forth a communist utopian society. The real question is whether Pol Pot used this ideology instrumentally because it suited his personal goals and ambitions, or whether there was a genuine belief in the righteousness of the revolution that propelled these developments. Scholars differ somewhat of opinion on this manner. Some scholars are convinced a lust for power lay at the root of these atrocities while others belief it was the uncompromising commitment to the ideology that is to blame. Chindawongse, for instance, believes that power was Pol Pot's predominant overarching goal and that the desire to change society was only necessary and desirable to obtain and maintain control over the country (Chindawongse, 1991, p. 127). According to Chindawongse,

Jackson, on the other hand found that the most important motive for the elite was the desire to create an egalitarian society in combination with utter disgust for the old regime (K. D. Jackson, 1989, pp. 54-56). Chandler does not see how one option should negate the others and is convinced that it was a ‘courageous, doomed attempt by a group of utopian thinkers’, while at the same time it was also the result of an extreme ‘thirst for power’ (Chandler, 1999, p. 3).

Other scholars are not convinced a rational explanation for the violence can be found because, they argue, Pol Pot was crazy. Polin described Pol Pot as ‘a madman who takes himself for an avenging deity’ (Polin, 1980, p. 45). Valentino, on the other hand, sees Pol Pot's paranoid psychological mindset as being intimately linked to his ideological outlook. According to Valentino, the paranoia communist leaders often suffer from is attached to the extreme Marxist outlook that they have and should not be seen as solely something which stems from ‘their personal psychological aberrations’ (Valentino, 2004, p. 100).

INTRODUCTION

In the 1990s, the horrible violence that took hold over the Balkans shocked the world. The communist dictator Josip Broz Tito had promoted ‘brotherhood and unity’ among the peoples living in Yugoslavia since he came to power after World War II, but after he died in 1980, the federation would soon unravel (Fine, 2006, p. 277; Kollander, 2004, pp. 7-8). In the years that followed, Yugoslavia's economy started to falter. These problems were exacerbated by the end of the Cold War, which caused the country to lose some of its strategic importance and international prestige (Woodward, 1995, pp. 15-16). The rising nationalism that subsequently swept through the region would soon lead to the dissolution of the country. After Slovenia declared independence in the summer of 1991, a ten-day war followed in which 50 people lost their lives. Slovenia was relatively homogeneous in its ethnic composition, and it was apparent that it had a strong national guard ready to protect the country (Kollander, 2004, p. 7; 10). In Croatia, on the other hand, about 12 % of the population was Serb (Kollander, 2004, p. 10), and in Bosnia, matters were even more complicated. About 40 % of the population were Bosnian Muslims, or Bosniaks, and the country furthermore was home to large Serbian and Croatian minorities (Kollander, 2004, p. 11). With their declarations of independence, war between these parties was imminent as the Croat and Serb minorities had been seeking to unite with their ‘mother country’ and the Bosnian Muslims also feared remaining in a Serb dominated Yugoslavia (Kollander, 2004, p. 11; LeBor, 2006, p. 26).

A long and brutal war followed, especially in Bosnia, where towns were cleansed of their minority populations. It entailed brutal campaigns of killings, intimidation, rape and other brutal acts (Kollander, 2004, p. 12). After peace was established between the former republics of Yugoslavia, violence also erupted in Kosovo. As will be more extensively covered in Chapter 11, the violence caused NATO to take collective action, hoping to force Milosevic to refrain from using further violence. An 11 week bombing campaign ensued, during which NATO demanded that Serbia withdrew its forces and commit to a ceasefire while agreeing to the deployment of an international force to the region, allowed refugees to return, and grand humanitarian agencies unimpeded access (Roberts, 1999, pp. 102-103).

INTRODUCTION

In order to understand the causes of mass atrocities, a wide array of risk factors have been identified which are said to heighten the potential for mass violence. These factors range from structural societal factors like episodes of previous conflict and schisms in society to more immediate factors such as periods of economic or political crises and the level of democracy, or lack thereof (e.g. Harff, 2003; Staub, 2000, pp. 369-370; Woolf & Hulsizer, 2005). The latter point is of particular relevance to the present research. Many scholars have argued that dictatorial regimes and their leaders, especially if they profess an exclusionary ideology, are important for the perpetration of mass atrocities (Mandel, 2002, p. 262; Staub, 2000, p. 372; 2010, p. 174; Valentino, 2004; Woolf & Hulsizer, 2005, pp. 106-108). Surprisingly little research exists, however, on why this is so and how the dictator relates to the other factors that have been identified as important risk factors which enhance the possibility that mass atrocities occur (an exception is McLoughlin & Weerdesteijn, 2016). The current research on leaders who perpetrate mass atrocities therefore remains underdeveloped (McLoughlin & Weerdesteijn, 2016, p. 118; Padilla, Hogan, & Kaiser, 2007, p. 177; Woolf & Hulsizer, 2005, p. 107).

Mass atrocities are not only perpetrated in dictatorships, nor do all dictatorial regimes perpetrate atrocities, but the absence of an established democratic system of government heightens the risk mass atrocities will be perpetrated. Although some of these regimes will be merely unable to stop the perpetration of atrocities, frequently the dictatorial regime is orchestrating its perpetration. Dictatorial rule has led to horrible suffering and as Chirot notes, ‘[i]n some cases, it was error, the mistaken policies of rulers that produced such horrors. But more often than not, killing and suffering on a gigantic scale was started on purpose, to carry out specific political goals’ (Chirot, 1994, p. 9). These included either obtaining or solidifying power, or executing particular policy goals, once in power (Chirot, 1994, pp. 7-9; Woolf & Hulsizer, 2005, pp. 106-107). Valentino even goes as far as saying that generally,

INTRODUCTION

While the previous chapter investigated two case studies that played out before the responsibility to protect was developed and adopted by states, overarching lessons about the manner in which the ideology of a non-democratic leader influences his decision-making process, can be relevant for the future implementation of the responsibility to protect.

As was explained in Chapter 4, the third pillar of the responsibility to protect expressed the preparedness of states to intervene, under Chapter VII of the UN Charter if need be, to protect the population from genocide, war crimes, crimes against humanity and ethnic cleansing when the state in which the crimes occurs is unwilling or unable to do so. Frequently, as we have seen in previous chapters, when mass atrocities have occurred in non-democratic regimes, the dictator actually has orchestrated the violence. He has incited the crimes, legitimized them and formed the institutions that perpetrated the crimes. Under those circumstances, when the dictator plays such a crucial role, intervening under the third pillar often means that the international community needs to persuade the dictator to stop the perpetration of atrocities.

Within the framework of the responsibility to protect and Chapter VII of the UN Charter, peaceful measures are preferred over force in order to achieve the objective, but military intervention should be considered as a last resort. What are the lessons that can be drawn from the interventions in Cambodia and Kosovo for the manner in which the responsibility to protect should be implemented and what implications does it have for the manner in which we study dictators and their rationality? Are these interventions success stories? These are the questions that will be asked and answered in the present chapter.

Firstly, the different choices each of the dictators made will be explained from the perspective of Weber's two types of rationality. Secondly, the rationality of the decision will be differentiated from that of the dictator who took the decision and it will be analysed what role mistakes and misperceptions played in the decision-making process.