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Anteprima

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Winter 2008] The Soldier and the Sheik 95

The Constitution and Exercise of Power in Military-Civilian

2. SSTR Negotiations

The negotiating strength of a U.S. military officer in an SSTR

operation is not as simple as his or her BATNA or EATNA. Power is

111 It would also be a mistake to think that

dynamic and situational.

a U.S. military negotiator’s power is limited to his ability to apply

112 Traditional indicia of power – political power, wealth, pres-

force.

tige, social influence, governmental or statutory authority, or most

relevant to this study, military superiority, control, and ability to ap-

ply force – may not necessarily translate into power at the negotiat-

113 A party’s power can come as much from the making of a

ing table.

credible threat as from the actual capability to carry out the

114 115 116

Perception plays an important role, as can patience.

threat.

A skillful negotiator can increase and exercise his power through

117

communicative processes that enable him to exercise influence.

Even with a weak BATNA, the capacity to use what latent or poten-

tial power one does have is itself a form of power, because it can affect

118 These latter

the way the other party in a negotiation behaves.

111. See Korobkin, supra note 93, at 867; Zartman, supra note 17, at 76. R

112. See Interview with RM, supra note 36, at 10 (“It would be totally R

counterproductive.”).

See David C. King & Richard J. Zeckhauser, Legislators as Negotiators, in

113.

N B O 208 (Robert H. Mnookin & Lawrence E. Susskind

EGOTIATING ON EHALF OF THERS

& S , supra note 33, at 250 (citing T S , T

eds., 1999); L R

AX EBENIUS HOMAS CHELLING HE

S C 22 (1960)) (“[M]ore military potency [and other traditional in-

TRATEGY OF ONFLICT

dicia of power] are by no means universal advantages in bargaining situations; they

see also Interview with JJ, supra note 22, at 32 (“It was

often have a contrary value.”); R

knowing the theory that we were not there – as an organization, understanding that

we were not there to force people to do things at gunpoint. We purposely subjugated

ourselves to the District Advisory Council in order to legitimize that government.”);

see generally, Zartman & Rubin, Symmetry and Asymmetry, supra note 66. R

114. See K , supra note 93, at 868. R

OROBKIN

115. See U ., supra note 107, at 8. R

RY ET AL

116. See K , supra note 93, at 870-71 (The interviews show that some- R

OROBKIN

times U.S. military negotiators would refuse to concede an issue for weeks during an

ongoing negotiation to demonstrate their unit’s power, to call the bluff of their Iraqi

counterpart, or to demonstrate that they would not be pushed around.); Interview

supra note 22, at 22-23. While this is an example of the Army unit asserting

with JJ, R

its power through its ability to be patient, it also suggests that the Iraqi negotiators

were asserting forms of power that the U.S. soldiers felt they needed to resist.

See, e.g., K , supra note 102, at 45 (“Power is a potential and actual

117. R

ELTNER

process of intentionally influencing events, beliefs, emotions, values, and behavior of

others in order to satisfy self and/or others’ needs and desires by performing some

Symmetry

actions which are basically communicative in nature.”); Zartman & Rubin,

supra note 66, at 281.

and Asymmetry, R

118. See Docherty, supra note 101, at 863-64; Zartman & Rubin, Symmetry and R

Asymmetry, supra note 66, at 277 (discussing the tactics weaker parties employ as R

counterstrategies to the domination by stronger parties).

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96 Harvard Negotiation Law Review [Vol. 13:67

techniques of asserting power in a negotiation are particularly impor-

tant in the context of a military-civilian interaction, where coercive

power is more likely (but not always) to be imbalanced. A U.S. sol-

dier negotiating in an SSTR operation should be aware of these forms

of power – not only because he could exercise them when possible but

because his negotiating counterparts are very likely to attempt to ex-

119

ercise such power.

For these reasons, it is hard to generalize about the amount and

nature of power held by the U.S. military or its Iraqi civilian counter-

parts, except in two ways: First, the U.S. military has and continues

to have (though in changing forms) overwhelming coercive power of

one kind – the application or threat of direct military force, including

lethal force, arrest, detention, raids, and searches – by obvious virtue

of the control that comes with its military control of Iraq and its supe-

rior military capability. One officer noted that “[i]t was unavoidable

in the negotiations. It was a fact. I walked into the negotiation with

a 9mm pistol on my hip . . . . It was an unavoidable fact that my

presence there was justified only by my ability to maintain it through

violence. And that was accepted. I didn’t apologize for it but I tried

120

not to push people around for it.”

Second, the U.S. military operates under a number of structural

and political constraints that necessarily restrains its use of military

121 These two exceptions may not be of equal weight, however.

power.

The experience of this study’s interviewees suggests that the coercive

power held by the military – whether exercised or not – is an ever-

122 while the constraints that mitigate

present fact in negotiations,

119. See Zartman & Rubin, Symmetry and Asymmetry, supra note 66, at 277 (not- R

ing that weak parties may be cooperative or evasive but not submissive; instead they

bluster, dawdle, appeal, borrow power, exercise a veto, etc.).

supra note 22, at 31.

120. Interview with JJ, R

121. The U.S. military is constrained by U.S. and international law as well as its

See, e.g., Geneva Con-

own policies, practices, procedures, protocols, and standards.

vention Relative to the Treatment of Civilian Persons in Time of War, Aug. 12, 1949,

6 U.S.T. 3516; Uniform Code of Military Justice, 10 U.S.C. §§ 801-950 (2000); SASO

M , supra note 2. Just as important, it has mission-specific objectives

F R

IELD ANUAL

(e.g. establishing local government councils, training security forces, and building in-

dependent Iraqi institutions) and political imperatives – supporting the transition

from U.S. control to Iraqi sovereignty – which requires the U.S. military to respect

Iraqi sovereign authority in many situations. This is increasingly the case in Iraq, as

the U.S. pushes to hand over control of the country to Iraqis and its security forces.

See Interview with BP, supra note 22, at 11 (“[T]here’s a lot of negotiating

122. R

power when you’re sitting at a table, like we are, say with an interpreter over here

and right in front of you, in between us, is an M16.”).

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Winter 2008] The Soldier and the Sheik 97

that power are more dependent on the situation and context. Never-

theless, beyond (or in spite of) these two factors, the parties in mili-

tary-civilian SSTR negotiations have varying relative amounts of

power in any given negotiation that are constituted by a variety of

factors and exercised in many different ways.

Force and Power in Military-Civilian SSTR Negotiations

(a)

Even though the power of the U.S. military is mitigated by vari-

ous factors in the unique context of an SSTR operation, some mili-

tary-civilian negotiations continue to take place in an environment

characterized by the overwhelming presence of military force and

power. It is important to remember that application of force may

often remain an option and the threat of force may sometimes be

used. Therefore, when studying the factors that constitute U.S.

soldiers’ negotiating power and perception of their power in negotia-

tions with civilians, as well as any tactical decisions to try to exercise

that power, I paid particular attention to the role played by force.

Analysis of the interviews shows that officers negotiating in Iraq

almost always conducted negotiations in which their coercive power

was substantially greater than the power of their Iraqi counterpart or

in which the officers perceived their power to be significantly greater.

In such cases, the U.S. negotiators often exercised their dispropor-

123 This is

tionate power by demanding agreement on their terms.

consistent with negotiation research suggesting that parties with

124 However, the

more coercive power tend to exercise their power.

negotiations described in the interviews rarely included the direct

use or threat of military force. One negotiation discussed by the of-

ficers that did include use or threat of force involved a sheik’s initial

detention during a raid and the later threat, during negotiations, of

125 In a larger sample, there are likely to be more such

his arrest.

uses or threats of force as a way of exercising power.

The interviews suggest instead that it is much more common for

officers to use indicia of force to demonstrate their ability to exercise

force as an alternative to negotiation, hoping thereby to increase or

123. See, e.g., Interview with CG, supra note 22, at 46 (discussing threats to dis- R

continue funding); Interview with JW, supra note 22, at 16-21 (discussing negotia- R

tions with local sheik seeking release of prisoners in which JW kept sheik waiting for

30-60 minutes as demonstration of power and refused to release the prisoners).

See Zartman & Rubin, Power and Practice, supra note 96, at 16-17; Zartman

124. R

& Rubin, Symmetry and Asymmetry, supra note 66, at 275-77 (providing support for R

the proposition that negotiators with high relative power tend to behave

exploitatively). supra note 22, at 13.

125. Interview with EH, R

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98 Harvard Negotiation Law Review [Vol. 13:67

126 One officer arrived at a negotia-

bolster their negotiating power.

tion with a deliberately over-sized contingent of soldiers as a show of

127 Another threatened at the

force to demonstrate his seriousness.

end of a negotiation that if his Iraqi counterparts did not fulfill the

commitments made during the negotiation, he would return the next

128 In a

day with a lot of soldiers, and “we will discuss this again.”

negotiation with the director of an electric power station that sup-

plied his base but had not been providing power consistently, the

base commander first asked for and listened to the director’s reasons

why his workers were cutting off the base’s power. He then re-

sponded by trying to guarantee their safety from insurgent threats,

but he added that if his safety guarantee was not effective in restor-

ing power to the base, he would resort to force and permanently oc-

129

cupy the power station.

While these negotiations did not include the use of actual force,

they included explicit or implicit threats of force. In these instances,

the officers were trying to take tactical advantage of what they per-

ceived to be asymmetric power in their favor by influencing the per-

ceptions of their counterparts. In many cases, the negotiations led to

successful agreements that satisfied the U.S. military negotiator.

This supports relatively new research findings that power asymme-

try may actually lead to negotiations that are more efficient and ef-

130

fective than ones characterized by near-symmetric power.

Sometimes the results were not as clear, however.

When a civil-military operations unit of the Fourth Infantry Di-

vision was attacked in August of 2003 after two and a half months of

peaceful operations just north of Baghdad, the commander called a

131 Describing the interac-

city council meeting of the local sheiks.

tions between the U.S. Army unit and the local Iraqi leaders, one of-

didn’t really become a negotiation after the attacks

ficer said that “[i]t 132 The

started. It was more of a finger proverbially in the chest.”

sheiks were told that such attacks were unacceptable and that they

were expected to provide information on who had committed the at-

tacks and to cooperate with the U.S. forces in the area to prevent

126. This is a classic example of “BATNA bashing.” See M ., supra

NOOKIN ET AL

note 41, at 25. R

127. Interview with JD, supra note 22. R

128. Telephone Interview with CG, supra note 22. R

129. Interview with JW, supra note 22. R

130. See Zartman, supra note 17, at 76 (citations omitted). R

131. Interview with TS, supra note 22. R

132. Id. at 6.

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Winter 2008] The Soldier and the Sheik 99

future ones. The captain involved had a difficult time calling it a ne-

133

gotiation, because on security issues, it was “very much one way.”

The conduct of this negotiation and the series of related negotiations

between the American soldiers responsible for the area and local

sheiks was affected by the U.S. soldiers’ perceptions of their power in

that particular context. The interview makes clear that the source of

that perception was the obvious fact that the U.S. Army was the le-

134 The perception of how this

gitimate military force in the area. 135

translates into power in the negotiation is worth exploring.

According to this perception, the U.S. negotiator’s power was

constituted primarily, if not exclusively, by the potential to apply

force of some kind, and was much greater than that held by the

Iraqis. In fact, because such a perception necessarily assumes that

the U.S. military has a monopoly on the legitimate use of force, the

sheiks were perceived as being relatively weak.

The parties’ perceptions play a critical role in this relationship

136 The potential for

between military force and negotiating power.

cognitive bias in these perceptions is significant. I will not address

the substantial body of research on cognitive bias in negotiation or

attempt to apply it to the negotiations discussed by the interviewed

officers, but it is important to note the likelihood that in at least some

cases, a U.S. soldier may overestimate his negotiating power and

mistake his ability to apply force (which he may have) for the power

to demand concessions in a negotiation (which he may find out he

137 In negotiations laced with the kinds of opportuni-

does not have).

ties for cognitive bias that both cultural differences and military

power present in especially tempting ways, an awareness of the exis-

tence, challenges, and effects of cognitive bias may be especially im-

portant to those U.S. military negotiators or trainers interested in

138

improving their negotiating effectiveness.

133. Id. at 5.

Id. at 6.

134. Power and

135. “Much of power is a matter of perception . . . .” Zartman & Rubin,

supra note 96, at 13. Exploring the perception of power is more useful than

Practice, R

trying to define a static objective reality of power between the parties, because percep-

Id. at 13-14.

tions govern the negotiators’ behavior.

136. See id. at 13 (discussing power as “a perceived relation”).

137. See, e.g., Daniel Kahneman & Amos Tversky, Conflict Resolution: A Cognitive

in B C R , supra note 105, at 44, 46-50 (dis-

Perspective, R

ARRIERS TO ONFLICT ESOLUTION

cussing optimistic overconfidence bias); Interview with RM, supra note 36 (suggesting R

that many fellow Marines make this mistake).

138. I raise the issue of cognitive bias because the intensity of the SSTR environ-

ment and the incredible amount of new information faced by U.S. soldiers in such an

environment, including cultural differences, provide such a ripe set of circumstances

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100 Harvard Negotiation Law Review [Vol. 13:67

SSTR operations are challenging because stabilization, security,

139 In the

transition, and reconstruction may take place concurrently.

context of what otherwise would be reconstruction, for instance, a le-

gitimate need to use force may arise for security-based reasons. In

some locations, the military may still be performing a more tradi-

tional security operation, and in others, it may be executing primarily

a reconstruction and transition mission. Nevertheless, for the pur-

poses of studying negotiations that take place in SSTR operations,

any particular negotiation can be placed on a continuum according to

its immediate context and the particular mix of security, reconstruc-

tion, and transition activities taking place.

The use of military force in an SSTR operation can be charted on

a continuum showing how the nature of operations changes as an

140

SSTR operation matures. At the beginning of the continuum, the

military is primarily concerned with security and stabilization, which

will involve basic reconstruction of essential infrastructure and hu-

manitarian aid but will mostly be concerned with securing the coun-

try. There are more kinetic operations and a higher chance that

lethal force will be used. As the operation progresses, security con-

tinues to be a priority, but the mix of activities changes from prima-

rily security-focused objectives to transition and reconstruction

activities, which include operations to construct schools and hospi-

tals, train new security forces, and establish, supervise, and coordi-

nate with local civil government. In this context, direct military force

is not used or threatened, even though any potential force that the

141

military could apply continues to be an obvious fact.

for cognitive biases. See Morris & Gelfand, supra note 47, at 45. The potential for R

tactical mistakes due to bias is high because of the sometimes overwhelming informa-

tion-processing demands inherent in negotiating in a war zone with civilians of an-

other culture. See id. For an excellent and more general review of the current state of

supra note

research on cognition and biases in negotiation, see Leigh Thompson et al.,

21. R

139. See C C. C & W. A T , U.S. A W C ., R

ONRAD RANE NDREW ERRELL RMY AR OLL ECON-

I : I , C , M M F

STRUCTING RAQ NSIGHTS HALLENGES AND ISSIONS FOR ILITARY ORCES IN A

P -C S 2-5 (2003);

OST ONFLICT CENARIO

See id.; see generally C . T . & N ’ S P , supra note 2

140. R

TR FOR ECH AT L ECURITY OLICY

(discussing how “[t]he changed operational environment that U.S. forces face when

combat ceases” require a change in preparation and execution strategies).

141. Resorting to force reflects a failure to resolve the dispute or find an agree-

ment, and while that may sometimes be a necessary result of an interaction in the

tense and often violent environment of an SSTR operation, using force because negoti-

ation failed usually represents “a failure of skill, a failure of will, or a dearth of crea-

tivity on the part of one or more of the disputants.” Michael L Moffitt & Robert C.

Perspectives on Dispute Resolution: An Introduction, in T H

Bordone, HE ANDBOOK OF

D R 1, 11 (Michael L. Moffitt & Robert C. Bordone eds., 2005).

ISPUTE ESOLUTION

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Winter 2008] The Soldier and the Sheik 101

The interviews show that the issue of force is a factor in the bal-

ance of power between the parties to a negotiation to a greater or

lesser extent depending on how close to kinetic operations that nego-

tiation falls on the SSTR continuum. The closer a negotiation is on

the continuum to combat operations, the greater the chance that the

soldier will perceive himself to have more power in the negotiation

and the more likely it is that his Iraqi counterpart will believe the

142 The threat will be more credible. But these percep-

same thing.

tions are likely to be different the farther away the negotiation is

from kinetic operations, and the more closely it is to transition and

reconstruction operations. In this instance, the threat of direct mili-

tary force will have less influence on the U.S. military negotiator’s

143 In this case, the nego-

power in a negotiation with an Iraqi leader.

tiating power of the U.S. soldier is more likely to be constituted by

144 In particular,

factors other than his ability to apply lethal force.

the increasing importance of relationships as operations move from

lethal combat to reconstruction likely plays the most significant role

in constraining the soldier’s exercise of his otherwise asymmetric mil-

145

itary power.

Still, the interviews suggest that U.S. soldiers negotiating with

Iraqi civilian leaders tend to think of their negotiating power as con-

stituted primarily by their military power, even in situations when

their power in a negotiation may not be coextensive with their ability

to apply military power. In other words, soldiers often think too nar-

rowly of their power in a negotiation as being mostly made up of the

“power” with which they are most familiar: the power they can exert

militarily. Yet a structural analysis of the issues and context of the

142. The perception of power symmetry or asymmetry is related to elements such

See Zartman & Rubin, Power and Practice, supra

as force, resources, and reputation.

note 96, at 13. R

143. Analysis of the negotiations discussed in the interviews confirms this. Most of

the negotiations in which officers threatened force or used indicia of force to influence

their counterpart were negotiations related to security concerns. Generally, the of-

ficers did not use the same tactics in the many negotiations they discussed that con-

cerned reconstruction or transition to Iraqi civil government, although they

sometimes still characterized their power as being their military power to coerce.

144. By his control of funds, for instance. His power relative to the Iraqi(s) with

whom he is negotiating is likely to be reduced by, for instance, the Iraqi town council’s

control of prioritizing reconstruction projects as part of the transition to Iraqi sover-

eignty, to which the U.S. military is committed. This reflects research that suggests

that relative total power, in this case the military power to coerce and control, is not

as relevant as issue-specific power in a particular negotiation, in this case decisions

See Salacuse, supra note 68, at 261.

about reconstruction in the town. R

145. See Zartman & Rubin, Symmetry and Asymmetry, supra note 66, at 283-84 R

(citing relationships as the last of three constraints on a strong party’s power).

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102 Harvard Negotiation Law Review [Vol. 13:67

negotiations discussed by the officers leads to the conclusion that

even if the negotiation takes place only because the U.S. military has

146 the negotiating

the capability to assert its power through force,

power that the military holds is constituted by a complex interaction

147

of factors. The U.S. military negotiator is not guaranteed to

148 The apparent disconnect between

achieve his intended outcome.

most officers’ understanding of their negotiating power and the

power they may have actually had suggests the need for additional

training.

(b) Interests, Rights, and Power in SSTR Negotiations

All of the negotiations described in the interviews reflect the

complexity of SSTR operations and reinforce the premise that the rel-

ative negotiating power of the parties depends on numerous dynamic,

interdependent factors. The negotiating power of the U.S. soldier is

far from absolute.

Negotiations conducted in the context of an SSTR operation are

consistent with the theory that interests, rights, and power exist con-

currently in negotiations, and that the parties may choose to focus on

one of them, or cycle among the three, during the course of the negoti-

149 In this framework, interests are discussed and reconciled in

ation.

the context of the parties’ rights and power, while rights are deter-

150

mined and settled in the context of the power each party holds.

The parties can make a tactical choice to focus on one of these ele-

ments, but research suggests that parties move frequently among in-

151

terests, rights, and power foci in the same negotiation.

The discussion above concentrated on negotiations in which the

U.S soldier focuses primarily on his power (or perceived power), using

negotiating power constituted mostly by his military power to coerce

146. See Interview with JJ, supra note 22 (“There were some people who made it R

absolutely clear through every negotiation that they were only negotiating with the

United States Army because we were the people that were there with the firearms all

over Iraq.”).

147. The U.S. military negotiator’s power to negotiate an outcome may be de-

tached from his military power.

See Interview with BP, supra note 22 (concluding that the military power –

148. R

the show of weaponry and equipment – was inevitable and obvious but as an effect on

the negotiation was limited to keeping the discussion civil, to “a low key, never very

heated”). The Strategic Use of Interests, Rights, and Power to Re-

149. Anne L. Lytle et al.,

15 N . J. 31, 34 (1999); see generally U ., supra note 107.

solve Disputes, R

EGOT RY ET AL

150. Lytle et al., supra note 149, at 33-34 (citing U ., supra note 107). R

RY ET AL

151. Id. at 34-38 (finding more emphasis on rights and power in the first and third

quarters of the negotiation than in the second and fourth quarters).

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Winter 2008] The Soldier and the Sheik 103

his Iraqi counterpart into agreement on the American’s terms. How-

ever, many of the negotiations discussed by the officers exhibited a

cycling between interests and power, if not also of rights, and re-

flected a more subtle balance of power.

For instance, several negotiations documented in the interviews

concerned the U.S. military’s need for information from local sheiks,

on the one hand, and the sheik’s requests for fewer raids and

searches of homes, on the other hand. A civil-military operations of-

ficer participated in one with a neighborhood advisory council (NAC)

152 The sheiks’ demand appears to have been rooted in

in Baghdad.

their interests and in a claim of right to be free from frequent raids.

The U.S. military negotiators addressed the sheiks’ concerns in a way

that could be characterized as a claim of right to search houses when-

ever it had information that insurgents or weapons were present.

This right was, of course, bound up inextricably with the U.S. Army’s

power to raid houses. The U.S. officer’s statement that the raids

would continue as long as his unit believed they were necessary relies

on the military’s coercive power to search. Interestingly, the negotia-

tion cycled back to interests as the U.S. negotiators offered a solution

seemingly based on the two parties’ interests. The U.S. Army’s pri-

mary interest was in getting specific and correct information on in-

surgents, which would lead to fewer and more targeted raids in the

sheiks’ neighborhoods, thereby meeting the sheik’s interests in less

disruption of their constituencies. Consistent with the interest,

rights, and power framework of negotiations, this interest-based solu-

tion was offered in the explicit and looming shadow of military power.

While NACs often rejected such solutions publicly, members often

153

gave information to American forces soon thereafter.

Similarly a Marine junior officer – who spent ten days welcoming

and meeting residents as they returned to Fallujah after U.S. and

Iraqi forces had cleared the city of insurgents, effectively destroying

or damaging most of the city’s buildings and houses – negotiated by

154 Residents scared of and an-

focusing both on power and interests.

gry at both U.S. forces and insurgents were reluctant to give informa-

tion to U.S. soldiers about insurgent activity and membership. In a

still-tense security environment heavily characterized by military

power, the officer reminded the residents that providing the U.S. mil-

itary with information to help it defeat insurgents and keep them out

of Fallujah was the only way that the residents could free themselves

152. See Interview with JJ, supra note 22, at 7-8. R

153. Id. at 8.

See Interview with RM, supra note 36, at 3-6.

154. R

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104 Harvard Negotiation Law Review [Vol. 13:67

from both intensive U.S. occupation and insurgent violence and in-

155 This negotiating tactic emphasized the interests of the

timidation.

Iraqi residents in an attempt to persuade them that their interests

would be best served by giving him information. He did this while

subtly presenting the specter of continuing and overwhelming U.S.

military power embedded throughout their city. The Marine’s negoti-

ating power was at once limited and enhanced by the residents’ inter-

ests in ridding themselves of both insurgents and Americans. On the

one hand, his military power did not mean the ability to get what he

really needed – information – by simply asking, and it may have

weakened his bargaining position because of Iraqi resentment. Many

156 On the other hand, by

residents did not provide any information.

cycling through both interests and power, this Marine was successful

at encouraging many residents to provide information because they

agreed that it aligned with their interests, even if they were not

157

happy to cooperate.

These findings suggest that military-civilian negotiations in

SSTR operations can accommodate the exploration and discussion of

parties’ interests, even in the shadow of military force and power.

Later in this paper I suggest that introducing a focus on interests

into a negotiation may increase a soldier’s effectiveness and improve

158 This requires the soldier to view his negotiating

his outcome.

power as constituted by more than just his military power.

3. The Role of Relationships in Military-Civilian SSTR

Negotiations

U.S. engagement in Iraq evolved from an invasion and quick

transition operation to a longer-term SSTR operation in which long-

term relationships do matter to the American military’s ability to

159 Yet, with

successfully accomplish its various missions in Iraq.

thousands of negotiations conducted by thousands of U.S. soldiers

across Iraq, it is not surprising that some officers conclude that the

155. Id. at 5-8.

See id. at 9.

156. Id. at 4-8. By doing this, RM exercised power that was constituted not by his

157.

ability to coerce but by his willingness to engage the interests underneath Iraqi frus-

tration with the American presence, by his personal ability to persuade, and by his

skill at quickly building rapport.

See infra Section 4.

158. See Metz & Millen, supra note 8, at 51 (arguing that the new strategic envi-

159. R

ronment requires sometimes turning enemies into non-belligerents, allies, and

supra note 22, at 17 (“[I]nterpersonal relationships will

friends); Interview with EH, R

continue to be an important part of warfare.”).

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Winter 2008] The Soldier and the Sheik 105

160

relationship was “paramount” to almost every single negotiation,

while others did not think that relationships were always

161

important.

A little more than half of the officers interviewed for this study

said that relationships played an important role in their negotiations.

This is little more than recognition of the fact that the negotiations

they were conducting were embedded in the social, political, and in-

stitutional relationships created by the nature of the SSTR opera-

162 In some cases, a relationship of some sort is a prerequisite to

tion. 163 In other

engaging in even the most non-contentious negotiation.

cases, the cultivation and maintenance of good working relationships

was important to productive reconstruction efforts, governance, and

164 In still more cases, the relationship itself

efficient operations.

was a negotiation objective, sometimes taking priority over other po-

165 This was true, despite the fact that some negoti-

tential outcomes.

ations took place between U.S. military personnel and Iraqis who

166 When a

negotiated only because the Americans had the firepower.

relationship between a U.S. soldier and an Iraqi is long-term, which

many are, the value placed on that relationship has an important ef-

167

fect on the negotiation.

The interviews indicate that, generally, U.S. officers are acutely

aware of the importance of their relationships with local civilian lead-

ers and are highly cautious about damaging those long-term relation-

ships or violating cultural norms, even at the potential expense of

160. See Interview with JJ, supra note 22, at 23. R

161. For one officer, “I was just another soldier to them most of the time. In only a

few instances did I have the time to get to know an Iraqi closely enough to earn their

supra note 22, at 15.

true trust and friendship.” Interview with EH, R

162. See Roderick M. Kramer, The Dark Side of Social Context: The Role of Inter-

in T H C N

group Paranoia in Intergroup Negotiations, HE ANDBOOK OF ULTURE AND EGO-

, supra note 21, at 220. R

TIATION

163. “[S]ocial relations are really everything . . . your word is everything, and you

supra

don’t really get anywhere until you know somebody . . . .” Interview with JW,

note 22, at 15, 42; see also Interview with RM, supra note 36, at 5, 6 (noting that he R

never got information the first time he met someone).

See Interview with BP, supra note 22, at 33; Interview with JJ, supra note 22,

164. R

at 22. See Interview with JJ, supra note 22, at 22-23. This is consistent with the

165. R

negotiation literature. See Kopelman & Olekalns, supra note 46, at 378. R

166. See Interview with JJ, supra note 22, at 23-24. R

167. See Interview with MM, supra note 22, at 19-20; Interview with RM, supra R

note 36, at 5-6 (stating that when he secured information it was only after a relation- R

ship of some sort had been established).

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106 Harvard Negotiation Law Review [Vol. 13:67

short-term objectives, the accomplishment of which may require tac-

tics that are inconsistent with the maintenance of a positive relation-

168 In order to maintain a relationship, for instance, a

ship.

commander may have to let a sheik “win” in front of his people, while

achieving the commander’s immediate objective would require the

breach of a cultural norm certain to alienate the sheik. This conclu-

169

sion comes with numerous caveats. It often depends on what

objectives are at stake and the urgency they are seen to have by U.S.

commanders. The U.S. Army’s National Training Center (NTC) un-

derstands this tension and knows that officers value their relation-

ships with Iraqis sometimes to the point of subordinating immediate

objectives. Its negotiation training makes the point that cultural

niceties are important, but officers should stay focused on their in-

170

tended outcome. Following training on cultural awareness, the

NTC emphasizes that commanders be prepared to set aside the de-

mands of cultural norms when necessary in order to accomplish a

171

task.

One example demonstrates the difficult balancing act soldiers

must undertake due to the role of relationships in the negotiation. A

Marine commander, who negotiated frequently with the same local

sheik because his town was nearby the base, needed heavy equip-

172

ment from the town to improve his base’s security perimeter. In

one analysis, the Marine had the power to demand the equipment

and the military capability to seize it. However, another analysis

would suggest that the interests and relationship at stake interacted

in a more complex way with the commander’s and sheik’s power,

leading the Marine to negotiate differently. The commander never

demanded the equipment. Even though the base’s security was at

stake, the commander did not resort to force or assert the military

power to take the equipment. Instead he allowed the sheik to exer-

cise considerable power in withholding the equipment for several

173

weeks when he “desperately” needed it.

168. See, e.g., Interview with JJ, supra note 22, at 6-7. R

169. See Interview with CG, supra note 22, at 38 (suggesting that the U.S. Army R

often, because it stresses the importance of being culturally aware and sensitive and

respectful, does not push the envelope enough when it should, and “say . . . ‘Bullshit is

bullshit, no matter where you’re at.”).

See Interview with Major Jonathan Velishka, United States Army, at Fort

170.

Irwin, Cal., at 14 (Mar. 2, 2006).

Id.; see also Training Materials (on file with Major Jonathan Velishka, Na-

171.

tional Training Center, Fort Irwin, Cal.).

See Interview with JW, supra note 22, at 13-15.

172. R

173. Id. at 14-15.

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Winter 2008] The Soldier and the Sheik 107

What appears to have mitigated the commander’s exercise of his

military power was the priority he placed on cultivating and main-

not based on the applied

taining a cooperative, positive relationship

force of military occupation. He perceived this relationship to be im-

portant for two reasons: First, the commander feared that the sheik

was or could be networked into the insurgency and could increase the

174

danger to U.S. and Iraqi forces operating near and in his town.

175

Many of the officers cited this or a similar consideration. Second,

the relationship may itself have been important to obtaining the

equipment, and a stronger relationship with the sheik may have ac-

176

tually translated into more negotiating power if used effectively.

For the commander, this was a frustrating negotiation with limited

success, but throughout the negotiation he continued to maintain the

kind of relationship with the sheik that he believed was a tactical

priority because of long-term security concerns.

The importance of relationships to negotiations between soldiers

and local civilian or military leaders in SSTR operations leads to the

conclusion that the value placed by the relevant military decision

maker on the relationship(s) at stake in a negotiation will likely have

an effect on the way that the U.S. military negotiator approaches and

177 In one way, it has the potential to

conducts the negotiation.

weaken the negotiating power of the U.S. soldier because the value

placed on a positive relationship may limit his tactical negotiating

options as well as his estimated alternatives to a negotiated agree-

ment. To the extent his negotiating power is constituted by his mili-

tary power or ability to use force, it will be constrained considerably

by the priority placed on the relationship. On the other hand, the

importance of a positive relationship to the negotiation may increase

174. Id. at 15. The sheik never threatened or suggested this, but Captain JW sug-

gested the possibility that the sheik was running guns or bombs through the town.

“[I]n the back of our minds at every negotiation, whether it was with the sheik, the

power company, or going into these houses during raids, you always wonder what side

they’re on, you know? You always wonder what side they’re on . . . it’s not like labor

negotiations or something where you know the person’s on the [other] side . . . But in

these negotiations, you never knew if they were good or bad . . . . [Y]ou didn’t know if

they really wanted me dead or if they really cared about me and wanted Iraq to be

Id. at 36-37.

free and prosper . . . .”

See, e.g., Interview with EH, supra note 22.

175. R

176. See Kopelman & Olekalns, supra note 46, at 378 (citing Kathleen L. Valley et R

al., Friends, Lovers, Colleagues, Strangers: The Effects of Relationships on the Process

in R N O

and Outcome of Dyadic Negotiations, ESEARCH ON EGOTIATION IN RGANIZATIONS

5 (R.J. Bies et al. eds., 1995)).

See L , supra note 39, at 54-55; Keith G. Allred, Relationship Dynamics

177. R

EWICKI

in Disputes: Replacing Contention with Cooperation, in T H O D

HE ANDBOOK F ISPUTE

R , supra note 141, at 83. R

ESOLUTION

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108 Harvard Negotiation Law Review [Vol. 13:67

the U.S. soldier’s negotiating power by enabling him to exercise influ-

ence through the relationship that he otherwise could not have exer-

178 One officer believes that the extensive network of

cised.

relationships with Iraqis that he developed during his year serving as

a civil-military operations officer in the Yarmouk neighborhood of

Baghdad became a source of power that he was able to turn into suc-

179 Another officer became

cessful, productive reconstruction efforts.

more confident and effective in his negotiations with a local sheik

180

during his time in Iraq because he negotiated with him repeatedly.

When negotiating with hostile or adversarial parties, one officer

suggested that it was as important to establish the boundaries of the

181 This may be

relationship as to build a cooperative or friendly one.

a tactic necessary to efficiently frame the negotiation and adjust the

hostile party’s misperceptions of their relative position in the negotia-

182 It could be understood as a tactic on the part of the U.S. mili-

tion.

tary negotiator to assert his strength and establish a favorable power

framework for the negotiation. Or it could be a symptom of what has

been termed “intergroup paranoia” based on beliefs – whether true,

false, or exaggerated – that may, in the worst case, cause irrational

distrust and, in the best case, hinder the cultivation and sustenance

of the trust that even the distrustful negotiator recognizes would be

183 Heightened suspicion causes negotiators to approach

beneficial. 184 Several officers

their counterparts with a presumptive distrust.

discussed this challenge to the cultivation and maintenance of trust

in their negotiations with Iraqi civilians, and it is worth noting that

178. See Kopelman & Olekalns, supra note 46, at 378 (noting research that dem- R

onstrates a relationship between strength of friendship ties and negotiation

outcomes). supra note 22, at 26.

179. Interview with BP, R

180. See Interview with JW, supra note 22, at 36. R

181. See Interview with JJ, supra note 22, at 22-24 (“Everything that we did was R

pushed towards maintaining the relationship, which did not always mean being

friends or being polite. Sometimes . . . we were trying to demonstrate our position in

the relationship as the ones in authority and the ones that had power; that we would

not be screamed at in this meeting, or we would not be pushed around. We were not

going to accede to this particular sheikh’s demands.”).

182. Some research suggests that outcomes may be unnecessarily sub-optimal be-

See Kopelman &

cause concern for the relationship outweighs concern for the task.

supra note 46, at 378.

Olekalns, R

183. See Kramer, supra note 162, at 221-27. R

184. See id. at 230. See discussion infra pp. 35-36. The accuser and excuser biases

See Allred, supra note 177, at 85.

may have particular relevance in this situation. R

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Winter 2008] The Soldier and the Sheik 109

the negotiation literature supports the observations made by the

185

officers.

4. Recommendation: Try A Problem-Solving, Interest-Based

Approach to Exercise Power Effectively

When choosing a strategy for how to approach a negotiation with

a leader of the local population in an SSTR operation, U.S. military

negotiators should try an integrative, interest-based approach that

seeks to secure agreement by satisfying the interests of both the sol-

dier and his counterpart. A significant body of negotiation literature

recommends integrative, interest-based approaches to negotiation

that have the potential to produce mutually beneficial outcomes that

186 This model focuses on the un-

meet the interests of both parties.

derlying interests and priorities of the parties instead of the positions

187

they communicate.

This model will not always be an appropriate strategy for the

188 Nor

U.S. military negotiator operating in an SSTR environment.

does it mean that U.S. soldiers should not prepare for and think

about the power dynamics of a negotiation; rather, just the opposite.

When preparing, they should consider the parties’ negotiating power

in all its forms and decide beforehand how they will exercise their

189 Given the role that power and force play in military-civil-

power.

ian SSTR negotiations, it is unrealistic to think that such negotia-

tions can be conducted using an exclusively interest-based approach.

At the same time, the integrative negotiation strategy has a lot to

offer U.S. soldiers conducting negotiations.

Negotiating with a power-focused stance entails higher risks of

entering into a negative conflict spiral that may prevent achievement

185. See, e.g., Interview with JW, supra note 22, at 13-14. Kramer cites the need R

for more field research, including ethnographic research in cross-cultural settings,

that investigates paranoid cognition and the role and development of trust in negotia-

supra note 162, at 231. This study tries to offer the qualitative re-

tions. Kramer, R

search and “thick” descriptions of conflicts and negotiations that he considers

“essential if we are to develop deeper and more nuanced understandings of these im-

Id.

portant phenomena.”

See, e.g., F , U & P , supra note 93; M ., supra note

186. R

ISHER RY ATTON NOOKIN ET AL

41. R

187. See M ., supra note 41, at 28-31. R

NOOKIN ET AL

188. There will be negotiations for which a strategy based on power may have

See Lytle et al.,

advantages, but they tend to be rarer than most negotiators think.

supra note 149, at 41-42. R

189. For general suggestions and lessons on using power, as either a weak or

supra note 68, at 255-69.

strong party to a negotiation, see Salacuse, R

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110 Harvard Negotiation Law Review [Vol. 13:67

190 The negotiation literature

of an outcome desirable to the soldier.

suggests that negotiations dominated by a focus on power or rights

191

result in a contest between the parties over who will dominate.

This literature suggests that such negotiations will have a higher fre-

quency of arguments, personal attacks, threats, and demands, and

192 Most importantly, a

the outcome is more likely to be one-sided.

negotiator who focuses on power in a negotiation is more likely to

create new disputes and leave open opportunities (and motives) for

193 This increases the “costs” of an agreement and may pre-

revenge.

vent the parties from addressing the original issues of the negotia-

tion. A focus on power has this effect because communications

concentrating on power – such as threats and comments about the

weakness of the other party – are often reciprocated during a negotia-

194 A threat prompts a threat. When such communications are

tion.

reciprocated, the negotiation has a higher chance of becoming a nega-

195

tive conflict spiral, putting a negotiated outcome in jeopardy.

When a negotiated outcome is not necessary for the U.S. mili-

196 Likewise, a one-sided re-

tary, this may be an acceptable result.

sult may achieve the U.S. soldier’s immediate negotiation objective.

However, when the U.S. military needs a negotiated outcome because

it will not resort to force, cannot accomplish the objective without

Iraqi cooperation, or because it places tactical value on its relation-

ship or good will with the Iraqi leader, a decision to focus in the nego-

tiation on the parties’ power is likely to be a short-sighted choice. A

military-civilian negotiation in Iraq that creates new disputes,

grudges, and motives for revenge – because one side communicated in

terms of power, to the neglect of the other side’s interests, and a neg-

ative conflict spiral ensued – may cost more in the medium or long

197

term than the short term success was worth.

190. See Lytle et al., supra note 149, at 41-42; M ., supra note 41, at R

NOOKIN ET AL

224. Allred refers to these as “vicious cycles” of conflict escalation. See Allred, supra

note 177, at 84. R

191. See Lytle et al., supra note 149, at 39 (citations omitted). R

192. See, e.g., id.

See, e.g., id.; Interview with RM, supra note 36, at 9.

193. R

194. See, e.g., Lytle et al., supra note 149, at 38. R

195. Id. at 39.

See Interview with Col. M, supra note 26 (noting that it is important to know

196. R

when to use and exert power and when not to, based on a judgment that requires

supra note 22, at 45 (stating

understanding the entire situation); Interview with CG, R

that there is a time and place for using force and power, and one should not be afraid

to use it appropriately when appropriate but must know the relevant limits and rules

of engagement).

197. The U.S. Army recognizes this. In an initial review of civil-military opera-

tions and cultural considerations in Operation Iraqi Freedom, it suggests that

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Winter 2008] The Soldier and the Sheik 111

An analysis of the interviews conducted for this paper support

the above findings from the negotiation literature. One officer noted

that “[m]y approach became much more stern and direct as time

passed. I came off as naive and powerless in initial engagements, but

was definitely a person with which to deal at the end of the year . . . .”

But were the changes successful? “Sometimes, yes; sometimes, no . . .

But most of the time, [my approach led] to delays and shameful

198

grudges.” It is possible that “delays and shameful grudges” may

be a necessary and acceptable collateral effect of a successful negotia-

199

tion. However, a tactical approach to an engagement that causes

such effects is risky, and it is likely to operate against the U.S. mili-

tary’s interest in cultivating or maintaining cooperative, positive, or

at least neutral, relationships with Iraqi civilians in an SSTR opera-

tion that requires the support and good will of the civilian population

to secure the country against insurgents, terrorists, and sectarian

200

fighters.

This is why the U.S. military’s relationships with the local lead-

ers in an SSTR operation have an important influence on a soldier-

negotiator’s power and the conduct of SSTR negotiations in general,

and why U.S. Army and Marine negotiators may want to consider

deemphasizing their military power and focus instead on ways to sat-

201

isfy both parties’ interests. In the case of this officer, who did not

seem to place a priority on preserving relationships with those with

whom he negotiated, he believed that it made him appear less naı̈ve

and weak to become more forceful as his tour in Iraq wore on. Yet his

admission that it caused delays and grudges suggests that his negoti-

ation outcomes were not optimal.

When choosing an overall negotiating strategy, the U.S. military

negotiator runs little risk by opening with a focus on interests be-

cause it does not have to entail any substantive or tactical conces-

202 The circumstances of a negotiation are often

sions or admissions.

such that a focus on interests, in addition to or instead of an exclusive

soldiers weigh short term tactical gains against long term implications and second-

, supra note 3, at 42.

order effects. 2004 CALL R R

EPORT

198. Interview with EH, supra note 22, at 11-12. R

199. See, e.g., Lytle et al., supra note 149, at 40. R

200. See, e.g., Raymond A. Millen, U.S. Army War Coll., The Yin and Yang of

Counterinsurgency in Urban Terrain (Oct. 2005) (unpublished manuscript on file

M & R M , U.S. A W C ., I

with the author); S TEVEN ETZ AYMOND ILLEN RMY AR OLL NSUR-

C 21 C : R T

GENCY AND OUNTERINSURGENCY IN THE ST ENTURY ECONCEPTUALIZING HREAT

R (2004); 2004 CALL R , supra note 3, at ii-iii. R

AND ESPONSE EPORT

201. See M ., supra note 41. R

NOOKIN ET AL

202. See id. at 240; Lytle et al., supra note 149, at 43. R

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112 Harvard Negotiation Law Review [Vol. 13:67

focus on power, would be a more potent negotiating strategy with sev-

203 This recommendation assumes that the U.S. mili-

eral benefits.

tary negotiator will continue to stay attuned to the cultural

dimension of the negotiation, as well as the multi-faceted context of

204

the environment.

Relationships among the parties play an important role in the

interest-based model, making it a particularly powerful framework

for negotiations between U.S. soldiers and civilians in SSTR opera-

tions, especially in Iraq, where the value placed on relationships is

high – both by the culture of the civilians and the mission objectives

of the military. Relationships are an important element of successful

205 but they become even more influential

negotiation across cultures,

in a negotiation when a long-term working relationship is an objec-

tive of the military commander, in addition to an asset in that partic-

ular negotiation. A focus on interests is so important in this context

because finishing a negotiation by satisfying the Iraqi civilian’s inter-

ests instead of his negotiating demands (which may be no more than

bargaining tactics) is more likely to contribute positively to the long-

term relationship.

(a) Combine Power Moves with Interest-Based Problem

Solving

As the findings above demonstrate, military-civilian SSTR nego-

tiations in Iraq were successful when they combined a focus on the

parties’ power with attention to the parties’ interests. A combined

strategy that deliberately cycles between a focus on power and a fo-

cus on interests may be the best way to avoid negative conflict spi-

rals, unintended consequences, and counterproductive negotiation

206 For reasons already noted, it may also be the most real-

outcomes.

istic approach in the context of military-civilian SSTR negotiations.

This recommendation means that U.S. soldiers should, when

faced with a counterpart who makes a rights-based or power-based

203. See id. See generally F , U & P , supra note 93. R

ISHER RY ATTON

204. This emphasis on taking an interest-based approach while maintaining an

eye on power, culture, and context recognizes the limits of an exclusive focus on inter-

ests in the complicated cross-cultural and militarized environment of SSTR opera-

But see Avruch, supra note 48 at 395, 404 (arguing that strictly interest-based

tions. R

bargaining is limited in international humanitarian negotiations).

See Jeffrey M. Senger, Tales of the Bazaar: Interest-Based Negotiations

205. 18 N . J. 233, 234-35 (2002).

Across Cultures, EGOT

206. This approach combining power and interests foci may be just as effective at

redirecting negotiations to the parties’ interests as an exclusively interests-based ap-

See Lytle et al., supra note 149, at 44.

proach. R

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Winter 2008] The Soldier and the Sheik 113

threat or demand, reciprocate the power threat in as noncontentious

a way as possible and simultaneously add a communication that

207 Combining

opens the negotiation to a discussion of interests.

power and interests in the same statement pairs a credible threat

with a specific way for the other party to pursue the positive conse-

quence of agreement rather than only avoid the negative result of the

208 This provides the soldier’s counterpart a way to

threat’s outcome.

save face, defuse or “turn off” the power threat, and come to an agree-

ment with which he may be generally satisfied. The soldier will often

209

want the threat to be defused rather than have to carry it out.

This approach could be understood as a combination of coercive

and reward power, but to be most effective, the “reward” offered must

be based on the counterpart’s true interests. The approach should be

Negotiator’s Dilemma

understood as a productive way to manage the

described by Lax & Sebenius or the tension between creating and dis-

tributing value described by Mnookin et al. The dilemma reflects the

tension between competitive moves to “claim value” for the negotia-

tor’s benefit and cooperative moves to “create value” that enlarges the

210 This tension is inescapable and “affects virtually all tactical

pie. 211 Tactics to claim or distribute value rely pri-

and strategic choice.”

marily on the negotiator’s power, and, like a focus on power discussed

212 These adversarial tactics rarely

above, risks a negative result.

help expand the possibilities of positive outcomes, although they may

be sufficient if the proverbial pie truly is fixed. Cooperative moves to

create value, on the other hand, offer the possibility of increasing the

positive outcomes desirable to the U.S. military negotiator. By com-

bining a focus on power with a focus on interests, a U.S. soldier is

likely to manage more effectively this tension between the adver-

sarial impulse to make demands (and have Iraqi counterparts meet

207. See B , supra note 45, at 115. This is also called “firm flexibility,” in R

RETT

which negotiators are contentious about their basic interests but willing to engage in

See Pruitt, supra note 37, at 87.

flexible problem-solving. R

208. See Lytle et al., supra note 149, at 48. For a recent example, see David S. R

Cloud, In Bid to Rebuild Razed Bridge, Recovery and War Vie in Iraq, N.Y. T ,

IMES

April 6, 2006, at A1.

209. Carrying out the threat means losing the leverage the threat provided,

See, e.g., Lytle

thereby decreasing the party’s negotiating power, not strengthening it.

supra note 149, at 48.

et al., R

210. See L & S , supra note 33, at 29-46; M ., supra note 40, R

AX EBENIUS NOOKIN ET AL

at 11-43. & S , supra note 33, at 30. Competitive and cooperative elements

211. L R

AX EBENIUS

of a negotiation, like power and interests, are “inextricably entwined.” Id.

212. “Claiming” tactics can lead to inferior agreements for both parties, risk im-

passes to agreement, and are more likely to lead to negative conflict spirals of threats

Id. at 246.

and counter-threats.

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114 Harvard Negotiation Law Review [Vol. 13:67

those demands) and the collaborative impulse to find creative,

213

broader-based solutions.

A conscious effort to negotiate in this way will provide the U.S.

military negotiator in an SSTR operation with a better chance at

achieving not only his short term objectives but securing opportuni-

ties and gains that come with stronger working relationships and

more genuinely satisfied negotiating counterparts. Such an approach

recognizes the reality that reciprocal reactions may be instinctive,

and therefore difficult to avoid; that ineffective efforts are commonly

repeated, especially under stressful conditions, despite a negotiator’s

214 that many

intellectual knowledge that such efforts continue to fail;

U.S. military negotiators may be particularly averse to avoiding alto-

gether the reciprocation of threats out of fear that it demonstrates

weakness; and that SSTR negotiations take place in militarized,

power-saturated environments in which “power” is likely, if not inevi-

tably, to play a significant role in negotiations. It also addresses a

215 The ap-

challenge of interest-based negotiation: hard bargaining.

proach is flexible enough to be applied in any negotiation, regardless

of the issues or people involved. It avoids simplistic approaches that

216

advocate either a “win-win” or “win-lose” approach to negotiation.

Several officers interviewed for this study used this approach

with apparent success. It supports the view of one senior officer that

civilians in SSTR negotiations know the U.S. military has the power

to make them do something, but the talent and art of it is making

them want to do it without using force; with force, there are

217

repercussions.

213. Pruitt describes four techniques for managing this tension between “contend-

See Pruitt, supra note 37, at 86-88. This suggestion is

ing” and “problem-solving.” R

consistent with observations that cooperation and a focus on interests are not suffi-

See Michael L. Moffitt, Disputes As Opportunities to Create

cient to create value.

in T H D R , supra note 141, at 173, 181-84.

Value, R

HE ANDBOOK OF ISPUTE ESOLUTION

214. See Lytle et al., supra note 149, at 44 (citing H.G. L , T D R

ERNER HE ANCE OF

A (1985)).

NGER See Senger, supra note 205, at 248.

215. R

216. See Moffitt, supra note 213, at 176 (arguing that zero-sum models are too R

simplistic to accurately describe the realities of disputes); James K. Sebenius, Inter-

in I N : A , A

national Negotiation Analysis, NTERNATIONAL EGOTIATION NALYSIS P-

, I , supra note 17, at 229, 242 (arguing that such approaches do not R

PROACHES SSUES

manage the tension between creating and claiming value and ignore the large number

of different approaches, tactics, and procedures available to improve the effectiveness

of negotiation).

See Interview with Col. M, supra note 26.

217. R

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Winter 2008] The Soldier and the Sheik 115

Avoid Reciprocating Power-Based Communication

(b)

Executing a negotiation strategy that includes a focus on inter-

ests will not be successful unless the military negotiator also employs

techniques to avoid being drawn into a downward spiral over who has

218

more power. Refusing to reciprocate a threat is often effective, and

it avoids the potentially unproductive downward spiral of power and

rights reciprocity. Competitive or adversarial tactics, particularly ac-

tual or threatened use of force, usually lead to reciprocation with like-

219

kind tactics, conflict spirals, and escalation. Many negotiators

make the mistake of reciprocating as a reaction to rights- and power-

based threats because they fear appearing weak. Research suggests

220

that reciprocating may be instinctive. Yet reciprocation is likely to

be highly unproductive for the U.S. military negotiator and lead to

damaged relationships, grudges, obstruction of the agreement’s exe-

221

cution, or no agreement at all. This does not mean that a U.S.

military negotiator has to concede anything, make unilateral conces-

sions, or show any weakness. By avoiding the trap of a negative con-

flict spiral, the U.S. military negotiator would actually be

222

demonstrating his strength.

(c) Listen and Ask Questions

A simple but effective technique in negotiations is to listen, par-

ticularly for a party’s underlying interests behind their positional de-

mands. By listening to his civilian counterpart and asking questions

to understand what his true interests are, a U.S. military negotiator

can use that knowledge to leverage those interests to structure an

218. See, e.g., Lytle et al., supra note 149, at 43. R

219. See, e.g., Pruitt, supra note 37, at 91; Sebenius, supra note 216, at 230. R

220. See Lytle et al., supra note 149, at 44. R

221. See id. at 39 (noting the prevalence of reciprocation, causing a negative con-

flict spiral that jeopardizes the outcome, may create a new dispute, and leaves a mo-

tive for revenge).

222. Negotiation counterparts who know that soldiers are likely to reciprocate

threats and power-based communication may use threats or extreme demands as a

tactic to derail or hijack the negotiation, obstruct an agreement, or test the U.S. nego-

tiator. The solution is not, as was suggested to a soldier by one trainer at the NTC, to

respond more forcefully, but to avoid reciprocating, maintain one’s negotiation strat-

egy, and redirect the discussion back to potential solutions to the dispute or options

for an agreement. For an example of a positive approach, see Interview with RM,

supra note 36, at 11 (using honesty, friendliness, apology, non-threatening conversa- R

tion over a cigarette to develop relationships and frame negotiations in terms of coun-

terpart’s interests).

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116 Harvard Negotiation Law Review [Vol. 13:67

agreement that achieves his unit’s objective as well as his counter-

parts, and that also cultivates a productive relationship with the ci-

223 One of the officers interviewed noted the importance

vilian leader.

of listening, and another acknowledged that if he had asked more

questions to better understand his counterpart’s motivations, subse-

224

quent negotiations may have been easier.

II. A N T : I L L ?

RMY EGOTIATION RAINING NTEGRATING ESSONS EARNED

The dramatic change over the last three years in the U.S. Army’s

training regime for units preparing to deploy to Iraq highlights two

developing realities. First, civil-military relations and negotiations

have come to play a more substantial role in the daily operations of

U.S. military units in Iraq and Afghanistan. Second, the U.S. mili-

tary has adapted to the mission it has been charged with executing as

that mission has changed from early 2003 until now. That mission

now requires a broader set of skills and competencies that are very

different than those required in traditional combat and for which

soldiers are trained. It has meant that many soldiers and officers

spend a significant amount of their time interacting with civilian

crowds and individuals, especially civilian leaders such as mayors,

sheiks, imams, mullahs, city council members, school superintend-

ents, police chiefs, and other government officials. This section ex-

plores the training that the Army now conducts for units preparing to

deploy to Iraq designed to prepare commanders and soldiers to nego-

225

tiate with Iraqi civilian and military leaders.

223. See Interview with JW, supra note 22, at 25, 27 (volunteering that listening R

was the most important thing he did in negotiations).

See id.

224.

225. This does not include negotiation education offered to higher-level officers at

various leadership schools and courses in the U.S. Army system. The Army War Col-

lege requires a two-day negotiation course for all of its students (usually lieutenant

colonels and colonels) and offers a 30-credit graduate-level negotiation course that is

highly subscribed and popular among the senior officers who attend the Army War

College. The Civil Affairs course at Ft. Bragg includes a negotiation module for of-

ficers specializing in civil affairs. The Foreign Service Institute offers a one-week ne-

gotiation course. Other graduate schools and courses offered by the military

education system undoubtedly offer negotiation education as part of their curriculum.

Finally, a small group of select officers attend civilian professional graduate schools in

which they may take a negotiation course. This negotiation education is distinct from

training, however, which prepares officers more specifically to execute particular mis-

sions. Officer Basic Courses, in which new officers are trained to be leaders in their

specialties, do not include negotiation. Nor is negotiation included in mission-specific

training except to the extent that the combat training centers and individual units

have integrated it into their pre-deployment training. The schools described above

are generally for captains and above who have already finished commanding a com-

pany. Most lower-level officers including platoon and company commanders are,

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Winter 2008] The Soldier and the Sheik 117

Most of the officers interviewed felt that they were not prepared

to negotiate in Iraq, but those who deployed to Iraq most recently

have benefited from the military’s learning and adaptation to the

226 Those officers involved in

new SSTR environment it faces there.

the initial invasion of Iraq who were afterwards tasked with stabiliz-

ing the country and beginning reconstruction were not trained to op-

227 The lessons

erate in an SSTR context or to negotiate with Iraqis.

of past Peace Operations and Stability and Support Operations did

not inform the training for most soldiers deployed to Iraq, although it

228 The Army instead has had to re-learn some of the

was available.

same lessons it learned in previous operations. Still, the Army is

learning from the experience of these units and those deployed since

then. Through its Center for Army Lessons Learned and various

schools and combat training centers, it continues to learn from

soldiers’ experience in Iraq as they conduct a highly complicated

SSTR operation. The recent integration of negotiation training into

the U.S. military’s pre-deployment training regimen is an important

development. Yet, given the frequency and importance of negotiation

in the operations of many U.S. military leaders in Iraq, the negotia-

tion training remains insufficient in a number of respects.

The United States Army National Training Center

A. Due to the U.S. military’s increasing awareness of the impor-

tance of non-lethal operations, including negotiations, the Army’s

therefore, not armed with negotiation education or substantial formal training before

they find themselves having to negotiate in tense and complex situations like the ones

they face in Iraq.

See Interview with TS, supra note 22 and Interview with JV, supra note 22,

226. R

Interviews with JJ, supra note 22, Interview with MM, supra note 22, and Interview R

with CG, supra note 22. R

227. See, e.g., Interview with TS, supra note 22, at 23; see also 2004 CALL R , R

EPORT

supra note 3, at ii. R

228. The Army has studied SSTR-like operations extensively before and has recog-

nized many of the same lessons from those operations as it has observed and in some

See, e.g., S S I ., U.S. A W

cases had to relearn in Iraq. TRATEGIC TUDIES NST RMY AR

C ., W P O (Douglas V. Johnson II, ed., January 1999);

OLL ARRIORS IN EACE PERATIONS

R. M , U.S. A W C ., C -M C P

T

HOMAS OCKAITIS RMY AR OLL IVIL ILITARY OOPERATION IN EACE

O : T C K (2004); U.S. A P & S

PERATIONS HE ASE OF OSOVO RMY EACEKEEPING TABILITY

O I ., supra note 2. However, this has not meant that the military’s R

PERATIONS NST

training has always reflected the missions that soldiers will be asked to execute. See

C . T . & N ’ S P , supra note 2, at 88. In the late 1990s the R

TR FOR ECH AT L ECURITY OLICY

Army considered two divisions to be no longer combat ready because they had been

deployed to peace operations in the Balkans, yet this ignored the skills and experience

that such units developed during those missions – the very skills and experience that

See id.

would have been valuable for all U.S. forces in Iraq in 2003 to the present.

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118 Harvard Negotiation Law Review [Vol. 13:67

combat training centers (CTC’s) have adapted their curriculum to in-

clude a greater emphasis on such civil-military interactions. Combat

training centers provide simulated combat training and prepare

units for deployment to Iraq and Afghanistan. The CTC’s primarily

rely on simulation exercises that provide the unit-in-training with ex-

perience facing the same types of tactical problems and challenges

they might face during their upcoming mission overseas. This paper

focuses on the training conducted by the U.S. Army’s National Train-

229

ing Center at Fort Irwin in California.

Until just 2 years ago, the NTC focused on training units for

230

high-intensity conflict using brigade-sized simulated tank battles.

The CTC’s began changing their curriculum in the wake of Operation

Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF-Af-

ghanistan) to respond to the realities that U.S. troops were facing in

those two operations. Training evolved as it became clear that the

U.S. military would be engaged in Iraq for an extended period of time

and the nature of the mission changed from invasion and quick tran-

sition to a long-term security, stabilization, transition, and recon-

231

struction operation in the midst of an insurgency.

The NTC has an 800-member Operations Group responsible for

conducting training classes, planning and designing simulation exer-

cises and – during the exercises – observing, coaching, mentoring,

and evaluating. After each engagement with insurgents or civilians,

these trainers provide informal coaching and feedback in After Action

Reviews (AAR). At the end of the exercises, they provide formal

229. By one account, one third of the U.S. troops currently deployed to Iraq

See Dexter Filkins & John F. Burns, Mock Iraqi Villages in

trained at the NTC. N.Y. T , May 1, 2006, at A1. The NTC is the

Mojave Prepare Troops for Battle, IMES

largest of the U.S. Army’s three major CTC’s and the only accredited joint military

training facility. The other two CTC’s are the Joint Readiness Training Center at Fort

Polk, Alabama (JRTC), and the Joint Multinational Readiness Center in Hohenfels,

Germany (JMRC). Although the paper does not explore training conducted by the

U.S. Marines and is focused on the training conducted by the largest of the Army’s

major combat training centers, the description provides a representative picture of

how soldiers who will inevitably find themselves negotiating with Iraqi civilian lead-

ers are trained for just such a new and manifestly different mission. The NTC has

trained active duty Army, National Guard, and Marine units for deployment to Iraq.

230. Information in this section about the NTC was provided by author’s notes

from a Command Briefingat the United States Army National Training Center, Major

Keith Jarolimek, Secretary of the General Staff, Command Briefing at National

Training Center, United States Army (February 28, 2006) [hereinafter Jarolimek,

Command Briefing]; Interview with Major John Clearwater, U.S. Army Nat’l Train-

ing Ctr., Fort Irwin, Cal. (February 28, 2006).

231. For additional description of the evolution of the Army’s training, with partic-

ular emphasis on the National Training Center and focus on counterinsurgency train-

supra note 229.

ing, see Filkins & Burns, R

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Winter 2008] The Soldier and the Sheik 119

AARs to the unit and its leaders. Trainers visit Iraq and Afghanistan

on missions to gather best practices, understand emerging chal-

lenges, and procure more information about problems faced by troops

in theater. Eighty-five percent of the NTC’s trainers are combat vet-

erans who served tours in Iraq or Afghanistan. They integrate new

lessons and information, as well as their personal experience, into the

training. They also integrate lessons learned from the U.S. Army’s

Center for Lessons Learned.

Army units that train at the NTC spend three weeks at the base,

the first of which includes a three-hour negotiation and cultural

232 The live simula-

training for commanders and their staff officers.

tion exercises occupy the entire second and third weeks of training.

The unit deploys into the desert of the NTC charged with accomplish-

ing a mission and operating as if it were in Iraq. Situated in the mid-

dle of the Mojave Desert, the NTC has twelve mock Iraqi villages, an

Islamic shrine, cave complexes, and 1,600 role players representing

Iraqi civilians and insurgents. 250 of the role players are Iraqi na-

tionals, most of whom speak fluent Arabic. These Iraqis play the

most important 127 of 2,200 distinct roles available, each of which

has a personal background and history, job, residence, as well as fa-

milial and social relationships and associations with other role play-

ers. The 127 key roles represent the mayors, sheiks, town council

members, imams, and police chiefs.

Negotiations take place throughout the two-week, live exercise.

Junior officers or squad leaders frequently interact with mayors or

sheiks. Battalion commanders or the Brigade commander also meet

with the mayors and sheiks individually or as a group. Negotiation

is, as one leader at the NTC said, a bridge between kinetic and non-

kinetic operations: failed negotiations may turn non-kinetic opera-

233 This was demonstrated starkly in one ne-

tions into kinetic ones. 234

gotiation I observed during a recent NTC training rotation.

After a surprise suicide bomb attack on his unit, a company com-

mander negotiated with the mayor of a village over the custody of

232. This negotiation training is detailed below.

233. See Jarolimek, Command Briefing, supra note 230. “Kinetic” refers to lethal R

or potentially lethal operations involving live fire and application of force. “Non-ki-

netic” refers to non-lethal operations.

234. The author visited the NTC between February 27, 2006 and March 2, 2006

and observed the 3d Stryker Brigade Combat Team, 2d Infantry Division from Fort

Lewis, Washington during the last few days of its two week live exercise. The unit

deployed to Iraq (for the second time) in the summer of 2006.

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120 Harvard Negotiation Law Review [Vol. 13:67

235

four detainees accused by the officer of participating in the attack.

The captain asked for the mayor’s cooperation. The mayor and police

chief, standing in the doorway of the jail, would not allow the U.S.

soldiers into the jail to take custody of the prisoners. Noting that he

wanted to cooperate, the mayor claimed the detained men were not

guilty. The captain stated that “cooperation would be to move out of

the way.” Still at an impasse, the captain called back to his base for

permission to take the prisoners by force. He continued to negotiate

with the mayor, without threatening the prisoners’ forceful removal.

The mayor offered to let him take one of the four prisoners, under his

formal protest and as a sign of his cooperation with the captain and

battalion commander. This compromise was accepted. As the

soldiers were preparing to take the prisoner, the town was shelled

with insurgent mortar fire.

This negotiation – which took place in a simulated environment

but was neither staged nor scripted – demonstrates the unique, chal-

lenging environment in which the U.S. military negotiates with civil-

ians in operations like Iraq. Violence and the threat and fear of

violence often exist in the background of negotiations. The entire

event was precipitated by a suicide bomber. It ended with mortar

fire. Yet, in this situation, negotiation was the best solution for both

the Americans and the mayor, and despite the option of using force,

the captain found a way to avoid it through continued negotiation.

The unit did not destroy its vital relationship with the town’s mayor,

and the mayor could say to the battalion that he cooperated, while

saying to his constituents that he did not give in to all of the officer’s

demands. The captain deployed to Iraq with experience trying to ne-

gotiate under these difficult circumstances.

The NTC’s Negotiation Training

B. This section describes the NTC’s negotiation training and the

process and system it teaches U.S. military commanders, their staff

officers, and subordinates to use when negotiating with civilian lead-

236 The training begins with an approximately half-hour

ers in Iraq.

235. Negotiation observed by the author on February 28, 2006 at “Medina Wazul,”

a mock Iraqi town at the NTC.

236. The training curriculum at the NTC was designed by the NTC’s lead negotia-

tion trainer, Major Jonathan Velishka, using negotiation training material developed

originally by the JRTC in cooperation with subject matter experts and combining it

with his personal experience in Iraq, as well as cultural expertise provided by the

Defense Language Institute. It was described by Major Velishka, United States

Army, National Training Center, Fort Irwin, California.

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Winter 2008] The Soldier and the Sheik 121

session on cultural awareness designed to complement the negotia-

tion training and delivered by instructors from the Defense Language

Institute. It includes an overview of the cultural norms, differences,

and factors that soldiers should take into account when negotiating

in Iraq. This is followed by an approximately half-hour presentation

on negotiating.

Preparation

1.

Preparation is the cornerstone of the NTC’s negotiation training.

The system of preparation it teaches for negotiations is an adapted

version of the military decision-making process (MDMP), which re-

quires commanders to take all relevant factors into account, war-

game potential alternative outcomes, and make decisions and judg-

ment calls based on that analysis. It tracks the standard mission

preparation and analysis used by the U.S. Army to prepare for any

tactical engagement. This, by design, is meant to account for conflict-

ing priorities and tension between immediate objectives and long-

term ones. Done properly, it will include all relevant interests and

priorities, information about and dynamics of the area, and potential

237 The commander and staff

strategies, alternatives, and options.

war-game the negotiation beforehand, analyzing what courses of ac-

tion the commander is willing to take to meet his objectives. The

commander will then be prepared to make informed judgments in the

negotiation based on overall objectives for his mission in that area.

To support this preparation the NTC provides and teaches of-

ficers to use its “Leader Preparation Sheet” when preparing for nego-

238

tiations in Iraq. A completed sheet is the product of an integrated

staff process in which members of the battalion or brigade com-

mander’s staff fill in the parts of the sheet relevant to their area of

responsibility. The preparation sheet provides a framework for a

comprehensive mission analysis by demanding a thorough under-

standing of the local economy and industry, religious and tribal dy-

namics, educational institutions, civil law enforcement, former

military regime elements, and government and civic institutions in

the commander’s area of responsibility. This includes a cultural and

237. For example, a common tension faced by U.S. military negotiators is the fre-

quent conflict between the immediate objectives or task and the long-term objective of

cultivating and maintaining positive, productive working relationships with Iraqi

counterparts which are necessary to accomplish the U.S. military’s long term mission

objectives.

238. Blank Leader Preparation Sheet, U.S. Army National Training Ctr., Fort Ir-

win, Cal. (courtesy of Major Jonathan Velishka, Lead Cultural Awareness & Negotia-

tion Trainer, on file with author).

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122 Harvard Negotiation Law Review [Vol. 13:67

239 The sheet requires

ethnoreligious analysis of the particular area.

staff officers to develop and fill in a negotiation strategy, information

operation themes, mission intent, talking points, sequence of events

in the negotiation, possible impasse issues, offers, negotiation points,

240

exit strategy, and the promises made at the last meeting.

The NTC teaches that the preparation sheet should stimulate

thinking about a negotiation strategy, an agenda, and the potential

directions the negotiation could take, including things that could de-

rail it. The NTC’s lead negotiations trainer notes that the overall

strategy and preparation should suit the officer who will be con-

ducting the negotiation, and the process requires commanders and

their staffs to identify intended outcomes that are suitable and feasi-

ble. The NTC training emphasizes that every meeting with a civilian

241 The premise of the

leader should have an intended outcome.

NTC’s preparation system is that a commander, armed with all of the

relevant information and focused on his intended outcome, has every-

thing he needs to negotiate successfully. This is an assumption that

will be challenged below.

Tracking Promises

2.

The NTC’s negotiation training also focuses on the promises that

soldiers make to civilian leaders, because of the importance that

keeping promises has on credibility. The NTC teaches soldiers to

track carefully all promises or perceived promises they make in any

negotiation. During the two-week, live exercise, NTC trainers copy

every promise made by a unit and its officers or squad leaders. The

unit is evaluated on how many of those promises it kept. The NTC

teaches that promises kept are a powerful negotiating tool because a

U.S. military negotiator can remind his Iraqi counterpart about the

promises that his unit has kept – for instance, the schools built, wells

242

dug, joint U.S.-Iraqi patrols conducted.

Perceived promises are a particular challenge. The NTC’s train-

ing instructs officers to finish every negotiation with an explicit re-

view of commitments, in order to clarify what was promised as well

239. It is a central emphasis of the training that to be effective at negotiating both

particular issues and over the long-term, the U.S. military officers and their soldiers

cannot rely on basic cultural awareness – the do’s and don’t’s – but must understand

intimately their area of operations. It is, as the NTC’s lead negotiation trainer said,

supra note 170, at

“all about homework.” Interview with Major Jonathan Velishka, R

20. supra note 238.

240. Blank Leader Preparation Sheet, R

241. See Interview with Major Jonathan Velishka, supra note 171, at 13-15. R

242. Id. at 24.


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DESCRIZIONE DISPENSA

Dispensa al corso di Teorie dei conflitti e processi di pace della Prof.ssa Maria Luisa Maniscalco. Trattasi del saggio di David M. Tressler dal titolo "The Soldier and the Sheik: Lessons from Negotiating in Iraq" all'interno della quale è analizzato il processo di mediazione attuato durante l'occupazione americana dell'Iraq.


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Corso di laurea: Corso di laurea magistrale in relazioni internazionali
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A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Teorie dei conflitti e processi di pace e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Roma Tre - Uniroma3 o del prof Maniscalco Maria Luisa.

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