UBC Theses and Dissertations
Expectations of reciprocity in the law of armed conflict Peeler, Bryan
The expectation of reciprocity has a long history in international law generally and the law of armed conflict in particular. When negotiating international agreements states often include provisions allowing for negative in-kind responses as remedies for violations of treaty obligations. Historically, this kind of reciprocity has been central to the law of armed conflict. According to some, though, the purpose of the law of armed conflict has changed. Instead of a tool protecting the interests of states involved in armed conflict, the purpose of the law is now to limit the suffering of those caught in war-zones; both combatants and non-combatants alike. Under this conception, the expectation of reciprocity has no role to play when states consider their legal obligations towards their opponents in an armed conflict. Contrary to this view, I argue that an expectation of reciprocity continues to be an important factor when states consider their law of armed conflict obligations. First, by taking a more nuanced view of reciprocity than just negative in-kind responses, I show how expectations of reciprocity still exist within the law of armed conflict. Second, using Hart’s understanding of law as the union of primary and secondary rules, I demonstrate how states have preserved the expectation of reciprocity – both within the law as a secondary rule and beyond the law as a policy option – to respond in the face of continued non-compliance with law of armed conflict obligations by an opponent. Lastly, by taking the multi-actor setting of state decision-making seriously, I show how these more nuanced forms of reciprocity make themselves felt in debates about law of armed conflict obligations. The case studies of this dissertation concentrate on the Geneva Conventions and the Protocols Additional to the Geneva Conventions. The first case study illustrates the many places where the law maintains expectations of reciprocity. The final two cases examine US policy regarding Prisoner of War obligations in the Vietnam War and the Global War on Terror to show how states make use of the more nuanced forms of reciprocity in these secondary rules in response to continued non-compliance by an enemy.
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