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Unpublished Paper
Reciprocity and the Law of War
ExpressO (2009)
  • Sean Watts, Creighton University
Abstract
This article offers a detailed examination of how the principle of reciprocity operates within the international law of war. Tracing the historical development and application of the law, the article demonstrates that the existing law of war is best characterized as a reciprocity-contingent set of rules, limited in application to peer competitors. The article identifies first an obligational component of reciprocity, restricting operation of the law to contests between parties with parallel legal commitments. Second, the article identifies an observational component to the principle of reciprocity, permitting parties to suspend or terminate observance when confronted with breaches of the law. The article concedes evidence of a softening of the principle in some late twentieth century legal instruments, however ultimately argues that reciprocity continues to form a critical structural component of the law of war that guides argument in both theoretical discourse and in considerations of highly pragmatic interests. The article’s reciprocity-cognizant framework for understanding the law of war will serve as a useful platform for efforts to reform or update the law of war. A follow-up article will leverage the instant framework to discuss normative considerations including the extent to which current legal vestiges of reciprocity either complement or distract from notions of how and why modern war is waged.
Keywords
  • reciprocity,
  • law of war,
  • international humanitarian law,
  • law of armed conflict,
  • military law
Disciplines
Publication Date
Summer 2009
Citation Information
Sean Watts. "Reciprocity and the Law of War" ExpressO (2009)
Available at: http://works.bepress.com/sean_watts/1/