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Expectations of Reciprocity in the Law of Armed Conflict

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Expectations of Reciprocity in the Law of Armed Conflict EXPECTATIONS OF RECIPROCITY IN THE LAW OF ARMED CONFLICT by Bryan Peeler B.A., The University of Manitoba, 1991 M.A., The University of Manitoba, 2008 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (POLITICAL SCIENCE) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) August 2016 © Bryan Peeler, 2016 Abstract 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 ii 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. iii Preface This dissertation is an original intellectual product of the author, Bryan Peeler. The fieldwork reported in chapters 3-5 was covered by the University of British Columbia’s Behavioral Ethics Board (BREB) certificate H12-03608 and the University of Manitoba’s Joint-Faculty Research Ethics Board (JFREB) Protocol #J2013:030. An earlier version of Chapter 3 was presented as “Why Reciprocity Matters: States and the Law of Armed Conflict,” to the Junior Scholar Symposium Group, Human Rights Norms: From International Law to Practice, at the Annual Convention of the International Studies Association, 4 April 2013. An earlier version of Chapter 5 was presented to the International Relations Colloquium of the Political Science Department at the University of British Columbia, 31 March 2014. An earlier version of Chapter 6 was presented as “Towards a Research Agenda on Non-Party States and International Law,” to the panel Assessing the Impact of International Law on Non-Parties, at the Annual Convention of the International Studies Association, 18 February 2015. iv Table of Contents Abstract .................................................................................................................................... ii Preface ..................................................................................................................................... iv Table of Contents .....................................................................................................................v List of Tables ........................................................................................................................ viii List of Figures ......................................................................................................................... ix List of Abbreviations ...............................................................................................................x Acknowledgements ................................................................................................................ xi Dedication .............................................................................................................................. xii Chapter 1: Introduction ..........................................................................................................1 1.1 Reciprocity and the LOAC ....................................................................................... 3 1.1.1 A More Nuanced View of Reciprocity ................................................................. 3 1.1.2 Beyond Codified Law: Reciprocity in Practice .................................................... 5 1.3 Structure of Dissertation ......................................................................................... 13 Chapter 2: Reciprocity and Compliance with the LOAC ..................................................15 2.1 The LOAC: Rules Governing the Conduct of Hostilities ....................................... 16 2.2 Reciprocity and the LOAC ..................................................................................... 24 2.2.1 Reciprocity: An Initial Definition ....................................................................... 25 2.2.2 Neoliberal Institutionalism and Reciprocity ....................................................... 26 2.2.3 The Original Position and Reciprocity ............................................................... 31 2.3 The Humanization of Humanitarian Law ............................................................... 35 2.4 Preserving Expectations of Reciprocity within the LOAC ..................................... 40 v 2.4.1 A More Nuanced Version of Specific Reciprocity ............................................. 40 2.4.2 Hart, Secondary Rules, and Specific Reciprocity ............................................... 43 2.4.3 The Domestic Multi-Actor Setting ..................................................................... 48 2.5 Alternative Mechanisms for Gaining Compliance with the LOAC ........................ 51 2.5.1 Legal Process and Compliance with the LOAC ................................................. 53 2.5.2 The Compliance Pull of the LOAC .................................................................... 57 2.5.3 Identity and Compliance with the LOAC ........................................................... 60 2.6 Conclusion .............................................................................................................. 63 Chapter 3: Reciprocity and the Updating of the Geneva Conventions .............................66 3.1 The Expectation of Reciprocity and the LOAC Prior the Second World War ....... 67 3.2 The Application of the Geneva Conventions and Additional Protocols ................. 80 3.3 Reciprocity and the Treatment of POWs ................................................................ 95 3.4 Reciprocity and the Treatment of Civilians .......................................................... 104 3.5 Conclusion ............................................................................................................ 109 Chapter 4: The Expectation of Reciprocity and the War in Vietnam ............................111 4.1 US and Compliance with the LOAC Prior to the Vietnam War ........................... 112 4.2 The Decision to Apply the Geneva Conventions to the War in Vietnam ............. 118 4.2.1 The Logic of Appropriateness and Applying the Geneva Conventions ........... 118 4.2.2 Reciprocity and the Decision to Apply the Geneva Conventions ..................... 121 4.3 The POW Status of Detainees ............................................................................... 124 4.3.1 The Logic of Appropriateness and the POW Status of Detainees .................... 125 4.3.2 Reciprocity and the POW Status of Detainees ................................................. 129 4.4 War Crimes ........................................................................................................... 135 vi 4.4.1 The Logic of Appropriateness and War Crimes ............................................... 135 4.4.2 Reciprocity and War Crimes ............................................................................. 137 4.5 Conclusion ............................................................................................................ 150 Chapter 5: The Expectation of Reciprocity and the GWOT ...........................................152 5.1 The US and LOAC Obligations: Vietnam to Yugoslavia ..................................... 153 5.2 The Use of Military Commissions to Try Detainees ............................................ 160 5.2.1 The Logic of Appropriateness and Military Commissions ............................... 161 5.2.2 Reciprocity and Military Commissions ............................................................ 167 5.3 The POW Status of Detainees ..............................................................................
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