Reciprocity and International Humanitarian Law

The chapter aims to answer the question on the role of reciprocity in international humanitarian law at the level of its creation, its application and its respect. It discusses the evolution of treaty and customary law in the area of international humanitarian law and disarmament law (humanitarian aspects). The chapter mirrors the traditional division of conflicts into international and non-international ones in order to clearly indicate main (and still significant) differences. It makes a clear distinction between, on the one hand, reciprocity as the principle guiding the applicability of particular norms to a particular conflict (reciprocal commitments) and reciprocity as the principle guaranteeing respect for international humanitarian law (reciprocal observance) on the other hand. The distinction between negative reciprocity (legal factor) and positive reciprocity (non-legal factor), as well as their meaning in nowadays conflicts, is presented. The chapter argues that reciprocity has lost its significance in the creation and application of international humanitarian law, and that its role is definitely diminished in terms of the obligation to respect it (despite very limited remnants of reciprocity—e.g., in the case of prisoner of war/combatant or protected person status, discussed in detail). The disconnection between reciprocity and obligation to apply and comply with international humanitarian law is a logical consequence of the development of international humanitarian law as a branch of law created for the sake of protection of people and not of their States. It is a consequence of the impact of human rights law and of international criminal law on the interpretation of international humanitarian law norms and the way they are enforced—today also before human rights and criminal courts. The recent tendencies to reinvigorate reciprocity only prove that there is no return to reciprocity in the system where the individual life and dignity is protected by international law; this would be against the (common) interest of the international community. This, in turn, will indirectly respond to the central question of this volume: whether reciprocity can be said to be a metalegal principle or whether it has been supplanted by other considerations.