I argue in this chapter that the negotiations surrounding both the Geneva Conventions and the Protocols Additional to the Geneva Conventions demonstrate that the expectation of reciprocity still exists within IHL, despite significant concessions towards humanitarianism. This chapter proceeds in four parts. In the first section, I give a brief history of IHL and highlight the role historically played by expectations of reciprocity within the regime. In sections two, three and four I examine the negotiations that took place at the Diplomatic Conferences of 1949 and 1974–7 that updated Geneva law. Each section demonstrates how, despite the willingness of states to extend the protections of IHL regulations to more armed conflicts and individuals, they were only willing to do so given the expectation of a reciprocal commitment – both de jure and de facto – to comply with the law. I conclude with some remarks about what the history of these negotiations demonstrates about the continued role played by expectations of reciprocity in the POW regime, given that this is the central focus of the subsequent two chapters.

This chapter argues that what appears to be a break in the US policy towards its GC III obligations is really a change in emphasis from positive reciprocity to negative reciprocity. The multi-actor setting of US policy decision making made such a change possible. The chapter begins by examining the period from the end of the Vietnam War through to the USA-led NATO bombing campaign against Yugoslavia. It demonstrates how a split emerged, one that had not existed previously, between US policy makers and the military in attitudes towards reciprocity and IHL obligations. It then analyzes three key decisions: (i) to use military commissions to try detainees for IHL violations, (ii) to deny POW status to detainees, and (iii) to use “enhanced interrogations techniques” when questioning detainees. It argues that logic of appropriateness explanations cannot fully explain US policy decisions towards the treatment of detainees in the GWOT. In each of the three policy decisions examined, concerns with specific negative reciprocity are necessary to understand fully the US decision not to apply GC III.

This chapter explores why the USA decided to apply the Geneva Conventions during the Vietnam War. In particular, it examines the US decisions to treat North Vietnamese and Viet Cong detainees as POWs and to investigate war crimes committed by US forces. It begins by providing some historical background regarding US attitudes to perennial defection from IHL obligations and argues that US policy makers and the military were united in their views that the USA was not obliged to apply the Conventions in such cases. It then demonstrates that logic of appropriateness explanations nevertheless do not fully account for the US decision to apply the Conventions. Instead, concerns about positive reciprocity played a crucial role in persuading US decision makers to apply the Geneva Conventions. These concerns were central to US decisions to apply GC III to North Vietnamese and Viet Cong detainees and to investigate alleged US war crimes. In this case, the USA relied on positive reciprocity because it viewed the North Vietnamese and Viet Cong as potential partners in a relation of specific reciprocity.

This concluding chapter is intended to accomplish two goals. First, I will summarize and compare the findings of the three case studies. Second, I will consider what effect policies of the current Trump administration may have on US compliance with its IHL obligations going forward.

This chapter serves three main purposes. First, it outlines the book’s central argument for why the expectation of reciprocity continues to be an important consideration for states when they decide how to respond to violations of IHL. Second, it describes the methodology used to analyze the role played by such expectations in the decision making of states regarding their IHL obligations. Finally, it provides an overview of the remainder of the book.

This chapter lays the theoretical groundwork for the argument. In the first section, I outline the legal regime governing armed conflict. The second section provides an initial definition of reciprocity and reviews two literatures explaining its importance to compliance with international legal regimes such as IHL. In section three, I outline what I am calling the “humanization of humanitarian law” thesis. This is the view that states are and can be expected to implement IHL obligations even if their adversaries do not. In section four, I present a more nuanced view of reciprocity. I demonstrate, via H. L. A. Hart’s theory of law as the union of primary and secondary rules, how states have maintained reciprocal strategies for dealing with IHL non-compliance through secondary rules. I then explain how the domestic, multi-actor setting of state decision making allows policy makers to use these secondary rules to respond to IHL non-compliance. In the last section, I examine logic of appropriateness theories found in the international relations and international law literatures that could serve as a basis for the humanization of humanitarian law thesis.