The End of Reciprocity: Terror, Torture, and the Law of War
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Seumas Miller, Mark Osiel: The End of Reciprocity: Terror, Torture and the Law of War - PhilPapers
Cite this Email this Add to favourites Print this page. Catalogue Persistent Identifier https: You must be logged in to Tag Records. Reciprocity in the law of war: Rawlsian reciprocity Fairness in terrorist war 2: Kantian reciprocity Humanitarian law as corrective justice: In the Library Request this item to view in the Library's reading rooms using your library card. Details Collect From YY There are clear limits to the logic of reciprocity, whether motivated by prudential concerns or as a principle intrinsic to the notion of retributive or simply formal justice. Please see, first, Crimes Against Humanity: Aggression and Crimes Against Peace .
The provisions contained in the Regulations referred to in Article 1 [the annex of 56 articles regulating war on land], as well as in the present Convention, do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention. The signatories did not bind themselves to abide by the convention absolutely, but only in wars where all belligerents had also bound themselves to follow the convention. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:. To gain the protection of the Convention, militias had to abide by the Convention.
You are certainly correct that criminal law is not based on reciprocity, but this is because the criminal and society are not on the same moral plane. All belligerents are on equal footing.
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Again, I do not deny that the spirit of the conventions expresses a fundamental moral sense about the proper limits of conduct in war. But letter of the conventions is based on reciprocity. The contingent morality protects the fundamental morality. No, it is not ideal, but men are not angels.
And, by endeavoring to put practical self-interest on the side of virtue, the drafters were recognizing the realities of history and human nature. So again I ask, by choosing to create rules that did not apply in the absence of reciprocity, were the original drafters and signatories acting like Nazis? Regarding the Martens Clause, it is interesting to note that its vagueness is a result of a compromise between the large and small powers over whether francs tireurs should be considered lawful combatants and given the same protections as prisoners of war.
When push came to shove at Nuremberg, the allies gave them no protection, acquitting Wilhelm List:. It shows further that they remained occupied during the period that List was Armed Forces Commander Southeast. It is clear from the record also that the guerrillas participating in the incidents shown by the evidence during this period were not entitled to be classed as lawful belligerents within the rules herein before announced.
We agree, therefore, with the contention of the defendant List that the guerrilla fighters with which he contended were not lawful belligerents entitling them to prisoner of war status upon capture. We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans in Yugoslavia and Greece during the time he was Armed Forces Commander Southeast.
I point these things out not to attempt to justify any and all treatment of unlawful combatants, or to say that the demands of morality are exhausted when reciprocity ceases. But I do think that law has only a limited ability to constrain human action. And if its dictates diverge too far from practical reality, it loses the respect of men of action that is more than half its power.
To point out the differences in the hopes for the law of war between and today is demonstrate how much more idealistic or civilized — one or the other — we have become. The problem with your argument is that the detailed provisions under Common Article 2 are complimentary to Common Article 3 and Hague IV , both of which express customary law applicable to all parties in an armed conflict regardless of treaty status. War is not an excuse for behaving like animals, and we have ample evidence of where such behavior leads.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:. As for the Nazis, see:.
Such violations shall include, but not be limited to, murder, ill-treatment, or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;.
As heretofore stated, the Charter does not define as a separate crime any conspiracy except the one set out in Article 6 a , dealing with Crimes against Peace. The Tribunal is of course bound by the Charter, in the definition which it gives both of War Crimes and Crimes against Humanity. With respect to War Crimes, however, as has already been pointed out, the crimes defined by Article 6, section b of the Charter were already recognized as War Crimes under international law.
They were covered by Articles 46, 50, 52, and 56 of the Hague Convention of , and Articles 2, 3, 4, 46, and 51 of the Geneva Convention of That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument. In the opinion of the Tribunal it is not necessary to decide this question.
The rules of land warfare expressed in the convention undoubtedly represented an advance over existing international law at the time of their adoption. A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were part of Germany.
In the view of the Tribunal it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them.
With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic.
The policy of persecution, repression and murder of civilians in Germany before the war of , who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they-were done in execution of, or in connection with, any such crime.
Mark Osiel, The End of Reciprocity
The Tribunal therefore cannot make a general declaration that the acts before were Crimes against Humanity within the meaning of the Charter, but from the beginning of the war in war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.
Cheney and Addington have floated all the same excuses, and they have committed all the same crimes with the single exception of genocide. The case is not in doubt, and what is at stake is the honor, institutional integrity, and public safety of the United States. These people must be prosecuted and punished for their crimes. The law is just a game they paly for profit and prestige, a set of tools they manipulate to get what they want regardless of the effects on other people.
The facts here are simply indisputable. The invasion of Iraq was a crime against peace in exactly the way the Nazi invasion of Poland was. The unlawful detentions, kidnappings, systematic abuse, torture, kangaroo courts, and deprivation of due process was criminal from from the start, and I had proof positive of the crimes as early as February of The only way anyone can claim these people are not criminals is to ignore the objective evidence or lie. That said, I certainly think Roger Alford has great deal more integrity than a Julian Ku, but self-deception is one of the most insidious forms of dishonesty.
I get accused of all sorts of things because the only way the folks on the other side can deal with my critique is to slander me, but the reality is very simple:. Rules of conduct for belligerents in their mutual relations is a statement of, if anything, reciprocity. Try reading what it actually says, there is no ambiguity:. I mean just exactly what are you trying to prove anyway? What is that you want to do?
And according to John Yoo that would all be perfectly legal. And do YOU really agree with him?? I think it may be helpful here to try to limit the scope of the disagreement. I do not contest and have not contested that the motivating spirit of the conventions, both in and in , was a humanitarian impulse not conditioned on reciprocity. Had there been no fundamental moral judgment at stake, there would never have been a Hague conference to begin with.
The Geneva Conventions, in Common Article 3, do indeed dispense with the principle of reciprocity, but this was recognized as an innovation. Here is a passage from the Red Cross commentary on Common Article 3, usually considered authoritative:. Until recently it would have been considered impossible in law for an international Convention to bind a non-signatory Party — a Party, moreover, which was not yet in existence and which need not even represent a legal entity capable of undertaking international obligations. It had not been thought possible to conclude an agreement without reciprocal undertakings and such undertakings would imply that the contracting parties were already in existence.
As we have seen, however, the present Convention no longer includes a reciprocity clause. This great step forward cleared the way for the provisions of Article 3, although, it is true, it is offset by the fact that it is no longer the Convention as a whole which will be applicable, but only the provisions of Article 3 itself. Moveover, Geneva itself did not entirely dispense with reciprocity, for in addition to the reciprocal provisions of CA2, article 4 of the third Geneva convention extends prisoner of war status to captured members of resistance groups if and only if they abide by certain provisions:.
As to the Hague preamble and the Martens Clause you quote, it is significant to note, as I did above, that in the very case the clause was composed to cover — armed resistance by nationals in conquered territory — the Nuremberg tribunal saw fit to countenance the execution of captured fighters. I do not think it particularly strong ground on which to claim there never was such a thing as reciprocity. In any case, my point is a limited one. The principle of reciprocity in the law of war exists.
The Hague conventions expressly employ it. The Geneva conventions dispense with it in CA3 but retain it in other contexts. The proper scope and role of reciprocity in the conflicts we face today is a legitimate matter of discussion — not ipso facto evidence of moral Nazism. But I have to say this right now: Show me where reciprocity enters into it. Addington and Yoo are uncomplicated serial killers, and reciprocity has nothing to do with anything other than being useful for sowing confusion and fabricating fraudulent alibis for their crimes.
The elements of a crime are what they are: Now we are just talking past each other. I have not in this thread undertaken to defend the legality of the detainee policy in the GWOT. My purpose was different and more narrow: Stipulating for the purposes of this thread that Geneva is a closed box wherein a detainee can either be a privileged combatant prisoner of war or else a civilian, there is still a required reciprocity. In order to be a privileged combatant under Geneva, one must abide by the four conditions named in the Convention.
Failing that, one is subject to criminal law for acts that would otherwise be permissible acts of war.
A legal combatant can lob mortars at an enemy military position without liability; an illegal combatant cannot do the same. In order to gain the protection of the convention, one must abide by the convention. Now, the push in more recent times has been to accord the privileges of combatants to members of armed movements which do not abide by the conventions and have no respect for the customs of war. The general and final adoption of such measures would truly mean the end of reciprocity.
- La economía explicada a Zapatero y a sus sucesores (Spanish Edition).
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Moreover, my other contentions still stand. The specific provisions of the Hague IV were, at least as drafted and at its signing, binding only in cases of war between signatories. The Geneva Conventions of continue the principle of reciprocity in CA2, dispensing with it only in CA3 — which the Red Cross commentaries make clear was considered an innovation — and in order to obligate a signatory under Geneva to accord you protection for acts of war, you have to abide by the conditions Geneva sets forth for lawful combatants.
Unless you are willing to say that the drafters and signatories of all those provisions were moral Nazis, you have to acknowledge that discussing the proper scope of the principle of reciprocity is morally within bounds. But please explaind how my reasoning is circular? You may not agree with the principle of reciprocity. Pretty much everyone who disagrees with him is branded a nazi, war criminal, or murderer.
Perhaps worse, he frequently includes his fetishes like rape and cannibalism. And in the here and now, the law is what it is. The crimes have been committed in the here and now, the laws are on the books. The only real problem is that so many of the federal officials responsible for enforcing the laws are in fact CRIMINALS engaged in committing, aiding, and abetting the crimes.
- Mark Osiel, The End of Reciprocity: Terror, Torture, and the Law of War..
- Face Off.
The protections are different in detail, but the Bush policies are in violation of them either way. See my blog post on The Geneva Order. Now we really are talking past each other, so this will be my last post. My purpose in this thread was not to invoke reciprocity as a defense of the Bush administration detainee policies and the legal justifications thereof.
My whole purpose, the entirety of it, was to say that the principle of reciprocity exists and that its proper scope may be debated without succuming to moral Nazism, per Mr. The principle of reciprocity in was that the detailed provisions of the Hague covention only applied in the case of war between the contracting powers.