Practice Relating to Rule 140. The Principle of Reciprocity
The Military Manual (1993) of the Netherlands states: “The rules of the law of war must be respected. They must be respected under all circumstances. This means that respect must not be made conditional on the behaviour of the adverse party. In other words: reciprocity may not be used as a measure for respect.”
The Military Manual (2005) of the Netherlands states:
0233. Compliance under all circumstances
The rules of the humanitarian law of war must be obeyed in all circumstances. Some of the implications of this are:
b. that reciprocity is not a ground for breaking rules.
The degree of compliance must also not be made conditional on the opposing party’s method of action. In other words, reciprocity of compliance cannot be taken as the yardstick.
In its chapter on the prevention and punishment of war crimes, the manual states:
The rules of the humanitarian law of war must be applied in an armed conflict under all circumstances. This means specifically that compliance may not be made conditional upon how the adverse party acts. In other words: reciprocity may not be taken as a yardstick for compliance.
In the Rauter case
in 1948, a Special Court in the Netherlands rejected the argument of the defence that the Dutch government in exile and the Dutch population had themselves, previously to the committing of the acts by the accused, violated the laws and customs of war and had thereby relieved the accused of the obligation to abide by such laws and rules.
On appeal by the accused, the Special Court of Cassation, in the relevant parts, confirmed the judgment of the trial of first instance and again rejected the defence, which had repeated its plea that the German Reich, and the accused as its executive organ, were relieved of the obligation of abiding by the laws and customs of war and were entitled to commit the acts because they were directed – as “reprisals” – against the Dutch civilian population by individuals of which, previously to the taking of the acts by the accused, violations of the laws of war would have been committed.