Geneva Conventions (1949)
Common Article 1 of the 1949 Geneva Conventions requires parties to respect the provisions of the Conventions “in all circumstances”.
Geneva Conventions (1949)
Common Article 2(3) of the 1949 Geneva Conventions provides:
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
Vienna Convention on the Law of Treaties
Article 60(5) of the 1969 Vienna Convention on the Law of Treaties states:
Paragraphs 1 to 3 [laying down the principle of reciprocity] do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.
Additional Protocol I
Article 1(1) of the 1977 Additional Protocol I requires parties to respect the provisions of the Protocol “in all circumstances”.
Australia’s Commanders’ Guide (1994) and Defence Force Manual (1994) note: “The ADF [Australian Defence Force’s] obligation to comply with LOAC is not conditional upon an enemy’s compliance; unilateral compliance by the ADF is required.”
Australia’s LOAC Manual (2006) states: “The ADF [Australian Defence Force] obligation to comply with LOAC is not conditional upon an enemy’s compliance; unilateral compliance by the ADF is required.”
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium’s Law of War Manual (1983) states: “The conventional law of war remains, in principle, obligatory between signatory parties, even if one of them violates it.”
Canada’s LOAC Manual (1999) provides:
The principle of reciprocity refers to the premise that all should be treated as you would like to be treated. Compliance with the LOAC [law of armed conflict] is not only required by law, it is also to our operational advantage.
The manual further states:
A party to an international armed conflict is bound to comply with the LOAC even if an adverse party breaches the law. Compliance with the law by one party is a strong inducement for the adverse party to comply with the law.
Canada’s Code of Conduct (2001) provides: “CF [Canadian Force] personnel will treat detained persons properly regardless of how CF personnel may have been treated while in the hands of opposing forces.”
The Code of Conduct further stresses: “There is no exception to your obligation to follow Canadian law even when confronted with an opposing force which refuses to comply with the Law of Armed Conflict.”
Canada’s LOAC Manual (2001) states: “The principle of reciprocity refers to the premise that all should be treated as you would like to be treated. Compliance with the LOAC is not only required by law, it is also to our operational advantage.”
In its chapter entitled “Preventative and enforcement measures and the role of protecting powers”, the manual further states:
A party to an international armed conflict is bound to comply with the LOAC even if an adverse party breaches the law. Compliance with the law by one party is a strong inducement for the adverse party to comply with the law. As a practical matter, if one party treats PWs [prisoners of war] properly or confines its attacks to military objectives, the adverse party is less likely to be tempted to breach the law.
In its glossary, the manual states:
The principle of reciprocity refers to the old saying, “Treat others the way you would like to be treated”. Compliance with the LOAC is mandatory. If one party to an armed conflict scrupulously complies with the LOAC, there is a greater chance that the other side will do so as well.
Canada’s Code of Conduct (2005) provides: “CF [Canadian Forces] personnel will treat detained persons properly regardless of how CF personnel may have been treated while in the hands of opposing forces.”
The Code of Conduct further states: “There is no exception to your obligation to follow Canadian law even when confronted with an opposing force which refuses to comply with the Law of Armed Conflict.”
Chad’s Instructor’s Manual (2006) states that “the notion of reciprocity has no place in IHL”.
Colombia’s Basic Military Manual (1995) states: “It is important to note that in IHL the principle of reciprocity does not exist, which means that none of the parties to the conflict can put forward the violations of the enemy as a reason to stop implementing humanitarian norms.”
Colombia’s Operational Law Manual (2009) states:
3. Fundamental guarantees and IHL principles
These guarantees have been shaped into principles that must orient behaviours during situations of hostilities and be observed through every military operation:
- Principle of non-reciprocity
: IHL is mandatory for all of those who participate in hostilities. According to the Constitutional Court, these rules “are obligations erga omnes
compliance with which is not dependent on reciprocity
given the purely humanitarian and civilizing objectives it pursues, which constitute the common rather than the individual interests of the members of the international community.”
[footnotes in original omitted; emphasis in original]
The manual also states: “Principle of non-reciprocity
: the Armed Forces cannot blame their non-compliance with IHL norms on the lack of compliance of illegal armed groups.”
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
III.1. Collective responsibility
Collective responsibility of a belligerent party for a violation of the law of armed conflicts takes several forms.
- The most frequent and foremost form of collective responsibility manifests when one party to the conflict, seeing itself confronted with a violation of one or more rules of IHL by the other party, no longer considers itself bound to respect the rule or rules in question. Such an attitude is nothing other than the rigorous application of the principle of negative reciprocity.
Anxious to prevent the intervention of such a summary principle, the authors of the 1949 Geneva Conventions have specified in Article 1 common to the four Conventions that the parties are bound to respect the Conventions in all circumstances.
III.4. Mechanisms to engage the responsibility of the State
Lastly, let us recall one means not at the disposal of the injured State. In contrast to what international treaties normally allow, in the context of international humanitarian law a State cannot withdraw from its obligations by invoking the fact that the adverse party grossly violates its obligations. The rules of international humanitarian law are not subject to the condition of reciprocity; they must be respected by every party to a conflict, in all circumstances and without conditions.
On the other hand, the Geneva Conventions and the Protocols can be denounced like every international law treaty. Such a denunciation, however, in any case takes effect only one year after the end of the conflict. The obligations of a customary character evidently cannot be denounced, since States are not free to dispose of these norms as they please.
Ecuador’s Naval Manual (1989) provides:
Some obligations under the law of armed conflict are reciprocal in that they are binding on the parties only so long as both sides continue to comply with them. A major violation by one side will release the other side from all further duty to abide by that obligation. The concept of reciprocity is not applicable to the rules of humanitarian law that protect the victims of armed conflict, that is, those persons protected by the 1949 Geneva Conventions.
Germany’s Military Manual (1992) states:
People complying with the provisions of international humanitarian law themselves can expect the adversary to observe the dictates of humanity in an armed conflict. No one shall be guided by the suspicion that soldiers of the other party to the conflict might not observe the rules. Soldiers must treat their opponents in the same manner as they themselves want to be treated.
Germany’s IHL Manual (1996) notes: “Only those who respect themselves the regulations of international humanitarian law may expect that the adversary also respects them (so-called principle of reciprocity).”
France’s LOAC Teaching Note (2000) states:
Combatants shall respect at any place and in all circumstances the rules of the law of armed conflict … They may in no case release themselves from those rules, regardless of the framework and the mandate of their mission, even if the enemy does not respect those rules.
France’s LOAC Manual (2001) provides that combatants must respect in all circumstances the rules of the law of armed conflict “even if the adversary does not respect these rules”.
Israel’s Manual on the Laws of War (1998) states: “Mutuality is the cardinal basis for the existence of the laws of war. The breakdown of rules anywhere would lead to a deterioration in which each side would respond to the acts of the other.”
Israel’s Manual on the Rules of Warfare (2006) states: “Mutuality lies at the foundation of the rules of warfare. Whenever the rules collapsed, deterioration set in, each side reacting to the actions of the other.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
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.
New Zealand’s Military Manual (1992) states: “Generally speaking, a Party to an international armed conflict is bound to comply with the customary law of armed conflict and with its treaty obligations even if an adverse Party breaches the law.”
The Philippines’ Air Power Manual (2000) provides:
1-6.1. It is the individual combatant who acts as agent for the sovereign state to further its national interests. However, it is presumed that during an armed conflict, he is willing to accept the limits of his actions and recognize the prevailing concept of legitimacy in all aspects of conflict. The system that exists to regulate conduct in combat is known as the Law of Armed Conflict (LOAC), otherwise referred to as the Law of War.
1-6.2. LOAC is the code of ethics for the profession of arms. And because of the serviceman’s burden of responsibility in combat, LOAC assumes a status of an inviolable moral compact. It signifies individual commitment to a nation’s dedication to principled behavior even amid the confusion and anxieties of battle, and regardless of the actions of the enemy.
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
Compliance with the LOAC addresses the interests of individual human beings, including soldiers, for the following reasons[:]
- Reciprocal behaviour is encouraged: Compliance or non-compliance with the LOAC encourages your enemy to treat you in the same manner.
1.4 Different Types of armed Conflict and those bound by LOAC
To whom does the LOAC apply?
Application: Parties to the Conventions
Common article 2 to the  Geneva Conventions determines that although one of the Powers in conflict may not be a party to the Conventions, the Powers who are parties thereto shall remain bound by it in their mutual relations. …
Common article 2 to the Geneva Conventions further states that although one of the Powers in conflict may not be a party to the Conventions, they shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. …
Realise that this article stems from 1949, and that the Geneva Conventions have since become customary international law, thus applicable to all states of the world.
The fact that the LOAC is applicable and binding on a State means that it would be foolishness to disregard it, as:
- The protection and duties are reciprocal, the rules confer protection, not only on the enemy, but also upon yourself, your comrades and allies and your civilian family and friends.
The manual also states:
2.4 Specifically Protected Persons and Objects:
It is very important to take note of the provisions of article 51.8 of [the 1977] Additional Protocol I. This article determines that any violations of the prohibitions provided for in article 51, shall not release the Parties to the conflict from their obligations with regard to the civilian population and civilians, including the obligation to take precautionary measures provided for in article 57.
Spain’s LOAC Manual (1996) notes: “International treaties and agreements are made up of imperative norms of law … They do not lose their validity because one of the opposing parties does not respect them.”
Spain’s LOAC Manual (2007) states:
International treaties and conventions lay down peremptory norms from which no derogation is permitted, unless the treaty or convention in question provides for exceptions. Furthermore, the binding force of a treaty is not lessened by the failure of one of the parties to comply with it or by widespread or repeated non-compliance.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
The international law of armed conflict is based on the principle of reciprocity: i.e. “Do not do to others what you do not want done to you”. Respect for the rules of the international law of armed conflict based on the principle of reciprocity benefits both the parties involved in a conflict and the civilian population. Violation of these rules by the enemy under no circumstances justifies one’s own deviation from the rules of the international law of armed conflict.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “A belligerent is not justified in declaring itself freed altogether from the obligation to observe the laws of war or any of them on account of their suspected or ascertained violation by his adversary.”
United States of America
The US Air Force Pamphlet (1976) notes:
The most important relevant treaties, the 1949 Geneva Conventions for the Protection of War Victims, are not formally conditioned on reciprocity. Parties to each Convention “undertake to respect and ensure respect for the present Convention in all circumstances” under Article 1 common to the Conventions. The Vienna Convention On the Law of Treaties, Article 60(5), also recognizes that the general law on material breaches, as a basis for suspending the operation of treaties, does not apply to provisions protecting persons in treaties of a humanitarian character. Yet reciprocity is an implied condition in other rules and obligations including generally the law of armed conflict. It is moreover a critical factor in actual observance
of the law of armed conflict. Reciprocity is also explicitly the basis for the doctrine of reprisals. Additionally, a few obligations, such as those contained in the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, are even formally conditioned on reciprocal adherence.
[emphasis in original]
The Pamphlet further states:
The UN Resolutions and the Geneva Conventions set forth standards regardless of whether observance is reciprocated. Hence, reciprocity is neither a formal condition precedent qualifying the obligation to observe the Conventions, nor does lack of reciprocity excuse failures to comply.
United States of America
The US Naval Handbook (1995) states:
Some obligations under the law of armed conflict are reciprocal in that they are binding on the parties only so long as both sides continue to comply with them. A major violation by one side will release the other side from all further duty to abide by that obligation. The concept of reciprocity is not applicable to humanitarian rules of law that protect the victims of armed conflict, that is, those persons protected by the 1949 Geneva Conventions. The decision to consider the United States released from a particular obligation following a major violation by the enemy will be made by the [National Command Authorities].
United States of America
The US Naval Handbook (2007) states:
Some obligations under the law of armed conflict are reciprocal in that they are binding on the parties only so long as both sides continue to comply with them. A major violation by one side will release the other side from all further duty to abide by that obligation. The concept of reciprocity is not applicable to humanitarian rules that protect the victims of armed conflict, that is, those persons protected by the 1949 Geneva Conventions. The decision to consider the United States released from a particular obligation following a major violation by the enemy will be made by the president.
Somalia’s Military Criminal Code (1963) states:
The offences specified in Chapter II [entitled “Illegal or arbitrary hostile acts”], in Chapter III, Section I [entitled “Abuse of means of harming the enemy”], and in Chapter VI [entitled “Offences concerning military requisitions, contributions and services”] of this Title, where committed by Somali citizens against the enemy State or subjects thereof, shall be punishable pursuant to an order from the Supreme Commander, or only insofar as the enemy State guarantees equal protection under criminal law to the Somali State and to its citizens.
Bosnia and Herzegovina
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina stated:
[A]ccording to this provision [common Article 1 of the 1949 Geneva Conventions], the fact that the adversary engages in unlawful behaviour and persecutes or kills civilians cannot be a justification for similar and reciprocal conduct. Moreover, common Article 1 establishes an obligation to respect and to ensure respect “in all circumstances”, making the obligation unconditional and, in particular, not subject to the constraint of reciprocity. In truth, no circumstance can be invoked in support of any given breach of the obligations concerned. None of the legally recognized means apt to “remedy” the illegality of violations of international law, be it self-defence, recourse to counter-measures, consent of the victim or state of necessity, are of consequence or can be claimed as circumstances precluding wrongfulness in this particular field. This is because international humanitarian law escapes the general logic of reciprocity that normally prevails in the international legal system … As such fundamental rules may not be infringed in any circumstance, it follows that the Security Council cannot request States to implement sanctions in violation of humanitarian law. In other words, although Article 103 of the [UN] Charter asserts that the obligations of UN members under the Charter, thus including the duty under Article 25 [of the UN Charter] to accept and carry out the decisions of the Security Council, prevail over their obligations under any other international agreement, this provision [Article 103] cannot apply to “Geneva law” obligations. [The “Geneva law” obligations are] binding on States as well as on the UN itself, as these obligations stem from “intransgressible” norms that may never be justifiably contravened, neither by [States] nor by the [UN].
[footnotes in original omitted]
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
[T]he obligation to respect and ensure respect for international humanitarian law is not synallagmatic or reciprocal. That is to say, the fulfilment of such obligation by States is not dependant on it being fulfilled by the other parties to the conflict. The non-reciprocal character of these obligations stems directly from the fundamental nature of the norms and principles they seek to protect as well as from the fact that such obligations are erga omnes
and thus acquired before the international community as a whole … The non-reciprocal character of the obligation to respect and ensure respect for international humanitarian law has already acquired customary status.
[footnote in original omitted]
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.
United States of America
In the Von Leeb case (The German High Command Trial)
in 1948, the US Military Tribunal at Nuremberg stated: “Under general principles of law, an accused does not exculpate himself from a crime by showing that another committed a similar crime, either before or after the alleged commission of the crime by the accused.”
In a report on a symposium on IHL held in Belgium in 1974, a representative of the Belgian Ministry of Justice noted:
The notion of reciprocity, which has recently again been rejected by the Committee of Experts on Human Rights of the Council of Europe, has several times been mentioned, which appears to be somewhat shocking. In fact, it is difficult to imagine how one could justify “inhumane treatments” under the pretext that the adversary has recourse to them.
In 2005, in its Seventh Human Rights Policy Report submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
At the 28th International Conference of the Red Cross and Red Crescent in Geneva in December 2003, the then Federal Government Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office, Claudia Roth, stated the following with regard to the treatment of prisoners of war in Guantánamo:
“International humanitarian law and the international human rights protection standards create legal protection, without gaps, for the individual human being. No grey areas can be allowed in this comprehensive protective mechanism, to which States have committed themselves.
This applies to prisoners of war, suspects and also to a war criminal, who, rightly so, is held to account. He also is entitled to humane treatment and a fair trial, in accordance with the rule of law.
Also in the fight against terrorism we must remain committed to our humanitarian standards, even if the adversary has disregarded them in a cruel and unscrupulous way. I would like to stress this expressly with a view to the detainees in Guantánamo.”
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, India cited Fitzmaurice and stated:
Reprisals or retaliation under international law are also governed by certain specific principles … Reprisals could not involve acts which are malum in se
such as certain violations of human rights, certain breaches of the laws of war and rules in the nature of ius cogens
, that is to say obligations of an absolute character compliance with which is not dependent on corresponding compliance by others but is requisite in all circumstances unless under stress of literal vis major
… In other words … even where a wrongful act involved the use of a nuclear weapon the reprisal action cannot involve [the] use of a nuclear weapon without violating certain fundamental principles of humanitarian law. In this sense, prohibition of the use of a nuclear weapon in an armed conflict is an absolute one, compliance with which is not dependent on corresponding compliance by others but is a requisite in all circumstances.
The Report on the Practice of Iraq states: “For the activities which constitute a violation of human rights or the humanitarian law, this can never be reciprocated.” The report cites a speech by the Iraqi President during the Iran–Iraq War, in which he declared: “We do not react in the same way despite the bitterness of their behaviour. We stick to our values and let them stick to their methods, and as a result, history will record our special known values and record their heinous methods.”
At the CDDH, Mexico stated: “The mandatory nature of humanitarian law does not depend on the observance of its rules by the adverse Party, but stems from the inherently wrongful nature of the act prohibited by international humanitarian law.”
In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1994, Solomon Islands stated:
The rule elaborated in Art. 1 [common to the 1949 Geneva Conventions] also indicates that reciprocity has no place in the law of armed conflicts … The principle of non-reciprocity excludes a fortiori
recourse to reprisals in relation to the use of nuclear weapons, even against combatants.
In 1998, an ICRC publication entitled “Spared from the Spear” recorded traditional Somali practice in warfare as follows:
[T]he treatment of the wounded members of the enemy who were captured … depended on … the precedent established by that party which seized wounded prisoners first. If they had finished off the wounded men who fell into their hands, it became the established practice for that particular war to kill any wounded warriors who were captured.
In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, the Transitional Federal Government of Somalia referred to “Spared from the Spear” as its “own Geneva Conventions”:
In times of hostilities, the Biri-Ma-Geydo
(Spared from the Spear), i.e. Somalia’s own “Geneva Conventions”[,] which existed long before the adoption of the Hague and Geneva Conventions, mitigated and regulated the conduct of clan hostilities and the treatment of immune groups.
In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, Somalia’s Transitional Federal Government stated: “The Somali national forces are instructed to adhere to IHL … even if the insurgent fighters do not.”
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
In 2008, in its response to a question by a member of the National Council, Switzerland’s Federal Council wrote:
3. As depository state and contracting party to the  Geneva Conventions, Switzerland wishes to underline the importance of respect for international humanitarian law by all the parties to the conflict, whether this concerns state armed forces, armed groups or individuals. Its call to respect international norms is thus addressed to all the parties to the Israeli-Palestinian conflict.
Israel has the right and the duty to protect its territory and population against attacks. However, as a party to the conflict, it is bound by the obligations emanating from international humanitarian law. Furthermore, disrespect of the rules of international humanitarian law by one party to the conflict cannot legitimize violations of the law by the other party.
Switzerland’s ABC of International Humanitarian Law (2009) states:
The parties to a conflict must respect international humanitarian law in all circumstances and regardless of the behaviour of the other side. A State Party cannot evade its own obligations arguing that the other Party is failing to uphold international humanitarian law. Thus a State Party accused of a violation cannot justify its actions on the grounds that the other Party committed a similar violation.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
4 Possibilities of international humanitarian law development
As the preceding analysis underlines, international humanitarian law maintains its relevance for most of the aspects of current armed conflicts. The fundamental principles such as distinction and proportionality remain valid in guerrilla wars, which represent today the main form of conducting war. These principles represent a permanent requirement that cannot be called into question, not even by notorious non-respect by the parties to a conflict.
[footnotes in original omitted]
United Kingdom of Great Britain and Northern Ireland
On 21 January 1991, in the context of the Gulf War, the UK Minister of Foreign Affairs summoned the Iraqi ambassador to discuss Iraq’s obligations under international law. According to a statement by an Foreign and Commonwealth Office spokesperson following the meeting, “the Ambassador said that Iraq would abide by the Convention and treat POWs [prisoners of war] well if the Allies avoided civilian targets. Mr Hogg said that we expected unconditional observance of the requirements of the Convention.”
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
Central Command … forces adhered to … fundamental law of war proscriptions in conducting military operations during Operation Desert Storm through discriminating target selection and careful matching of available forces and weapons systems to selected targets and Iraqi defenses, without regard to Iraqi violations of its law of war obligations toward the civilian population and civilian objects.
UN Commission on Human Rights (Special Rapporteur)
In 1994, in a report on the situation of human rights in the territory of the former Yugoslavia, the Special Rapporteur of the UN Commission on Human Rights stated:
The idea of a “linkage” between the provision of humanitarian aid to Srebrenica and the evacuation of Serbs from Tuzla is to be condemned. Compliance with human rights and humanitarian law obligations by one party is not conditional upon compliance by others with their obligations: such obligations are absolute for each party and do not depend on reciprocity.
International Conference of the Red Cross (1973)
The 22nd International Conference of the Red Cross in 1973 adopted a resolution on activities of the ICRC in which it recalled that the 1949 Geneva Conventions “provide essential protection for the human person, constitute solemn commitments vis-à-vis
the whole international community” and that “the application of the provisions contained therein cannot therefore be subject to reciprocity or to political or military considerations”.
International Court of Justice
In its advisory opinion in the Namibia case in 1971, the ICJ noted:
the general principle of law that a right of termination on account of breach must be presumed to exist in respect of all treaties, except as regards provisions relating to the protection of the human person contained in treaties of a humanitarian character (as indicated in Art. 60, para. 5, of the  Vienna Convention [on the Law of Treaties].
International Criminal Tribunal for the former Yugoslavia
In its review of the indictment in the Martić case in 1996, the ICTY Trial Chamber stated:
The prohibition against attacking the civilian population as such as well as individual civilians must be respected in all circumstances regardless of the behaviour of the other party. The opinion of the great majority of legal authorities permits the Trial Chamber to assert that no circumstances would legitimise an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party. The exclusion of the application of the principle of reprisals in the case of such fundamental humanitarian norms is confirmed by Article 1 Common to all Geneva Conventions.
In its judgment in 2008, the ICTY Appeals Chamber considered the appellant’s attempt to plead a defence based on reciprocity, stating:
111. … It is well established in the jurisprudence of the Tribunal that arguments based on reciprocity, including the tu quoque argument, are no defence to serious violations of international humanitarian law.
270. … It is one of the pillars of international humanitarian law that its provisions have to be applied in all circumstances. One side in a conflict cannot claim that its obligations are diminished or non-existent just because the other side does not respect all of its obligations.
[footnotes in original omitted]
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case in 2000, the ICTY held that:
515. Defence counsel have indirectly or implicitly relied upon the tu quoque principle, i.e. the argument whereby the fact that the adversary has also committed similar crimes offers a valid defence to the individuals accused. This is an argument resting on the allegedly reciprocal nature of obligations created by the humanitarian law of armed conflict. This argument may amount to saying that breaches of international humanitarian law, being committed by the enemy, justify similar breaches by a belligerent. Or it may amount to saying that such breaches, having been perpetrated by the adversary, legitimise similar breaches by a belligerent in response to, or in retaliation for, such violations by the enemy. Clearly, this second approach to a large extent coincides with the doctrine of reprisals, and is accordingly assessed below. Here the Trial Chamber will confine itself to briefly discussing the first meaning of the principle at issue.
516. It should first of all be pointed out that although tu quoque was raised as a defence in war crimes trials following the Second World War, it was universally rejected. The US Military Tribunal in the High Command trial, for instance, categorically stated that under general principles of law, an accused does not exculpate himself from a crime by showing that another has committed a similar crime, either before or after the commission of the crime by the accused. Indeed, there is in fact no support either in State practice or in the opinions of publicists for the validity of such a defence.
517. Secondly, the tu quoque argument is flawed in principle. It envisages humanitarian law as based upon a narrow bilateral exchange of rights and obligations. Instead, the bulk of this body of law lays down absolute obligations, namely obligations that are unconditional or in other words not based on reciprocity. This concept is already encapsulated in Common Article 1 of the 1949 Geneva Conventions, which provides that “The High Contracting Parties undertake to respect … the present Convention in all circumstances” [emphasis added]. Furthermore, attention must be drawn to a common provision (respectively Articles 51, 52, 131 and 148) which provides that “No High Contracting party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article (i.e. grave breaches)”. Admittedly, this provision only refers to State responsibility for grave breaches committed by State agents or de facto State agents, or at any rate for grave breaches generating State responsibility (e.g. for an omission by the State to prevent or punish such breaches). Nevertheless, the general notion underpinning those provisions is that liability for grave breaches is absolute and may in no case be set aside by resort to any legal means such as derogating treaties or agreements. A fortiori such liability and, more generally, individual criminal responsibility for serious violations of international humanitarian law may not be thwarted by recourse to arguments such as reciprocity.
518. The absolute nature of most obligations imposed by rules of international humanitarian law reflects the progressive trend towards the so-called “humanisation” of international legal obligations, which refers to the general erosion of the role of reciprocity in the application of humanitarian law over the last century. After the First World War, the application of the laws of war moved away from a reliance on reciprocity between belligerents, with the consequence that, in general, rules came to be increasingly applied by each belligerent despite their possible disregard by the enemy. The underpinning of this shift was that it became clear to States that norms of international humanitarian law were not intended to protect State interests; they were primarily designed to benefit individuals qua
human beings. Unlike other international norms, such as those of commercial treaties which can legitimately be based on the protection of reciprocal interests of States, compliance with humanitarian rules could not be made dependent on a reciprocal or corresponding performance of these obligations by other States. This trend marks the translation into legal norms of the “categorical imperative” formulated by Kant in the field of morals: one ought to fulfil an obligation regardless of whether others comply with it or disregard it.
The ICRC Commentary on the First Geneva Convention states that IHL treaties are not
an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. [They are] rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties. Each State contracts obligations “vis-à-vis” itself and at the same time “vis-à-vis” the others.
In a communication to the press in 2000, the ICRC condemned grave breaches of IHL in Colombia and stated: “International law expressly states that a violation committed by one party does not legitimize similar action by the adversary.”