Common Article 2 and Non-State Reciprocity in the Law of Armed Conflict

The majority of today’s armed conflicts are waged between States and non-State actors. Because these conflicts are not between States, they do not fall under the coverage of Common Article 2 (CA2) of the 1949 Geneva Conventions which invokes the full corpus of international humanitarian law. However, the third paragraph of CA2, the “Reciprocity Clause”, was written to provide a mechanism for non-Parties to the Geneva Conventions to invoke the provisions of the Conventions in a conflict with a Party. State Parties agreed to be bound by the Conventions, even in conflicts with non-Parties, as long as those non-Parties agreed to abide by the provisions of the Conventions.

This paper proposes that the Reciprocity Clause be extended to apply to armed conflicts between States and non-State actors where the non-State actor commits to (and does) abide by the provisions of the Conventions. This innovative but legally justifiable proposal would incentivize groups like al-Qaeda, ISIS, and Hamas to declare and actually conform to IHL in order to receive reciprocal protections, as well as bind countries like China in a potential conflict with Taiwan to apply the complete IHL when it might otherwise argue it is not legally required to do so.