Common Article 2 and Non-State Reciprocity in the Law of Armed Conflict
Editors’ note: This post is an abbreviated version of an article appearing in the Emory International Law Review Volume 39 (2025).
When the States that signed the 1949 Geneva Conventions negotiated the applicability provisions in Common Articles 2 (CA2) and 3 (CA3), they included a provision that required reciprocal compliance by State parties fighting with State non-parties if the State non-party committed to, and actually did, comply with the provisions of the Conventions. The second sentence of the third paragraph of CA2 provides the following (emphasis added):
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.
This provision, on its face, allows for a “Power” that is not a party to the Geneva Convention to bind a party to the Convention to follow the Convention so long as the “Power” states that it accepts the provisions of the Convention and applies them in fact. This “Reciprocity Clause” has lost almost all of its potential meaning because of the now-universal application of the Geneva Conventions to States.
However, the Reciprocity Clause’s utility, foreshadowed by its negotiating history, may return by adaptation to conflicts with non-State actors, or non-international armed conflicts (NIACs). Applying the CA2 Reciprocity Clause to NIACs would provide a strong incentive for non-State actors to acknowledge and adhere to law of armed conflict (LOAC) standards, a development that would be universally welcomed. The reciprocal requirement for States to treat detained members of organizations such as ISIS as prisoners of war would be a small price to pay compared to the global benefits of ensuring terrorist organizations actually complied with LOAC.
The History of the Reciprocity Clause
While perceived as potentially heretical today, the LOAC evolution this post contemplates is not out of line with the views of many States at the time of drafting the 1949 Geneva Conventions. In the initial draft of the Convention, the International Committee of the Red Cross (ICRC) sought to promote the application of the Conventions to civil wars and other NIACs. The original Article Two of the Stockholm Draft read as follows (emphasis added):
In addition to the stipulations which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
If one of the Powers in conflict is not party to the present Convention, the Powers who are party thereto shall notwithstanding be bound by it in their mutual relations.
In all cases of armed conflict not of an international character which may occur in the territory of one or more of the High Contracting Parties, each of the adversaries shall be bound to implement the provisions of the present Convention. The Convention shall be applicable in these circumstances, whatever the legal status of the Parties to the conflict and without prejudice thereto.
The first three paragraphs of Draft Article 2 are found almost verbatim in the current version of CA2 in the 1949 Geneva Conventions. However, the fourth paragraph, dealing exclusively with the application of the Conventions to “armed conflicts not of an international character,” is not. As written, it requires the application of the Conventions in every NIAC that takes place within the territory of a State that is a party to the Convention. The deliberations regarding this fourth paragraph of Draft Article 2 turned out to be perhaps the most discussed and contentious of the 1949 Diplomatic Conference.
The International Committee of the Red Cross (ICRC) and some States advocated for the general application of LOAC to both IACs and NIACs, emphasizing the need to provide for the application of the principle of reciprocity across the Conventions. Other delegations expressed concerns with applying the full breadth of the Conventions—especially the provisions found in the (then) draft Civilian Convention—to internal NIACs, such as civil wars. They questioned how a State could effectively fight against a non-State actor made of its own nationals while attempting to abide by the Civilian Convention. Ultimately, the paragraph in question led to the creation of both the CA2 Reciprocity Clause, without the reference to NIACs, and the current text of CA3 with its specific NIAC focus.
More particular to the principle of reciprocity, in the proposal that created the eventual language of the Reciprocity Clause, none of the amendments explicitly barred non-State actors from being one of the “Powers” referred to in the article. Further, in the discussions regarding the proposals there is no express statement foreclosing the possibility. The strongest indication is a summary of a statement by Albert Lamarle of the French delegation, suggesting a time limit before the obligation to apply the Convention to a “non-contracting State” would expire. All other statements by delegates in the committee regarding the proposed amendments use the term “Party” or “Power,” potentially ambiguous terms when delineating between States and non-States. Given this history, it seems reasonably clear that there was significant support, though not a majority at the time the Conventions were written, for more general application of LOAC to NIACs.
In 1977, the Additional Protocols to the 1949 Geneva Conventions revisited this issue. The expansion of CA2 conflicts to include “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination” and the extension of the term “Power” to include “non-State entities” indicates a clear trend in the development of international law. The United States’ rejection of the provisions of Additional Protocol I (AP I) that extend combatant status to armed groups who are not a part of a State’s armed forces (AP I, arts. 43-44) is another indication of attempts by the international community to enlarge LOAC coverage in NIACs.
Modern efforts by the ICRC, Geneva Call, and others to secure unilateral commitments by non-State actors to abide by LOAC in NIACs could become part of the basis for a broader application of the reciprocity clause. While certainly not a current standard in LOAC, there appears to be increasing support for a return to some of the original arguments in the 1949 Geneva Conventions to dissolve the difference between LOAC coverage in NIACs and IACs.
An Evolved Application
Two specific, but different, situations exemplify the benefit of adopting an evolved interpretation of the Reciprocity Clause enshrined in CA2’s paragraph 3: (1) conflicts between States and non-State actors such as al-Qaeda, ISIS and Hamas; and (2) conflicts between States and non-recognized States such as the potential conflict between China and Taiwan. Each will be discussed below.
Non-State Actors Such as al-Qaeda, ISIS, and Hamas
Over the past two decades, the international community has been acutely focused on armed conflicts with non-State actors who are acknowledged terrorist organizations and who, as part of their identity, disregard LOAC. It is now widely accepted that LOAC applies to all parties to an armed conflict, including non-State actors. However, these legalistic arguments have proven unpersuasive to organizations such as al-Qaeda, ISIS, and Hamas. This was graphically illustrated as recently as Hamas’s October 7, 2023, attacks in Israel.
Scholars have previously argued for States to provide incentives, such as some benefits of LOAC, to non-State actors who agree to comply, and an increased analysis of reciprocity, but these suggestions have yet to be embraced by States. Providing combatant immunity to terrorists who disregard LOAC is antithetical to the honor shared by even warring militaries. Nevertheless, it is uncontested that the world in general would be a safer place, and there would be significantly less civilian harm during armed conflict, if terrorist organizations such as al-Qaeda, ISIS, and Hamas actually complied with LOAC. The Reciprocity Clause provides a potentially palatable, and previously acceded to, method for incentivizing non-State terrorist organizations to transform their operations.
Some might argue that non-State terrorist organizations have indicated no desire to comply with LOAC. This may be true, but it is also clear that the international community has provided limited incentives to do so. Under the current application of LOAC, even if Hamas had conducted its October 7, 2023, attacks in compliance with LOAC principles, its fighters would not have been granted any form of combatant immunity or prisoner of war status upon capture. In other words, other than the moral high ground of complying with the law, LOAC provides no practical reason for Hamas and other similar organizations to change their current methods of operation.
Expanding the Reciprocity Clause to include commitments by non-State actors would provide a tangible incentive to encourage broader compliance. Providing a pathway for non-State actors to achieve compliance with LOAC, considering the significant benefits that will result for civilians during armed conflict, is a simple but potentially revolutionary innovation that is within the current contemplation of CA2, and will have long-term and widespread impacts on future armed conflicts.
Non-Recognized States Such as Taiwan
As part of the 2024 Lieber Institute Workshop, the current situation between Taiwan and the PRC was a matter of significant discussion, including the issue of the treatment of Taiwanese armed forces in the event of an armed conflict with the People’s Republic of China. This potential conflict is a clear example of the potential benefits from an evolved understanding of the Reciprocity Clause.
While China is a party to the 1949 Geneva Conventions, because Taiwan is not recognized as an independent State, the conflict would be classified under international law as a NIAC, to which most but not all of LOAC applies. Important provisions such as the treatment of fighters (combatants) and occupation would be inapplicable under the current application of LOAC. Therefore, if armed conflict occurred, the armed forces of Taiwan would receive no combatant immunity and would be triable as murderers or attempted murderers under Chinese domestic law. This result is likely not what the international community would have wanted when drafting the language of CA2.
However, if the Reciprocity Clause is expanded to cover armed conflicts between States and non-State actors, Taiwan can bind China to reciprocally follow the entire breadth of the Conventions in a potential armed conflict by invoking CA2’s third paragraph. Taiwan could, in accordance with this provision, make an official statement prior to the outbreak of hostilities committing itself to the application of the Convention. Such a statement would then bind China to adhere to the broad protections and limitations mandated by the Convention, so long as Taiwan complies with the same provisions.
Conclusion
Three quarters of a century after the adoption of the Geneva Conventions of 1949, armed conflict has not ceased, and the increasing number of NIACs demands that the international community look at ways to expand the reach of LOAC. Applying the Reciprocity Clause to NIACs is an effective next step in expanding LOAC coverage to further ameliorate the suffering of individuals involved in those conflicts. Not only is this evolution within the intent of many of the original States party to the Conventions, it is certainly within the spirit of all States’ intentions. The potential armed conflict between China and Taiwan, and current and past conflicts with transnational terrorist and other paramilitary organizations demonstrates the value of this proposal. Expanding the Reciprocity Clause to apply to NIACs such as this is thus both practical and, as one delegate put it in 1949, “only in the interests of justice and humanity.”
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Eric Talbot Jensen is a Professor of Law at Brigham Young University.
J. Stone Wilson is an associate attorney at Hilty, Bower, Haws & Seable, PLLC in Nampa, Idaho.
Photo credit: IDF Spokesperson’s Unit
