The End of Reciprocity: Terror, Torture, and the Law of War by Mark Osiel

By Mark Osiel

Why may still the USA restrain itself in detaining, interrogating, and concentrating on terrorists after they convey it no related forbearance? Is it reasonable to anticipate one facet to struggle by way of extra stringent ideas than the opposite, putting itself at drawback? Is the deprived facet then authorised to exploit the strategies and methods of its opponent? if that is so, then America's such a lot debatable counterterrorism practices are justified as commensurate responses to indiscriminate terror. but varied moral criteria end up totally becoming, the writer reveals, in a clash among a community of suicidal terrorists looking mass atrocity at any rate and a constitutional democracy devoted to respecting human dignity and the rule of thumb of legislations. an important reciprocity includes neither uniform software of reasonable ideas nor their enforcement through a simple-minded tit-for-tat. actual reciprocity in its place involves contributing to an emergent international agreement that encompasses the legislations of battle and from which all peoples might jointly profit.

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Additional resources for The End of Reciprocity: Terror, Torture, and the Law of War

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But what if the tribunal had here embraced the reciprocity principle? Then the partisans’ duty to respect humanitarian law would have been contingent on general adherence to it by the German occupiers of their Introduction 23 country. In that case, Nazi collective punishment of French civilians would have discharged such civilians from their duties of nonresistance. 122 Rejecting reciprocity, as the tribunal here elected, foreclosed this appealing result. The judges had their reasons. , once military occupation had been established).

Conduct in these respects is truly defensible by the law of reprisal (Chapter 2) and its underlying morality of reciprocity (Chapters 5 through 7) are possibilities later examined. S. thinking about collateral damage since World War II. The longstanding traditional view contends that banning reprisals is counterproductive. However objectionable reprisals are in punishing the innocent,27 the increasing legal restrictions on such actions are misguided even from a humanitarian perspective. 29 Typical today is the position of the 1958 British Manual of Military Law in disavowing a very broad, unencumbered right of reprisal: “A belligerent is not justified in declaring himself freed altogether from the obligation to observe the laws of war .

Many today repudiate the Bush administration’s strategic doctrine of preventive war, particularly for its extensions beyond any hitherto accepted notion of preemptive self-defense. 65 Yale Law professor W. Michael Reisman is right to acknowledge that, when fighting terrorists who are “impervious to the controls of reciprocity and retaliation that operate on territorial elites . . a government in a functioning democracy whose population faces 42 The End of Reciprocity such violence will not last long if .

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