The concept of reciprocity is an important one for international law. Consider this scenario:
David Glazier, a retired naval officer who teaches the laws of war at Loyola Law School in Los Angeles, posed the question: if Iran someday shoots down an American pilot, could the Iranian military — citing the administration’s position — prosecute and execute him for an idiosyncratic war crime derived from Persian tradition rather than international law?
“What we are seeing is that it’s easy for civilian members of the government, who are in power for a comparatively short time, to get tunnel vision on a particular case or situation,” he said. “But how the United States handles these cases is going to influence how other countries in future wars treat captured Americans.”
At its heart is a concern about whether US military tribunals should prosecute the charge of “conspiracy”. Contrary to the NYT report, conspiracy does play a role within international law–having influenced the Nuremberg Trials and Internaitonal Criminal Tribunal for the Former Yugoslavia (ICTY) at the Hague–even if its not officially recognized.
The move to use conspiracy returned as a result of the need to prosecute Guantanamo detainees, but has, since being listed as one of the four “punishable acts” of genocide in 1948, been very much a part of the legal toolbox in the post-WWII international legal setting.