Traités, États parties et Commentaires
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Commentaire of 2016 
Article 46 : Prohibition of reprisals
Text of the provision
Reprisals against the wounded, sick, personnel, buildings or equipment protected by the Convention are prohibited.
Reservations or declarations
None
Contents

A. Introduction and definition of the concept of reprisal
2729  Traditionally, international law did not contain a centralized enforcement mechanism. It was against this background that injured States resorted to reprisals as a self-help or self-protection measure. Reprisals would be contrary to international law unless they were taken by the injured State in response to an internationally wrongful act committed by a responsible State, in order to induce the latter to comply with its obligations. ‘Reprisal’ or ‘belligerent reprisal’ is the term commonly used in the context of international armed conflict, whereas they have become known as ‘countermeasures’ outside of this context.[1]
2730  A distinction is generally made between reprisals and retorsion. Retorsion is an unfriendly but lawful measure taken in response to another State’s unfriendly or unlawful act. Examples of retorsion would be the severance of diplomatic or consular relations, suspension of air, sea, land or other means of transport or the withdrawal of voluntary aid programmes.[2]
2731  Belligerent reprisals are measures taken in the context of an international armed conflict by a Party in reaction to a violation of international humanitarian law by an adversary.[3] Such measures may not be carried out for the purpose of revenge or punishment, but only with the aim of putting an end to such violations and inducing the adversary to comply with the law.[4] Although the acts constituting belligerent reprisals are in principle unlawful, their wrongfulness is precluded because of the particular circumstances in which they are taken, i.e. in response to a violation committed by an adversary.[5]
2732  Furthermore, reprisals may be carried out only as a measure of last resort, when no other lawful measures are available to induce the adversary to respect the law.[6] Reprisals must cease as soon as the adversary again complies with the law.[7] Lastly, it is largely recognized that reprisal action must be proportionate to the violation it aims to stop.[8] Case law from the Second World War and the ICTY rejected the claim that clearly disproportionate actions in response to the original violation could amount to lawful reprisals.[9]
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B. Historical background
2733  Belligerent reprisals have constituted the most important means of coercion available to States, in particular in the conduct of hostilities.[10] The availability of reprisals may persuade an adversary not to commit violations of the law in the first place, and in general, the threat of reprisal is also seen as an important deterrent in international law.[11]
2734  Various attempts to consolidate and develop the legal regime applicable to reprisals in the context of the international law of armed conflict were undertaken without reaching the stage of adopting treaty rules.[12] Mention should be made of the draft submitted by Russia at the Brussels Conference of 1874,[13] and the Oxford Manual adopted by the Institute of International Law in 1880.[14] The Peace Conferences held in The Hague in 1899 and 1907 adopted the two successive versions of the Convention respecting the Laws and Customs of War on Land, with annexes. However, they did not address the question of reprisals.[15] Belligerent reprisals were then an accepted feature of the law of war, and their regulation or prohibition was not attainable at the time.[16]
2735  During the First World War, reprisals greatly worsened the fate of victims. In 1916, the ICRC put forward the idea of prohibiting all reprisals against prisoners of war.[17] This initiative succeeded in 1929 with the adoption of Article 2 of the 1929 Geneva Convention on Prisoners of War. In contrast, the 1929 Geneva Convention on the Wounded and Sick is silent on the question of reprisals. Article 2 of the 1929 Convention on Prisoners of War was the first treaty-law provision limiting the category of persons against which reprisals can be taken. This provision did not prevent all reprisals against prisoners of war during the Second World War, though most reprisals or alleged reprisals were committed against the civilian population in occupied territories.[18]
2736  A Commission of Experts was convened by the ICRC in 1937 to study the revision of the 1929 Geneva Convention on the Wounded and Sick. The Commission was of the opinion that a revision of that Convention should include a clause prohibiting reprisals, not only against the wounded and sick and medical personnel, but also, by a logical extension, against material and property intimately bound up with the safeguarding of those concerned.[19] In 1947, the Conference of Government Experts reaffirmed the ‘impossibility of admitting that unoffending and defenceless men should be held indirectly responsible for acts committed by their home Governments’.[20]
2737  The Conference accepted the ICRC’s proposal to include a prohibition of reprisals in all four draft conventions.[21] The 1949 Diplomatic Conference followed that recommendation without much discussion.[22] The Conference decided to outlaw the taking of reprisals against certain categories of persons and property and at the same time to provide for alternative methods of compliance, such as the institution of Protecting Powers,[23] the conciliation procedure,[24] the obligation to punish persons responsible for grave breaches,[25] and the enquiry procedure.[26]
2738  Measures of reprisal often affect persons not involved in the original violation and could be regarded as contrary to the principle that no one may be punished for an act that he or she has not personally committed; belligerent reprisals often amount to a collective punishment.
2739  Since 1949, belligerent reprisals have not been resorted to widely.[27] No recent examples of belligerent reprisals against persons or property protected under the First Convention could be found. Belligerent reprisals against civilians and civilian objects were resorted to during the Iran-Iraq war, but these reprisals were not covered by the prohibition contained in the Geneva Conventions.[28] The reticence of States to resort to reprisals can be explained by the fact that they are mostly regarded as an ineffective means of enforcement, in particular because reprisals risk leading to an escalation of violence through repeated reprisals and counter-reprisals.[29]
2740  In treaty law, the trend that began in 1929 towards outlawing the use of reprisals against certain persons and property protected under the Geneva Conventions[30] continued by States Party to Additional Protocol I, with the extension of this prohibition to all civilians, civilian objects, cultural objects and places of worship, objects indispensable to the survival of the civilian population, the natural environment, and works and installations containing dangerous forces.[31]
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C. Discussion
2741  Article 46 prohibits the taking of belligerent reprisals against the wounded, the sick and personnel, buildings or equipment protected under the First Convention. Recourse to reprisals would expose protected persons on all sides of an armed conflict to the risk of rapid and disastrous increases in the severity of measures taken against them.
2742  The persons protected under the First Convention are listed in Article 13 (the wounded and sick), Article 15 (the dead), Article 24 (medical and religious personnel attached to the armed forces), Article 25 (auxiliary medical personnel), Article 26 (personnel of aid societies) and Article 27 (medical personnel of societies of neutral countries).[32]
2743  Article 46 is innovative in that it also explicitly forbids the taking of reprisals against buildings or equipment protected by the Convention. The First Convention does not define the concept of protected property as such. It contains a list of objects which cannot be attacked, destroyed or appropriated. Such properties are listed in Articles 19, 33 and 34 (fixed medical establishments and mobile medical units), Article 20 (hospital ships) and Articles 35 and 36 (means of medical transport, including medical aircraft). On the basis of Article 46, such property cannot be made the object of reprisals.[33]
2744  The prohibition of reprisals against persons or property protected under this Convention is absolute. It applies in all circumstances.[34] The possibility to derogate from this rule by invoking military necessity is excluded.[35]
2745  This prohibition applies to all forms of reprisals against protected persons or property, including those which would be of the same nature as the initial offence to which it responds. A party to the conflict might be tempted to respond to an offence by taking identical or similar action. Article 46 prohibits such recourse to reprisals against protected persons or property.
2746  Furthermore, Article 46 prohibits all forms of reprisals, and does not limit itself to measures which would amount to an attack against protected persons or property. It also includes measures which would consist of omissions by States to perform particular acts, such as omitting to provide medical assistance and care to the wounded or sick,[36] or to ensure proper burial of the dead.[37]
2747  Furthermore, the 1969 Vienna Convention on the Law of Treaties provides that the possibilities for suspension or termination of a treaty in case of material breach[38] of the treaty by a State Party ‘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’.[39] This article does not apply retroactively to Article 46 of the First Convention.[40] However, the object of this provision is a clear reaffirmation of the prohibition of reprisals against protected persons in all circumstances and the non-opposability of the suspension or termination of the treaty in case of a material breach.[41] The prohibition contained in Article 46 being absolute, it is clear that a material breach of the Geneva Conventions might lead a State to denounce them, but does not give them the right to direct reprisals against persons or property protected under the Geneva Conventions.
2748  The prohibition contained in Article 46 is well established and has been largely respected since 1949. States have outlawed the use of belligerent reprisals against certain categories of persons or property in the 1949 Geneva Conventions and Additional Protocol I, but have refrained from banning belligerent reprisals altogether. The provisions of the Geneva Conventions, along with those of Additional Protocol I, have had the effect of substantially reducing the scope for lawful belligerent reprisals. For States party to those instruments, the only potential objects of belligerent reprisals not protected by a specific treaty provision are military objectives and members of the enemy’s armed forces who have neither surrendered nor been incapacitated.[42]
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Select bibliography
Albrecht, A.R., ‘War Reprisals in the War Crimes Trials and in the Geneva Conventions of 1949’, American Journal of International Law, Vol. 47, No. 4, October 1953, pp. 590–614.
Almond, Harry H., Jr. and Kalshoven, Frits, ‘Reprisals: the Global Community is not yet Ready to Abandon Them’, Proceedings of the Annual Meeting of the American Society of International Law, Vol. 74, April 1980, pp. 196–202.
Barsalou, Olivier, ‘The History of Reprisals Up to 1945: Some Lessons Learned and Unlearned for Contemporary International Law’, The Military Law and the Law of War Review, Vol. 49, Nos 3–4, 2010, pp. 335–371.
Bierzanek, Remiguisz, ‘Reprisals in Armed Conflicts’, Syracuse Journal of International and Comparative Law, Vol. 14, 1988, pp. 829–843.
Darcy, Shane, ‘The Evolution of the Law of Belligerent Reprisals’, Military Law Review, Vol. 175, March 2003, pp. 184–251.
De Hemptinne, Jérôme, ‘Prohibition of Reprisals’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 576–596.
Greenwood, Christopher, ‘Reprisals and Reciprocity in the New Law of Armed Conflict’, in Michael A. Meyer (ed.), Armed conflict and the New Law: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention, British Institute of International and Comparative Law, London, 1989, pp. 227–250.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, available at https://www.icrc.org/customary-ihl/eng/docs/v1.
Kalshoven, Frits, Belligerent Reprisals, 2nd edition, Martinus Nijhoff Publishers, Leiden, 2005.
Kwakwa, Edward, ‘Belligerent Reprisals in the Law of Armed Conflict’, Stanford Journal of International Law, Vol. 27, No. 1, Fall 1990, pp. 49–81.
Yk, Brian Sang, ‘Legal Regulation of Belligerent Reprisals in International Humanitarian Law: Historical Development and Present Status’, African Yearbook on International Humanitarian Law, 2012, pp. 134–184.

1 - For more details on the concept of countermeasures, see the commentary on the 2001 Draft Articles on State Responsibility, pp. 128–139.
2 - See the definition of ‘retorsion’ given by the ILC, ibid. p. 128.
3 - In this commentary, the word ‘reprisal’ is used as a synonym for ‘belligerent reprisal’. For the applicability of this concept in non-international armed conflict, see the commentary on common Article 3, section M.6.
4 - Reprisals should therefore be directed at the adversary who violated international humanitarian law, and may not be directed against allies of the State which committed the violation. See Henckaerts/Doswald-Beck, commentary on Rule 145, p. 513: ‘There is limited practice allowing reprisals against allies of the violating State but it dates back to … 1930 and to the Second World War. Practice since then appears to indicate that resort to such reprisals is no longer valid.’
5 - See ibid. p. 513. For the historical background on the evolution of the concept of reprisals, see Barsalou, pp. 335–347; Kwakwa, pp. 52–58; and Kalshoven.
6 - See the case law, mainly for the Second World War, in Henckaerts/Doswald-Beck, commentary on Rule 145, p. 516. See also Greenwood, p. 232; Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, 1987, para. 3457; and Darcy, pp. 193–194. In Kupreškić, the ICTY also stated that reprisals may be carried out only after a warning to the adverse Party requiring cessation of the violation has remained unheeded; see Kupreškić Trial Judgment, 2000, para. 535, and Martić Trial Judgment, 2007, para. 466.
7 - This aspect was already included in the 1880 Oxford Manual and appears consistently in military manuals, official statements and State practice. See Henckaerts/Doswald-Beck, commentary on Rule 145, p. 518.
8 - Ibid. p. 517. It has been stated that, ‘[R]eprisals should exceed neither what is proportionate to the prior violation nor what is necessary if they are to achieve their aims’; Greenwood, pp. 230–231.
9 - See Italy, Military Tribunal of Rome, Kappler case, Judgment, 1948; Military Tribunal of Rome, Hass and Priebke case, Judgment in Trial of First Instance, 1997, Section 4; Netherlands, Special Court (War Criminals) at The Hague, Rauter case, Judgment, 1948, pp. 129–138; and United States, Military Tribunal at Nuremberg, Hostages case, Judgment, 1948, p. 61. See also Special Arbitral Tribunal, Naulilaa case, 1928, pp. 1025–1028, as well as ICTY, Kupreškić Trial Judgment, 2000, para. 535, and Martić Trial Judgment, 2007, paras 466–468.
10 - Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, 1987, para. 3428.
11 - On these issues, see Kwakwa, pp. 74–75.
12 - See Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, 1987, para. 3432.
13 - See the detailed historical account of this issue by Kalshoven, pp. 45–51. The proposal to adopt an article on reprisal was not accepted by the government experts.
14 - Ibid. pp. 51–55. See, in particular, Oxford Manual (1880), Articles 85 and 86.
15 - Kalshoven, pp. 56–66. Neither of these conferences made any major contribution to the clarification of the concept of belligerent reprisals. However, they touched upon the concept of collective punishment contained in Article 50 of the 1899 and 1907 Hague Regulations.
16 - Kalshoven, p. 51.
17 - Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, 1987, para. 3434. See the ICRC’s 1916 appeal in Report of the International Committee of the Red Cross on its Activities During the Second World War, September 1, 1939–June 30, 1947, Volume I: General Activities, ICRC, Geneva, 1948, pp. 365–372; see also Kalshoven, pp. 69–73.
18 - For instances of reprisals against prisoners of war, see Kalshoven, pp. 178–200. See also Darcy, p. 198, and United States, Military Commission at Rome, Dostler case, Judgment, 1945. For examples of reprisals against the civilian population of occupied territories, see Kalshoven, pp. 200–210.
19 - See ICRC, Report on the Interpretation, Revision and Extension of the Geneva Convention of July 27, 1929, Report prepared for the 16th International Conference of the Red Cross, London, 1938, pp. 32–33.
20 - See Report of the Conference of Government Experts of 1947, p. 118.
21 - Ibid. p. 275 and Pictet (ed.) Commentary on the First Geneva Convention, ICRC, 1952, pp. 343–344.
22 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 183–184 and 199, and Kalshoven, pp. 263–272.
23 - See Articles 8 and 10.
24 - See Article 11.
25 - See Article 49.
26 - For the enquiry procedure, see Article 52. These mechanisms have so far remained rather ineffective as alternative methods of compliance. See Greenwood, pp. 238–239; Kwakwa, pp. 76–79; and Darcy, pp. 249–250. Under Additional Protocol I, an International Fact-Finding Commission was established, but it too has yet to be invoked by Parties to an armed conflict.
27 - For some illustrations of the use of belligerent reprisals in the Vietnam War, in the DRC in 1964, or during the armed conflict in Israel-occupied Arab territory, see Kalshoven, pp. 289–321.
28 - See Henckaerts/Doswald-Beck, commentary on Rule 145, pp. 513 and 519. During the Iran-Iraq war, numerous attacks on civilian objects were reported. In 1984, in a message addressed to the Presidents of the Islamic Republic of Iran and the Republic of Iraq, the UN Secretary-General stated that he was profoundly distressed on learning of the heavy civilian casualties caused by the aerial attack on the town of Banesh on 5 June 1984, … and the retaliatory and counter-retaliatory attacks that followed on towns in Iran and Iraq. Deliberate military attacks on civilian areas cannot be condoned by the international community. The initiation of such attacks in the past, and the reprisals and counter-reprisals they provoke, have resulted in mounting loss of life and suffering to innocent and defenceless civilian populations. It is imperative that this immediately cease. UN Secretary-General, Message dated 9 June 1984 addressed to the Presidents of the Islamic Republic of Iran and the Republic of Iraq, UN Doc. S/16611, 11 June 1984.
29 - See Henckaerts/Doswald-Beck, commentary on Rule 145, p. 514, and Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, 1987, para. 3433.
30 - See also Second Convention, Article 47; Third Convention, Article 13; and Fourth Convention, Article 33.
31 - See Additional Protocol I, Articles 51(6), 52(1), 53(c), 54(4), 55(2) and 56(4). See also Additional Protocol I, Article 20, which prohibits reprisals against persons and objects protected by Part II of Additional Protocol I.
32 - See the commentaries on these articles. However, if such protected persons committed acts harmful to the enemy, they would lose their protection and could, as a result, be the object of attack; see the commentary on Article 24, section F.
33 - However, if such property were used to commit acts harmful to the enemy, it would lose its protection against attacks for the time that it is so used; see the commentary on Articles 21 and 22.
34 - For the applicability of the concept of reprisals in non-international armed conflict, see the commentary on common Article 3, section M.6.
35 - On this issue, see Albrecht, pp. 611–612, who concludes that: ‘[T]he history of the provisions also shows that their object was to prevent reprisals against the enumerated categories of persons and property under all conditions. … The Conventions of 1949 must be held to admit of no exception by way of reprisals.’
36 - Pursuant to Article 12 of the First Convention.
37 - Pursuant to Article 17 of the First Convention.
38 - A material breach of a treaty is ‘the violation of a provision essential to the accomplishment of the object or purpose of the treaty’; Vienna Convention on the Law of Treaties (1969), Article 60(3).
39 - Ibid. Article 60(5).
40 - See ibid. Article 4 on the non-retroactivity of the provisions of that Convention.
41 - See the proposal made by Switzerland and the motivation behind the inclusion of Article 60(5) in Official Records of the United Nations Conference on the Law of Treaties, First Session, UN Doc. A/CONF.39/C.1/SR.61, in particular pp. 354–359.
42 - This is without prejudice to the small number of States which made reservations and declarations to Articles 51–55 of Additional Protocol I. For a commentary on these reservations and declarations, see Henckaerts/Doswald-Beck, commentary on Rule 146, p. 521.