United States of America
Practice Relating to Rule 145. Reprisals
Section D. Order at the highest authority of government
The US Field Manual (1956) stipulates:
When and how employed
. Reprisals are never adopted merely for revenge, but only as an unavoidable last resort to induce the enemy to desist from unlawful practices. They should never be employed by individual soldiers except by direct orders of a commander, and the latter should give such orders only after careful inquiry into the alleged offence. The highest accessible military authority should be consulted unless immediate action is demanded, in which event a subordinate commander may order appropriate reprisals upon his own initiative. Ill-considered action may subsequently be found to have been wholly unjustified and will subject the responsible officer himself to punishment for a violation of the law of war. On the other hand, commanders must assume responsibility for retaliative measures when an unscrupulous enemy leaves no other recourse against repetition of unlawful acts.
The US Air Force Pamphlet (1976) states:
In order to be considered a reprisal, an act must have the following characteristics when employed:
(8) It must be authorized by national authorities at the highest political level and entails full state responsibility.
The US Air Force Commander’s Handbook (1980) states: “A decision to violate the law in reprisal for enemy violations must be taken at the highest levels of the US government”.
The Handbook further states: “Only the national command authorities may authorize the execution of reprisals or other reciprocal violations of the law of armed conflict by US armed forces.”
The US Instructor’s Guide (1985) states: “The individual soldier must never decide to make a reprisal. The decision to make a reprisal must be made at the highest command level.”
The US Naval Handbook (1995) provides: “To be valid, a reprisal action must conform to the following criteria: 1. Reprisal must be ordered by an authorized representative of the belligerent government.” It adds: “The President alone may authorize the taking of reprisal action by U.S. Forces.”
The Annotated Supplement to the US Naval Handbook (1997), in a part dealing with the necessity for the United States that the President alone may authorize the taking of reprisal action by US forces, states that there is “always the risk that it will trigger retaliatory escalation (counter-reprisals) by the enemy”. It adds:
Other factors which governments will usually consider before taking of reprisals include the following:
1. Reprisals may have an adverse influence on the attitudes of governments not participating in an armed conflict.
2. Reprisals may only strengthen enemy morale and underground resistance.
3. Reprisals may only lead to counter-reprisals by an enemy, in which case the enemy’s ability to retaliate is an important factor.
4. Reprisals may render enemy resources less able to contribute to the rehabilitation of an area after the cessation of hostilities.
5. The threat of reprisals may be more effective than their actual use.
6. Reprisals, to be effective, should be carried out speedily and should be kept under control. They may be ineffective if random, excessive, or prolonged.
7. In any event, the decision to employ reprisals will generally be reached as a matter of strategic policy. The immediate advantage sought must be weighed against the possible long-range military and political consequences.
In addition to the legal requirements which regulate resort to reprisals, there are various practical factors which governments will consider before taking reprisals. For example, when appeal to the enemy for redress has failed, it may be a matter of policy to consider before resorting to reprisals, whether the opposing forces are not more likely to be influenced by a steady adherence to the law of armed conflict.
The US Naval Handbook (2007) states: “To be valid, a reprisal action must conform to the following criteria: 1. Reprisal must be ordered by an authorized representative of the belligerent government.”
The Handbook also states:
The President alone may authorize the taking of a reprisal action by U.S. forces. Although reprisals are lawful when the foregoing requirements are met, there is always the risk that such reprisals will trigger counter-reprisals by the enemy. The United States has historically been reluctant to resort to reprisal for just this reason.