Practice Relating to Rule 146. Reprisals against Protected Persons

The persons protected by the Geneva Conventions (… prisoners of war …) … may not be made the object of reprisals. Therefore, [reprisals] may be directed only against combatants, non-protected property and a restricted group of non-protected civilians. 

4. Reprisals against the following categories of persons and objects are prohibited:

5. Reprisals are permitted against combatants and against objects constituting military objectives. 

No reprisals will be taken against PWs [prisoners of war] or detainees … CF [Canadian Forces] personnel will treat detained persons properly regardless of how CF personnel may have been treated while in the hands of opposing forces. 

Customary law regarded measures of reprisal taken by a belligerent party as one of the lawful means intended to enforce the application of the law.

However, since these measures often lead to an escalation of the violence and generally strike persons who are not the true culprits, the law of reprisals of belligerent parties has progressively been restricted. Thus, reprisal measures against protected persons and objects are the subject of an express prohibition in the four 1949 Geneva Conventions. 

Reprisals against prisoners of war are prohibited. Prisoners of war are entitled to respect for their persons and their honour. The paramount requirement here is a ban on killing, wounding or endangering prisoners of war. 

In the history of warfare, reprisals carried out have often exceeded the set limits. This has led to the current prohibition, in the humanitarian law of war and specifically in AP I [1977 Additional Protocol I], of reprisals against several groups of people and objects.

The following are now forbidden as reprisals:

Since prisoners of war are in the Power of the Detaining Power, they are among the easiest victims for reprisal action and are, of themselves, unable to affect the conduct of their national government. The [1907 Hague Regulations] made no reference to this matter and during World War I prisoners were often made the object of reprisals. The ban on such action first appeared in the 1929 Geneva Convention on Prisoners of War, Art. 2. In accordance with the provisions of [the 1977 Additional Protocol I], reprisals are forbidden against all persons who are hors de combat, as well as against protected objects, the destruction of which would primarily affect such persons. During World War II the Germans fettered British prisoners of war claiming it as a reprisal for a raid on Sark in 1942, when five German captives had their hands tied so that they could be linked to their captors while being escorted to the boats of the raiding party. During the Dieppe raid, the Germans captured a Canadian order authorising the tying of prisoners’ hands, the Germans protested about the order, which was subsequently described as unauthorised and countermanded. 

The fundamental norms/val[u]es which underlie the LOAC [law of armed conflict] are:

…

- Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They must be protected against all acts of violence and retaliation. 

…

- The LOAC prohibits reprisals against the following:

Under Additional Protocol I, reprisals are permitted only against military personnel. A state acceding to Additional Protocol I thereby accepts a limitation of its freedom to employ reprisals. The [Swedish International Humanitarian Law] Committee believes that this involves a considerable humanitarian advance. 

Measures of reprisal against prisoners of war are prohibited. This prohibition is of an absolute character, so that reprisals against prisoners of war are prohibited even if intended to be adopted as a measure of retaliation against the violation of provisions of [the 1949 Geneva Convention III] by the other party. Reprisals against such violations of the Convention are permissible, but they must not be directed against prisoners of war or any other persons protected by the 1949 Conventions. 

Reprisals against the persons or property of prisoners of war, including the wounded and sick, … are forbidden … However, reprisals may still be visited on enemy troops who have not yet fallen into the hands of the forces making the reprisals. 

Reprisals against prisoners of war are prohibited … No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. 

Reprisals are forbidden, under all circumstances, against the persons or objects referenced above in accordance with the 1949 Geneva Conventions. At least some, and possibly all, of these prohibitions are regarded as customary law and are binding regardless of whether the adversary is a party to the Geneva Conventions. For definitions as to persons or objects protected under the 1949 Geneva Conventions, applicable articles of those documents must be consulted. 

Under the 1949 Geneva Conventions, reprisals may not be directed against … prisoners of war. (The reprisals against British prisoners of war that the United States threatened during the Revolution would thus be illegal today, though at the time, reprisals against PWs [prisoners of war] were lawful.) 

The following measures are expressly prohibited by the law of war and are not excusable on the basis of military necessity:

In light of the wide acceptance of the 1949 Geneva Conventions by the nations of the world today, this prohibition is part of customary law … The taking of prisoners by way of reprisal for acts previously committed (so-called “reprisal prisoners”) is likewise forbidden. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

A commander who causes serious harm to lawful enemy belligerents who have fallen into his power … by not according them the treatment prescribed by law or by international agreements or who resorts to reprisals, shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years. 

Reprisals are prohibited against protected persons and objects according to the Geneva Conventions of 1949 and their additional Protocols. This prohibition of reprisal is absolute and applies to the use of all weapons. In consequence, the protected persons and objects can never become targets of any attack, including nuclear attacks. The provisions of the Conventions and the Protocols carrying this prohibition of reprisals against protected persons and objects are considered declaratory of customary law. 

To be lawful, a belligerent reprisal must meet two conditions. First, it must not be directed against persons or objects against which the taking of reprisals is specifically prohibited … The Geneva Conventions of 1949 prohibit the taking of reprisals against persons or objects protected by the Conventions. 

In international armed conflicts to which the four Geneva Conventions and Additional Protocol I apply, lawful reprisals … must be directed exclusively against combatants or other military objectives subject to the limitations contained in the Geneva Conventions, Protocol I and customary international law of armed conflicts. In international armed conflicts where Additional Protocol I does not apply, reprisals may be directed against a much wider category of persons and objects, but subject to the limitations of customary international law of armed conflicts. 

the international community has consistently demanded humane treatment for prisoners of war, including identification and accounting for all prisoners, provision of an adequate diet and medical care, authorization for prisoners to communicate with each other and with the exterior, the prompt repatriation of seriously sick or wounded prisoners, and protection at all times from physical and mental torture, abuse and reprisals. 

The persons protected by the Geneva Conventions (wounded and sick, shipwrecked …) … may not be made the object of reprisals. Therefore, [reprisals] may be directed only against combatants, non-protected property and a restricted group of non-protected civilians. 

Reprisals against the following categories of persons and objects are prohibited:

4. Reprisals against the following categories of persons and objects are prohibited.

5. Reprisals are permitted against combatants and against objects constituting military objectives. 

Customary law regarded measures of reprisal taken by a belligerent party as one of the lawful means intended to enforce the application of the law.

However, since these measures often led to an escalation of the violence and generally struck persons who were not the true culprits, the law of reprisals of belligerent parties has progressively been restricted. Thus, reprisal measures against protected persons and objects are the subject of an express prohibition in the four 1949 Geneva Conventions. 

In the history of warfare, reprisals carried out have often exceeded the set limits. This has led to the current prohibition, in the humanitarian law of war and specifically in AP I [1977 Additional Protocol I], of reprisals against several groups of people and objects.

The following are now forbidden as reprisals:

Reprisal measures against the wounded, sick, medical and religious personnel, medical units and medical means of transport, and in short, against all protected persons and property, are prohibited. 

Reprisals against the following categories of persons and objects are prohibited: a) the wounded, sick … protected by [Article 46 of the 1949 Geneva Convention I]; b) the wounded, sick and shipwrecked persons … protected by [Article 47 of the 1949 Geneva Convention II]. 

Under Additional Protocol I, reprisals are permitted only against military personnel. A state acceding to Additional Protocol I thereby accepts a limitation of its freedom to employ reprisals. The [Swedish International Humanitarian Law] Committee believes that this involves a considerable humanitarian advance. 

Reprisals against the persons or property of prisoners of war, including the wounded and sick, … are forbidden … However, reprisals may still be visited on enemy troops who have not yet fallen into the hands of the forces making the reprisals. 

Reprisals against the wounded [and] sick … protected by [the 1949 Geneva Convention I] are prohibited …

Reprisals against the wounded, sick and shipwrecked persons … protected by [the 1949 Geneva Convention II] are prohibited …

No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. 

Reprisals are forbidden, under all circumstances, against the persons or objects referenced above in accordance with the 1949 Geneva Conventions. At least some, and possibly all, of these prohibitions are regarded as customary law and are binding regardless of whether the adversary is a party to the Geneva Conventions. For definitions as to persons or objects protected under the 1949 Geneva Conventions, applicable articles of those documents must be consulted. 

The following measures are expressly prohibited by the law of war and are not excusable on the basis of military necessity:

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

A commander who causes serious harm … to the sick, wounded or shipwrecked, by not according them the treatment prescribed by law or by international agreements, or who resorts to reprisals, shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years. 

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

…

The accused’s position is stated to be that this Court has no jurisdiction to try him.

…

… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

…

On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

…

The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

…

… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

…

To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

…

Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

…

I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

…

It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

…

In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

…

To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

…

According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

…

I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

…

Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

The Arab Republic of Egypt, while declaring its commitment to respecting all the provisions of Additional Protocols I and II, wishes to emphasize, on the basis of reciprocity, that it upholds the right to react against any violation by any party of the obligations imposed by Additional Protocols I and II with all means admissible under international law in order to prevent any further violation. 

Reprisals are prohibited against the wounded, sick and shipwrecked … The prohibition applies in respect of all weapons. In consequence, they (i.e. protected persons and objects) can never become targets of any attack, including nuclear attacks. 

Reprisals are prohibited against protected persons and objects according to the Geneva Conventions of 1949 and their additional Protocols. This prohibition of reprisal is absolute and applies to the use of all weapons. In consequence, the protected persons and objects can never become targets of any attack, including nuclear attacks. The provisions of the Conventions and the Protocols carrying this prohibition of reprisals against protected persons and objects are considered declaratory of customary law. 

The Federal Republic of Germany will react against serious and systematic violations of the obligations imposed by Additional Protocol I … with all means admissible under international law in order to prevent any further violation. 

8. [The delegate of Malaysia] said that …

…

10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …

11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … [w]here vessels were captured, the protections provided in the Second and Fourth Geneva Conventions of 1949 and [the 1977 Additional] Protocol I continued to apply to the persons on board the vessels. 

During hostilities, it is forbidden to resort to reprisals against … the injured [and] the infirm … The prohibition applies in respect of all weapons, including nuclear weapons. This rule had previously been established in a general manner by Art. 60(5) of the 1969 Vienna Convention of the Law of Treaties … A similar provision is set forth in paragraph 7 of the UN General Assembly resolution 2675 (XXV) … The prohibition of reprisals in these situations appears also in Principle 1, paragraph 6 of UN General Assembly resolution 2625 (XXV) on friendly relations. Even if, in that case, it relates to jus ad (or contra) bellum rather than jus in bello, it is nonetheless applicable to the second. It follows from the above that reprisals can, in no circumstances, be lawful against this category of targets. 

To be lawful, a belligerent reprisal must meet two conditions. First, it must not be directed against persons or objects against which the taking of reprisals is specifically prohibited … The Geneva Conventions of 1949 prohibit the taking of reprisals against persons or objects protected by the Conventions. 

Reprisals against the following categories of persons and objects are specifically prohibited: (a) The wounded [and] sick … protected by the First Geneva Convention …; (b) The wounded, sick and shipwrecked persons … protected by the Second Geneva Convention. 

In international armed conflicts to which the four Geneva Conventions and Additional Protocol I apply, lawful reprisals … must be directed exclusively against combatants or other military objectives subject to the limitations contained in the Geneva Conventions, Protocol I and customary international law of armed conflicts. In international armed conflicts where Additional Protocol I does not apply, reprisals may be directed against a much wider category of persons and objects, but subject to the limitations of customary international law of armed conflicts. 

Reprisals against the following categories of persons and objects are prohibited:

4. Reprisals against the following categories of persons and objects are prohibited.

5. Reprisals are permitted against combatants and against objects constituting military objectives. 

Customary law regarded measures of reprisal taken by a belligerent party as one of the lawful means intended to enforce the application of the law.

However, since these measures often led to an escalation of the violence and generally struck persons who were not the true culprits, the law of reprisals of belligerent parties has progressively been restricted. Thus, reprisal measures against protected persons and objects are the subject of an express prohibition in the four 1949 Geneva Conventions. 

[T]he protection [against reprisals in the context of armed conflict] extends also to the personnel of hospitals and mobile hospital units of any type, as well as to religious personnel, according to art. 20 of Add. Protocol I of 1977. 

Reprisals against the following categories of persons and objects are prohibited:

…

- The LOAC prohibits reprisals against the following:

Under Additional Protocol I, reprisals are permitted only against military personnel. A state acceding to Additional Protocol I thereby accepts a limitation of its freedom to employ reprisals. The [Swedish International Humanitarian Law] Committee believes that this involves a considerable humanitarian advance. 

Reprisals against the … personnel … protected by [the 1949 Geneva Convention I] are prohibited …

Reprisals against … the persons protected by [the 1949 Geneva Convention II] are prohibited …

No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. 

Reprisals are forbidden, under all circumstances, against the persons or objects referenced above in accordance with the 1949 Geneva Conventions. At least some, and possibly all, of these prohibitions are regarded as customary law and are binding regardless of whether the adversary is a party to the Geneva Conventions. For definitions as to persons or objects protected under the 1949 Geneva Conventions, applicable articles of those documents must be consulted. 

The following measures are expressly prohibited by the law of war and are not excusable on the basis of military necessity:

The Armed Forces of [the] Azerbaijan Republic, the appropriate authorities and governmental bodies, as an answer to the same actions of the adverse party to the conflict or to put an end to these all, don’t give opportunity to carry out any action which is considered to be [a] measure of pressure concerning … medical organizations and their personnel … During military operations in the condition of final necessity the measures taken compulsorily by the Armed Forces of [the] Azerbaijan Republic can’t be considered as such measures of pressure. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

…

The accused’s position is stated to be that this Court has no jurisdiction to try him.

…

… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

…

On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

…

The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

…

… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

…

To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

…

Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

…

I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

…

It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

…

In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

…

To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

…

According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

…

I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

…

Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

The Arab Republic of Egypt, while declaring its commitment to respecting all the provisions of Additional Protocols I and II, wishes to emphasize, on the basis of reciprocity, that it upholds the right to react against any violation by any party of the obligations imposed by Additional Protocols I and II with all means admissible under international law in order to prevent any further violation. 

Reprisals are prohibited against … medical services and personnel … The prohibition applies in respect of all weapons. In consequence, they (i.e. protected persons and objects) can never become targets of any attack, including nuclear attacks. 

Reprisals are prohibited against protected persons and objects according to the Geneva Conventions of 1949 and their additional Protocols. This prohibition of reprisal is absolute and applies to the use of all weapons. In consequence, the protected persons and objects can never become targets of any attack, including nuclear attacks. The provisions of the Conventions and the Protocols carrying this prohibition of reprisals against protected persons and objects are considered declaratory of customary law. 

Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I … with all means admissible under international law in order to prevent any further violation. 

During hostilities, it is forbidden to resort to reprisals against medical installations, transportation and units … The prohibition applies in respect of all weapons, including nuclear weapons. This rule had previously been established in a general manner by Art. 60(5) of the 1969 Vienna Convention of the Law of Treaties … A similar provision is set forth in paragraph 7 of the UN General Assembly resolution 2675 (XXV) … The prohibition of reprisals in these situations appears also in Principle 1, paragraph 6 of UN General Assembly resolution 2625 (XXV) on friendly relations. Even if, in that case, it relates to jus ad (or contra) bellum rather than jus in bello, it is nonetheless applicable to the second. It follows from the above that reprisals can, in no circumstances, be lawful against this category of targets. 

To be lawful, a belligerent reprisal must meet two conditions. First, it must not be directed against persons or objects against which the taking of reprisals is specifically prohibited … The Geneva Conventions of 1949 prohibit the taking of reprisals against persons or objects protected by the Conventions. 

In international armed conflicts to which the four Geneva Conventions and Additional Protocol I apply, lawful reprisals … must be directed exclusively against combatants or other military objectives subject to the limitations contained in the Geneva Conventions, Protocol I and customary international law of armed conflicts. In international armed conflicts where Additional Protocol I does not apply, reprisals may be directed against a much wider category of persons and objects, but subject to the limitations of customary international law of armed conflicts.  

The persons protected by the Geneva Conventions (… civilians) … may not be made the object of reprisals. Therefore, [reprisals] may be directed only against combatants, non-protected property and a restricted group of non-protected civilians. 

[The 1949 Geneva Convention IV] prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination. This prohibition applies not only to murder, torture, corporal punishment, mutilation or medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other form of brutality, whether applied by civilians or by military personnel. The following are expressly prohibited:

…

3. The following measures of population control are forbidden at all times:

4. Reprisals against the following categories of persons and objects are prohibited.

5. Reprisals are permitted against combatants and against objects constituting military objectives. 

Lesson 2. Protection

…

Geneva Convention IV prohibits using the civilian population as a shield …

Pillage, hostage-taking and reprisal measures against civilians are equally prohibited.

…

Lesson 3. Obligations and responsibilities

…

III.1. Collective responsibility

…

Customary law regarded measures of reprisal taken by a belligerent party as one of the lawful means intended to enforce the application of the law.

However, since these measures often led to an escalation of the violence and generally struck persons who were not the true culprits, the law of reprisals of belligerent parties has progressively been restricted. Thus, reprisal measures against protected persons and objects are the subject of an express prohibition in the four 1949 Geneva Conventions. 

In the history of warfare, reprisals carried out have often exceeded the set limits. This has led to the current prohibition, in the humanitarian law of war and specifically in AP I [1977 Additional Protocol I], of reprisals against several groups of people and objects.

The following are now forbidden as reprisals:

- attacks on the civilian population or civilians. 

The fundamental norms/val[u]es which underlie the LOAC [law of armed conflict] are:

…

- Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They must be protected against all acts of violence and retaliation. …

…

…

…

- Reprisals against protected persons and their property are prohibited. 

…

[1949] Geneva Convention IV articles 28 to 34 grant further protection to civilians. These articles determine the following:

…

…

- Collective penalties, intimidation or terrorism, pillage and reprisals are prohibited against protected persons.

…

…

…

The following prohibitions exist regarding conduct in occupied territories ([1949] Geneva Convention IV articles 31 to 34):

Protected persons may not be punished for actions they have not themselves performed. Collective punishment of a whole group is also prohibited. Also, the occupying power may not punish protected persons … in reprisal for some action directed against the occupying power. If disturbances occur, the occupant may not attempt to restore order by taking innocent persons hostage. 

Foreign civilians or civilians of an adverse party to a conflict are specifically protected under the law of armed conflict. If they are in the hands of a military unit, they must at all times be treated humanely. Any act of torture, physical or mental ill-treatment, degrading treatment or discrimination as well as measures of reprisal are prohibited.  [emphasis in original]

No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Reprisals against protected persons … are prohibited. 

Reprisals are forbidden, under all circumstances, against the persons or objects referenced above in accordance with the 1949 Geneva Conventions. At least some, and possibly all, of these prohibitions are regarded as customary law and are binding regardless of whether the adversary is a party to the Geneva Conventions. For definitions as to persons or objects protected under the 1949 Geneva Conventions, applicable articles of those documents must be consulted. Also, the prohibition in Article 33, [Geneva Convention IV], protecting civilians includes all those who … at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. (Article 4, [Geneva Convention IV]). 

Reprisals are forbidden to be taken against:

The Armed Forces of [the] Azerbaijan Republic, the appropriate authorities and governmental bodies, as an answer to the same actions of the adverse party to the conflict or to put an end to these all, don’t give opportunity to carry out any action which is considered to be [a] measure of pressure concerning civilian persons, medical organizations and their personnel, civilian objectives, civilian property … During military operations in the condition of final necessity the measures taken compulsorily by the Armed Forces of [the] Azerbaijan Republic can’t be considered as such measures of pressure. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

definitely cannot be seen as falling within the limited system of reprisals or collective punishments; a system which, in any case, refers to the conditions and procedures provided for in international law. However, it seems difficult to deny that systematic violence against the defenceless constitutes a completely unjustified corollary of a military operation carried out by German troops [which had the aim to combat the partisans]. 

[A commander states:] “[W]hen the troops suffer major casualties they force civilians to dig graves for the dead soldiers. As the civilians belong to the camp responsible for the casualties, once they are done with the digging, soldiers kill them. It is an act of anger. The soldiers that do this are the most unprivileged persons, the illiterate, [and] those who received no education about the war.” 

Reprisals are prohibited against protected persons and objects according to the Geneva Conventions of 1949 and their additional Protocols. This prohibition of reprisal is absolute and applies to the use of all weapons. In consequence, the protected persons and objects can never become targets of any attack, including nuclear attacks. The provisions of the Conventions and the Protocols carrying this prohibition of reprisals against protected persons and objects are considered declaratory of customary law. 

To be lawful, a belligerent reprisal must meet two conditions. First, it must not be directed against persons or objects against which the taking of reprisals is specifically prohibited … The Geneva Conventions of 1949 prohibit the taking of reprisals against persons or objects protected by the Conventions. 

In theory, an attempt might also be made to justify the use of chemical weapons in Afghanistan as a lawful reprisal against violations of the general laws of war by Afghan insurgents (such as the summary execution of Soviet prisoners). However, such an argument would face several serious problems. First, the prohibition in the [1925 Geneva Gas] Protocol and in customary international law apparently itself precludes use of chemical weapons in reprisal except in response to enemy use of weapons prohibited by the [1925 Geneva Gas] Protocol … Second, reprisals against the civilian population of occupied territories are expressly precluded by the law of war, and this would apply to reprisals against Afghan villages in areas occupied by Soviet forces. See Article 33 of [the 1949 Geneva Convention IV]. 

In international armed conflicts to which the four Geneva Conventions and Additional Protocol I apply, lawful reprisals … must be directed exclusively against combatants or other military objectives subject to the limitations contained in the Geneva Conventions, Protocol I and customary international law of armed conflicts. In international armed conflicts where Additional Protocol I does not apply, reprisals may be directed against a much wider category of persons and objects, but subject to the limitations of customary international law of armed conflicts. 

…

143. The Chamber further notes that reprisals against the civilian population as such, or individual civilians, are prohibited in all circumstances, regardless of the behaviour of the other party, since “no circumstances would legitimise an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party”.

…

151. In light of the foregoing, the Chamber is satisfied that there are substantial grounds to believe that the attack on Busurungi and surrounding villages on or about 9-10 May 2009 was launched by the FDLR with the aim of targeting both military objectives (FARDC positions in the village and surroundings) and the civilian population or individual civilians not taking direct part in the hostilities. The Chamber is further satisfied that the FDLR soldiers who took part in the attack were aware of the civilian status of the victims and intended to attack the civilian population or individual civilians not taking direct part in the hostilities since they were considered enemies. The Chamber therefore finds substantial grounds to believe that the war crimes of attacking civilians under article 8(2)(e)(i) of the [1998 ICC] Statute and murder under article 8(2)(c)(i) of the Statute were committed by the FDLR troops in Busurungi and surrounding villages on or about 9-10 May 2009.  [footnotes in original omitted]

4. Reprisals against the following categories of persons and objects are prohibited.

5. Reprisals are permitted against combatants and against objects constituting military objectives. 

The meaning of protected persons is not exclusively referring to the Geneva Conventions … but also referring to the customary sources, such as the moral values which are generally recognized and exist among the international community, and other Conventions … Reprisals against civilian[s] other than protected civilians under Geneva Convention IV [are] prohibited as far as they are not engage[d in] the conflict and [do] not violate the law[s] and customs of war. The civilian[s] other than protected civilians under Geneva Convention IV will [be] protected … as necessary. 

In the history of warfare, reprisals carried out have often exceeded the set limits. This has led to the current prohibition, in the humanitarian law of war and specifically in AP I [1977 Additional Protocol I], of reprisals against several groups of people and objects.

The following are now forbidden as reprisals:

…

[1977] Additional Protocol I article 51 also provides for the following specific prohibitions:

- Reprisal attacks against an adverse Party’s civilian population under that Party’s control.

…

…

- Reprisal attacks against an adverse Party’s civilian population under that Party’s control are prohibited. 

…

- The LOAC [law of armed conflict] prohibits reprisals against the following:

It may appear remarkable that not until the advent of the Additional Protocol was it possible to obtain general protection for civilians against reprisals. Protection for civilians in this respect remains inadequate, however, as long as the majority of states have not ratified the Protocol.

The [Swedish] International Humanitarian Law Committee considers that Article 51 can be of great importance in improving protection for civilian populations and civilian objects. It is of the greatest importance for the article to be applied in such a way that the intended humanitarian purpose is achieved as far as possible. 

Under Additional Protocol I, reprisals are permitted only against military personnel. A state acceding to Additional Protocol I thereby accepts a limitation of its freedom to employ reprisals. The [Swedish International Humanitarian Law] Committee believes that this involves a considerable humanitarian advance. 

The United Kingdom reserves the right to take proportionate reprisals against an enemy’s civilian population or civilian objects where the enemy has attacked our own civilians or civilian objects in violation of [the 1977 Additional Protocol I]. 

This means that reprisals taken in accordance with the statement are permissible by and against the United Kingdom. However, commanders and commanders-in-chief are not to take reprisal action on their own initiative. Requests for authority to take reprisal action must be submitted to the Ministry of Defence and require clearance at Cabinet level. 

The Armed Forces of [the] Azerbaijan Republic, the appropriate authorities and governmental bodies, as an answer to the same actions of the adverse party to the conflict or to put an end to these all, don’t give opportunity to carry out any action which is considered to be [a] measure of pressure concerning civilian persons, medical organizations and their personnel, civilian objectives, civilian property … During military operations in the condition of final necessity the measures taken compulsorily by the Armed Forces of [the] Azerbaijan Republic can’t be considered as such measures of pressure. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

Whoever, in time of war, armed conflict or occupation organizes, orders or engages in, against the civilian population and in violation of the rules of public international law and of international humanitarian conventions:

is punishable with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death. 

6. (1) No person may use or direct any mine, booby-trap or other device –

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

…

The accused’s position is stated to be that this Court has no jurisdiction to try him.

…

… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

…

On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

…

The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

…

… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

…

To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

…

Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

…

I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

…

It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

…

In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

…

To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

…

According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

…

I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

…

Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

2. Article 611 of the PC [Penal Code] effectively punishes

The appealed decision declared the termination of the proceedings … as it considered that the “facts [of] the case did not constitute an offence” … [H]owever, the proceedings carried out do not permit sharing the conclusions of the first instance tribunal; rather, the facts [denounced] merit being subsumed under the cited penal provisions and the aforementioned norms of International Humanitarian Law.  [emphasis in original]

He [the shadow Attorney-General] called in particular for a reservation on the prohibition on reprisals contained in the protocol. A reservation on reprisals would not be accepted by some countries. A reservation would operate reciprocally between Australia and a future enemy also party to the protocol. If we did that, it would reduce the level of protection afforded by the protocol to Australian civilians and civilian objects.

None of the 99 countries which have become party to the protocol have seen the need to make such a reservation – not one of them. The prohibition on reprisals in the protocol is not a total prohibition. Reprisals are prohibited against civilians, cultural objects and places of worship, objects indispensable to the survival of the civilian population, the environment, dams, dykes and nuclear electrical generating stations containing dangerous forces. The prohibition on reprisals represents an important development in protection of civilians against the horrors of modern warfare. 

Any toleration of the possibility of taking reprisals, especially against the civilian population, would be in radical conflict with the spirit and meaning of the Geneva Conventions … Furthermore, it would run counter to a number of resolutions of the United Nations General Assembly … Thus, any attempt to commit reprisals against the civilian population represented … a serious blow against the Geneva Conventions, [Additional] Protocol I … and a whole series of international instruments already adopted. 

Under [the 1949 Geneva Conventions] … reprisals directed against the enemy civilian population or property in enemy controlled areas are permissible. [The 1977 Additional Protocol I] goes beyond the Geneva Conventions and prohibits reprisals directed against the enemy civilian population or civilian property under all circumstances. 

Although [the 1949 Geneva Convention IV] does not apply to civilian persons outside enemy-occupied areas and consequently does not completely meet humanitarian requirements, it is found to be in accord with the interest of protecting civilian persons in occupied territory and in certain other cases. 

Consequently, even in time of war, acts of a terrorist nature were not a legitimate means of combat. Personally, he was convinced that acts such as the taking of hostages, reprisals and murder aimed at innocent persons had never truly served the struggle for independence and fundamental freedoms. 

The Arab Republic of Egypt, while declaring its commitment to respecting all the provisions of Additional Protocols I and II, wishes to emphasize, on the basis of reciprocity, that it upholds the right to react against any violation by any party of the obligations imposed by Additional Protocols I and II with all means admissible under international law in order to prevent any further violation. 

Reprisals are prohibited against … civilians … The prohibition applies in respect of all weapons. In consequence, they (i.e. protected persons and objects) can never become targets of any attack, including nuclear attacks. 

Reprisals are prohibited against protected persons and objects according to the Geneva Conventions of 1949 and their additional Protocols. This prohibition of reprisal is absolute and applies to the use of all weapons. In consequence, the protected persons and objects can never become targets of any attack, including nuclear attacks. The provisions of the Conventions and the Protocols carrying this prohibition of reprisals against protected persons and objects are considered declaratory of customary law. 

The provisions of paragraphs 4, 5 and 7 were of a type which by their very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the exercise of the inherent right of legitimate defence recognized in Article 51 of the Charter of the United Nations. 

apply the provisions of [Article 51(8)] to the extent that their interpretation does not hinder, in conformity with international law, the use of such means as it considers indispensable for the protection of its civilian population from grave, manifest and deliberate violations of the Conventions and the Protocol by the enemy. 

gave particular support to paragraph 4 [which became paragraph 6 of Article 51 of the 1977 Additional Protocol I], which contained a clear prohibition on attacks against the civilian population or civilians by way of reprisals. That prohibition, he was convinced, had the same importance, and was of the same absolute nature, as the prohibition of reprisals against prisoners of war, the wounded and the sick, which were already contained in the Geneva Conventions. His delegation would therefore regard any reservation on the prohibition as incompatible with the humanitarian object and purpose of the Protocol. 

The Federal Republic of Germany will react against serious and systematic violations of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violation. 

Iraq has long hesitated before responding to the cruel and deliberate bombardments of Iraqi towns contemptuously carried out by the Iranian régime; over a period of several months that régime had on numerous occasions fired missiles on Baghdad and pounded Basra, Sulaymaniyah and other Iraqi towns with its heavy artillery. Iraq had not retaliated for those acts of aggression, choosing instead to issue repeated warnings that had gone unheeded. [These acts had forced] Iraq to deter the aggressor … The following decisions were taken … First: Iraq will halt its bombardment of Iranian towns for two weeks as of … Iraq will consider itself released from this commitment and will resume its bombings forcefully and on greater scale if the forces of the Iranian régime shell Iraqi towns and residential areas and if the Iranian régime launches a new assault against Iraqi territory and Iraq’s international borders. Secondly: This temporary halt in the bombing of towns is contingent upon the position of the Iranian régime with regard to peace; that régime must unequivocally espouse a new position consistent with international law. 

Because of the polite acquiescence of the relevant international bodies with regard to Iraqi acts of lawlessness … Iran has had to take symbolic retaliatory and preventive measures in response to the Iraqi bombardment of civilian areas. Such measures have been adopted with great reluctance and self-restraint. However, should the Iraqi régime persist in its war crimes … the armed forces of … Iran will be obliged to inflict unprecedented heavy and deadly blows in retaliation. Clearly, the responsibility for the consequences of such retaliatory and preventive measures lies with the aggressor régime of Iraq.  

While the high-ranking Iraqi officials have openly declared their criminal policies of attacking our civilian areas, the Islamic Republic of Iran adheres to strict observance of all norms of international humanitarian law and continues to remain committed to refraining from attacks on purely civilian quarter … Iran has been forced to resort to retaliatory measures against its desire … The number of civilian casualties on both sides is a testament to the degree of self-restraint exercised by … Iran in taking retaliatory measures … We have been consistently asking the international body to take serious action against those attacking civilians. 

The reluctant but unavoidable retaliatory fire of our Islamic combatants were directed against economic and industrial quarters of Iraq and with ample prior warning to the civilian occupants of the adjacent areas to leave the scene of our intended attacks. The comparatively very low number of civilian casualties in Iraq is testimony to the humanitarian consideration of … Iran even in its retaliatory exercises. Nevertheless … Iran, based on its position of principle which is in compliance with the universally recognized norms of international law believes in the necessity for strict observance of the rules of law governing the conduct of hostilities. 

The Government of … Iran, faced with an enemy who so easily and frequently resorts to illegal tactics, has in the past found it necessary to take, however reluctantly, limited retaliatory measures as the only method of compelling the rulers of Baghdad to respect their international obligations. Should the régime of Baghdad continue its attacks against civilian centres of … Iran, the Iranian Government will once again be left with no option other than retaliation in kind. 

Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violation. 

In fact, reprisals could rarely be confined to civilian objects alone and the infliction of suffering on the civilian population would be virtually inevitable … The sponsors of the amendment were in favour of extending [the prohibition of reprisals against civilians] to a complete ban on all reprisals against the civilian population and civilian objects alike. 

The current operations raise a number of issues of international law, whether they are police operations or military operations. … Any countermeasures against the civilian population are unacceptable under international law. 

contained the most important provision of the Protocol, such as the prohibition … of attacks by way of reprisals. The latter often affected the most innocent persons and those who were least able to defend themselves, and gave rise to a mood of desperation which lead to counter-reprisals and to chain reactions which became increasingly difficult to stop.

His delegation therefore welcomed the clear and categorical prohibition of reprisals in [the adopted provision]. The whole article, with its general rules, would fill some of the gaps in existing rules of a more specific character. 

International humanitarian law should be developed in two main directions. First, there should be increased protection for the civilian population and non-military objectives … To that end, it was essential to adopt the broadest possible definition of the civilian population and non-military objectives and to take steps to ensure their effective protection. Such steps should include: … the prohibition … of reprisals … and of any other act of terror directed against the civilian population. 

During hostilities, it is forbidden to resort to reprisals against … civilian populations, property and various categories of civilian property which are subject to special protection … The prohibition applies in respect of all weapons, including nuclear weapons. This rule had previously been established in a general manner by Art. 60(5) of the 1969 Vienna Convention of the Law of Treaties … A similar provision is set forth in paragraph 7 of the UN General Assembly resolution 2675 (XXV) … The prohibition of reprisals in these situations appears also in Principle 1, paragraph 6 of UN General Assembly resolution 2625 (XXV) on friendly relations. Even if, in that case, it relates to jus ad (or contra) bellum rather than jus in bello, it is nonetheless applicable to the second. It follows from the above that reprisals can, in no circumstances, be lawful against this category of targets. 

Even in war not everything is allowed. Various means and methods are prohibited, including … Reprisals against the civilian population or against non-military objectives[.] 

To be lawful, a belligerent reprisal must meet two conditions. First, it must not be directed against persons or objects against which the taking of reprisals is specifically prohibited … The Geneva Conventions of 1949 prohibit the taking of reprisals against persons or objects protected by the Conventions … The Conventions do not preclude the taking of reprisals against the enemy’s civilian population … Additional Protocol I prohibits the taking of reprisals against the civilian population (Article 51(6)) … The application of these provisions would have a greater effect on the retaliatory use of nuclear weapons. Again, however, these provisions are correctly regarded as innovative and thus as inapplicable to the use of nuclear weapons. 

The obligations of Articles 51 and 55 are accepted on the basis that any adverse party against which the United Kingdom might be engaged will itself scrupulously observe those obligations. If an adverse party makes serious and deliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those Articles, the United Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations under those Articles, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government. Any measures thus taken by the United Kingdom will not be disproportionate to the violations giving rise thereto and will not involve any action prohibited by the Geneva Conventions of 1949 nor will such measures be continued after the violations have ceased. The United Kingdom will notify the Protecting Powers of any such formal warning given to an adverse party, and if that warning has been disregarded, of any measures taken as a result. 

[The 1977 Additional Protocol I] had gone far to remove the deterrent of reprisals, for understandable and commendable reasons and in view of past abuses. In the event of massive and continuing violations of the [1949 Geneva] Conventions and [the 1977 Additional Protocol I], however, the series of prohibitions on reprisals might prove unworkable. Massive and continuing attacks directed against a nation’s civilian population could not be absorbed without a response in kind. By denying the possibility of such response and not offering any workable substitute, [the 1977 Additional Protocol I] was unrealistic and, in that respect, could not be expected to withstand the test of future armed conflicts. 

Article 51 of Protocol I prohibits any reprisal attacks against the civilian population, that is, attacks that would otherwise be forbidden but that are in response to the enemy’s own violations of the law and are intended to deter future violations. Historically, reciprocity has been the major sanction underlying the laws of war. If article 51 were to come into force for the United States, an enemy could deliberately carry out attacks against friendly civilian populations, and the United States would be legally forbidden to reply in kind. As a practical matter, the United States might, for political or humanitarian reasons, decide in a particular case not to carry out retaliatory or reprisal attacks involving unfriendly civilian populations. To formally renounce even the option of such attacks, however, removes a significant deterrent that presently protects civilians and other war victims on all sides of a conflict. 

Article 51, paragraph 6, and article 52, paragraph 1, of [the 1977 Additional Protocol I] prohibit reprisals against the civilian population or civilian objects of an enemy nation, respectively. These provisions are not a codification of customary international law, but, in fact, a reversal of that law. The military review considered whether surrender of these rights would advance the law of war, or threaten the continued respect for the rule of law in war. It was concluded that removal of this legal right placed any further respect for the rule of law by certain nations in jeopardy …

The American review recognized the historic pattern for abuse of U.S. and allied prisoners of war by their enemies, and concluded that a broad reservation to the prohibition of reprisals contained in articles 51 and 52 of [the 1977 Additional Protocol I] was essential as a legitimate enforcement mechanism in order to ensure respect for the law of war. 

Various provisions of Additional Protocol I contain prohibitions on reprisals against specific types of persons or objects, including the civilian population or individual civilians (Article 51(6)) … These are among the new rules established by the Protocol that … do not apply to nuclear weapons. 

The ongoing violations of human rights and international humanitarian law, particularly in North Kivu and South Kivu, northern Katanga and other areas in the eastern part of the Democratic Republic of the Congo, including armed violence and reprisals against the civilian population. 

Recalls, in accordance with international humanitarian law, that indiscriminate attacks against civilians, including children, are prohibited and that they shall not be the object of attack, including by way of reprisal or excessive use of force, condemns these practices, and demands that all parties immediately put an end to them. 

Deploring continued attacks, acts of reprisal, abductions and other acts of violence committed against United Nations personnel, personnel of other humanitarian organizations and non-governmental organizations and representatives of the international media in Somalia, sometimes resulting in serious injury or death. 

Noting that the Democratic Republic of the Congo is a party to several international and regional human rights instruments and to several instruments pertaining to international humanitarian law,

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3. Condemns:

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(c) The reprisals against the civilian population in the territories controlled by RCD-Goma and MLC, especially the operation “Effacer le tableau” (“Clean the blackboard”) at the end of 2002, in addition to the exactions committed by the Union of Congolese Patriots (UPC), and stresses that the foreign forces which support RCD-Goma, MLC and UPC should also be held responsible for the massacres and atrocities that have occurred. 

The persistent violations of human rights and international humanitarian law in the Democratic Republic of the Congo, particularly the armed violence and reprisals against the civilian population in Ituri, North Kivu and South Kivu, northern Katanga and other areas in the eastern part of the country. 

The violations of human rights and international humanitarian law, particularly in Ituri, North Kivu and South Kivu, northern Katanga and other areas in the eastern part of the Democratic Republic of the Congo, including armed violence and reprisals against the civilian population … 

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. 

The Special Rapporteur also received allegations of individual murders inspired by ethnic revenge. One concerned Radislav and Marina Komjenac, two elderly civilians – said to be Bosnian Serbs – who were taken from their homes in Sarajevo and summarily executed on 26 June 1993. The killings appear to have been in retaliation for a mortar attack which killed seven Muslim civilians in the old town. Government militia were alleged to be responsible. The Special Rapporteur wrote to the Government on 14 August 1993 expressing concern about the report and asking what steps had been taken to punish the perpetrators. 

In international armed conflicts to which the four Geneva Conventions and Additional Protocol I apply, lawful reprisals … must be directed exclusively against combatants or other military objectives subject to the limitations contained in the Geneva Conventions, Protocol I and customary international law of armed conflicts. In international armed conflicts where Additional Protocol I does not apply, reprisals may be directed against a much wider category of persons and objects, but subject to the limitations of customary international law of armed conflicts. 

One category of cases involved the large-scale killing of civilians in occupied territory as part of a policy of reprisals, exemplified by the massacres committed on 29 June 1944 in Civitella (Val di Chiana), Cornia and San Pancrazio by members of the “Hermann Goring” division of the German armed forces involving the killing of 203 civilians taken as hostages after resistance fighters had killed four German soldiers a few days earlier (Max Josef Milde case, Military Court of La Spezia, judgment of 10 October 2006 (registered on 2 February 2007)) … The Court considers that there can be no doubt that this conduct was a serious violation of the international law of armed conflict applicable in 1943–1945. 

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143. The Chamber further notes that reprisals against the civilian population as such, or individual civilians, are prohibited in all circumstances, regardless of the behaviour of the other party, since “no circumstances would legitimise an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party”.

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151. In light of the foregoing, the Chamber is satisfied that there are substantial grounds to believe that the attack on Busurungi and surrounding villages on or about 9–10 May 2009 was launched by the FDLR with the aim of targeting both military objectives (FARDC positions in the village and surroundings) and the civilian population or individual civilians not taking direct part in the hostilities. The Chamber is further satisfied that the FDLR soldiers who took part in the attack were aware of the civilian status of the victims and intended to attack the civilian population or individual civilians not taking direct part in the hostilities since they were considered enemies. The Chamber therefore finds substantial grounds to believe that the war crimes of attacking civilians under article 8(2)(e)(i) of the [1998 ICC] Statute and murder under article 8(2)(c)(i) of the Statute were committed by the FDLR troops in Busurungi and surrounding villages on or about 9-10 May 2009.  [footnotes in original omitted]

15. … Does the fact that the attack was carried out as a reprisal reverse the illegality of the attack? The prohibition against attacking the civilian population as such as well as individual civilians must be respected in all circumstances regardless of the behaviour of the other party. The opinion of the great majority of legal authorities permits the Trial Chamber to assert that no circumstances would legitimise an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party. The exclusion of the application of the principle of reprisals in the case of such fundamental humanitarian norms is confirmed by Article 1 Common to all Geneva Conventions. Under this provision, the High Contracting Parties undertake to respect and ensure respect for the Conventions in all circumstances, even when the behaviour of the other party might be considered wrongful. The [ICJ] considered that this obligation does not derive only from the Geneva Conventions themselves but also from the general principles of humanitarian law …

16. The prohibition on reprisals against the civilian population or individual civilians which is applicable to all armed conflicts, is reinforced by the texts of various instruments. General Assembly resolution 2675, underscoring the need for measures to ensure better protection of human rights in armed conflicts of all types, posits that “civilian populations, or individual members thereof, should not be the object of reprisals”. Furthermore, Article 51(6) of Protocol I … states an unqualified prohibition because “in all circumstances, attacks against the civilian population or civilians by way of reprisals are prohibited” …

17. Therefore, the rule which states that reprisals against the civilian population as such, or individual civilians, are prohibited in all circumstances, even when confronted by wrongful behaviour of the other party, is an integral part of customary international law and must be respected in all armed conflicts. 

527. … With regard to civilians in combat zones, reprisals against them are prohibited by Article 51(6) of the First Additional Protocol of 1977 … The question nevertheless arises as to whether these provisions, assuming that they were not declaratory of customary international law, have subsequently been transformed into general rules of international law. In other words, are those States which have not ratified the First Protocol … nevertheless bound by general rules having the same purport as those two provisions? Admittedly, there does not seem to have emerged recently a body of State practice consistently supporting the proposition that one of the elements of custom, namely usus or diuturnitas has taken shape. This is however an area where opinio iuris sive necessitatis may play a much greater role than usus, as a result of the … Martens Clause. In the light of the way States and courts have implemented it, this Clause clearly shows that principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent. The other element, in the form of opinio necessitatis, crystallising as a result of the imperatives of humanity or public conscience, may turn out to be the decisive element heralding the emergence of a general rule or principle of humanitarian law.

528. The question of reprisals against civilians is a case in point. It cannot be denied that reprisals against civilians are inherently a barbarous means of seeking compliance with international law. The most blatant reason for the universal revulsion that usually accompanies reprisals is that they may not only be arbitrary but are also not directed specifically at the individual authors of the initial violation. Reprisals typically are taken in situations where the individuals personally responsible for the breach are either unknown or out of reach. These retaliatory measures are aimed instead at other more vulnerable individuals or groups. They are individuals or groups who may not even have any degree of solidarity with the presumed authors of the initial violation; they may share with them only the links of nationality and allegiance to the same rulers.

529. In addition, the reprisal killing of innocent persons, more or less chosen at random, without any requirement of guilt or any form of trial, can safely be characterized as a blatant infringement of the most fundamental principles of human rights. It is difficult to deny that a slow but profound transformation of humanitarian law under the pervasive influence of human rights has occurred. As a result belligerent reprisals against civilians and fundamental rights of human beings are absolutely inconsistent legal concepts. This trend towards the humanisation of armed conflict is amongst other things confirmed by the works of the United Nations International Law Commission on State Responsibility …

530. It should be added that while reprisals could have had a modicum of justification in the past, when they constituted practically the only effective means of compelling the enemy to abandon unlawful acts of warfare and to comply in future with international law, at present they can no longer be justified in this manner …

531. Due to the pressure exerted by the requirements of humanity and the dictates of public conscience, a customary rule of international law has emerged on the matter under discussion. 

The aforementioned elements seem to support the contention that the demands of humanity and the dictates of public conscience, as manifested in opinio necessitatis, have by now brought about the formation of a customary rule also binding upon those few States that at some stage did not intend to exclude the abstract legal possibility of resorting to the reprisals under discussion. 

In the War of 1914–1918 the illegality, except by way of reprisals, of aerial bombardment directed exclusively against the civilian population for the purpose of terrorisation or otherwise seems to have been generally admitted by the belligerents, – although this fact did not actually prevent attacks on centres of civilian population in the form either of reprisals or of attack against military objectives situated therein.