Practice Relating to Rule 146. Reprisals against Protected Persons
Section D. Civilians in the power of the adversary
Geneva Convention IV
Article 33, third paragraph, of the 1949 Geneva Convention IV provides: “Reprisals against protected persons … are prohibited.”
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 33, third para.
UN Secretary-General’s Bulletin
Section 7.2 of the 1999 UN Secretary-General’s Bulletin which deals under Section 7.1 with the protection of “persons not, or no longer, taking part in military operations, including civilians … and persons placed hors de combat by reason of … detention”, states: “The following acts against any of the persons mentioned in section 7.1 are prohibited at any time and in any place: … reprisals”.
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 7.2.
ILC Draft Articles on State Responsibility
Article 50(1) of the 2001 ILC Draft Articles on State Responsibility, dealing with “Obligations not affected by countermeasures”, states: “Countermeasures shall not affect: … (c) obligations of a humanitarian character prohibiting reprisals”.
Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its fifty-third session, 23 April–1 June and 2 July–10 August 2001, UN Doc. A/56/10, 2001, Article 50(1).
Argentina
Argentina’s Law of War Manual (1969), in the chapter dealing with the “Protection of civilian persons in times of war”, which contains “provisions common to the territories of the belligerent parties and occupied territories”, states: “Measures of reprisal with respect to protected persons and their property remain equally prohibited.”
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 4.012(3).
Argentina
Argentina’s Regulation for the Treatment of POWs (1985), in a part dealing with interned civilians, states: “Reprisals against innocent interned [persons] are prohibited.”
Argentina, Reglamento para el Tratamiento de los Prisioneros de Guerra de la Armada, Publicación R.A.-6-006, Armada Argentina, Dirección General del Personal Naval, 1ra. Edición, 1985, § 4.02(5).
Argentina
Argentina’s Law of War Manual (1989), in a part dealing with the “Treatment given to protected persons”, which contains “provisions common to the territories of the belligerent parties and occupied territories”, refers to Article 33 of the 1949 Geneva Convention IV and provides: “Remain absolutely prohibited: … measures of reprisal against protected persons and their objects”.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.29(5).
In an annex containing a list of “Fundamental rules of International Humanitarian Law applicable in armed conflict”, the manual provides: “Civilian persons who find themselves in the hands of the adversary … will be protected against all acts of violence and reprisals.”
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, Annex 10, § 4.
Australia
Australia’s Commanders’ Guide (1994) refers to Article 33 of the 1949 Geneva Convention IV and states: “Protected persons, such as … civilians … should not be the subject of reprisals.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1212.
Australia
Australia’s Defence Force Manual (1994), in a provision entitled “Effects of occupation on the population”, states: “Measures for the control of the population which are prohibited include: … reprisals or collective penalties”.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1221(c).
Australia
Australia’s LOAC Manual (2006) states: “Measures for the control of the population [in occupied territory] which are prohibited include … reprisals or collective penalties”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 12.39.
The manual also states: “Reprisals are never lawful if directed against any of the following [including] … protected persons and their property.”
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 13.19.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983), citing several examples of jurisprudence and referring to Articles 4 and 33 of the 1949 Geneva Convention IV, states:
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.
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 36.
Benin
Benin’s Military Manual (1995) states: “The following prohibitions must be respected: … to launch reprisals against protected persons and property.” It adds that reprisals “may only be used if: … they are carried out only against combatants and military objectives”.
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, pp. 12 and 13.
Burkina Faso
Burkina Faso’s Disciplinary Regulations (1994), in a provision entitled “Laws and customs of war” dealing with the duties of and prohibitions for combatants, states: “It is prohibited to soldiers in combat: … to take hostages, to engage in reprisals or collective punishments”.
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(2).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Reprisals against the civilian population are prohibited.”
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 15.
The Regulations also states that “Civilians must be … protected against acts of vengeance”.
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 55.
Cameroon
Cameroon’s Disciplinary Regulations (1975) states: “It is prohibited to soldiers in combat: … to engage in reprisals or collective punishments”.
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 32.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states: “It is prohibited to soldiers in combat … to take hostages, to engage in reprisals or collective punishments”.
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 32.
Canada
Canada’s LOAC Manual (1999), in a chapter entitled “Treatment of civilians in the hands of a party to the conflict or an occupying power” and, more specifically, in a section containing “Provisions common to the territories of the parties to the conflict and to occupied territories”, refers to the 1949 Geneva Convention IV and states: “The following are expressly prohibited: … the taking of reprisals against protected persons and their property”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-4, § 33.
In a section dealing with enforcement measures, the manual further provides: “Reprisals are permitted against combatants and against objects constituting military objectives.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-2, § 16.
In the same section, the manual also states: “Reprisals against the following categories of persons and objects are prohibited: … d. civilians in the hands of a party to the conflict of which they are not nationals, including inhabitants of occupied territory”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-2, § 15.
Canada
Canada’s LOAC Manual (2001), in its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Provisions common to the territories of the parties to the conflict and to occupied territories”, states:
[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:
…
d. the taking of reprisals against protected persons and their property.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1121.2.d.
In its chapter on rights and duties of occupying powers, the manual further states:
1223. Control of persons in occupied territory
…
3. The following measures of population control are forbidden at all times:
…
d. punishment for acts of others, that is, reprisals or collective penalties.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1223.3.d.
In its chapter entitled “Preventative and enforcement measures and the role of protecting powers”, the manual also states:
4. Reprisals against the following categories of persons and objects are prohibited.
…
d. civilians in the hands of a party to the conflict of which they are not nationals, including inhabitants of occupied territory;
…
5. Reprisals are permitted against combatants and against objects constituting military objectives.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1507.4.d and 5.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders) that “civilians who are under the authority of the adverse party … must be protected against … reprisals.”
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Fundamental Rules, § 4; see also Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section I.
Chad
Chad’s Instructor’s Manual (2006) states that “reprisals are prohibited against … civilian persons”.
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 93.
Colombia
Colombia’s Circular on Fundamental Rules of IHL (1992) provides: “Civilian persons under the authority of the adversary … shall be protected against … reprisals”.
Colombia, Transcripción Normas Fundamentales del Derecho Humanitario Aplicables en los Conflictos Armados, Circular No. 033/DIPL-SERPO-526, Policía Nacional, Dirección General, Santafé de Bogotá, 14 May 1992, § 4.
Congo
The Congo’s Disciplinary Regulations (1986), in a provision entitled “International conventions, laws and customs of war”, states: “According to the conventions adhered to by the Congo … it is prohibited [to soldiers in combat]: … to take hostages, to engage in reprisals or collective punishments”.
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32(2).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
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.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 21, 35 and 37–38.
Dominican Republic
The Dominican Republic’s Military Manual (1980), under the heading “Treat all captives and detainees humanely”, states: “You must never carry out reprisals or acts of vengeance against any person, enemy or civilian, you have taken prisoner or detained during the fighting.” It also provides: “The Geneva Convention prohibits reprisals against civilians for the acts of enemy soldiers”.
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, pp. 7 and 10.
Ecuador
Ecuador’s Naval Manual (1989) provides: “Reprisals may be taken against enemy armed forces, [and] enemy civilians other than those in occupied territory.” It adds: “Reprisals are forbidden to be taken against: … 3. Civilians in occupied territory”. The manual also provides: “Interned civilians … may not be subjected to collective punishment or acts of reprisal.”
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, §§ 6.2.3 and 11.9.
France
France’s Disciplinary Regulations (1975), as amended, in a provision entitled “Respect for the rules of international law applicable in armed conflicts” dealing with the duties of and prohibitions for combatants, states: “By virtue of the international conventions ratified or approved: … it is prohibited [to soldiers in combat]: … to take hostages, to engage in reprisals or collective punishments”.
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi, Article 9 bis (2).
France
France’s LOAC Summary Note (1992) provides: “Civilians in the power of the adversary must be protected against violence and reprisals.”
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 2.1.
France
France’s LOAC Manual (2001), in the chapter dealing with means and methods of warfare, states: “The law of armed conflict prohibits … the methods of warfare which consist in the recourse: … to reprisals against non-military objectives”.
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 85.
The manual further refers to Article 33 of the 1949 Geneva Convention IV and Article 20 of the 1977 Additional Protocol I and states: “Reprisals are prohibited against civilian persons.”
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 108.
Germany
Germany’s Military Manual (1992), in the chapter dealing with reprisals, refers to Article 33 of the 1949 Geneva Convention IV and Article 51 of the 1977 Additional Protocol I and provides: “It is expressly prohibited by agreement to make reprisals against: … civilians”.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 479.
Referring to Article 33 of the 1949 Geneva Convention IV and Articles 20 and 51 of the 1977 Additional Protocol I, the manual further states: “Reprisals against the civilian population … are prohibited.”
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 507.
In a chapter entitled “Belligerent occupation”, the manual, referring to Article 33 of the 1949 Geneva Convention IV and Articles 20 and 51 of the 1977 Additional Protocol I, further states: “Reprisals against civilians … are prohibited.”
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 535.
Hungary
Hungary’s Military Manual (1992) provides for the prohibition of taking reprisals against “specifically protected persons and objects”.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 35.
India
India’s Manual of Military Law (1983) prohibits reprisals. This provision is in a section relative to the action by a commander acting in aid of civil authorities for the handling of crowds and mobs. It adds that action is preventive and not punitive and that no soldier can punish a civilian, except under martial law.
India, Manual of Military Law, Three Volumes, Ministry of Defence, Government of India, 1983, Vol. 1, Chapter VII, § 8.
Indonesia
Indonesia’s Air Force Manual (1990) provides that a “reprisal is absolutely prohibited against protected persons and objects”.
Indonesia, The Basics of International Humanitarian Law in Air Warfare, Indonesian Air Force, 1990, § 15(c).
Italy
Italy’s IHL Manual (1991), in a chapter dealing with occupied territory, states: “In occupied territories, civilian persons have the following rights: … they may not be … made the object of reprisals”.
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 41(f).
Kenya
Kenya’s LOAC Manual (1997) states: “It is forbidden: … (e) to carry out reprisals against protected persons or property”.
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 2.
In a chapter dealing with reprisals, the manual further provides that reprisals “are carried out only against combatants and military objectives … The Geneva Conventions and [the 1977 Additional Protocol I] prohibit reprisals against … civilians”.
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 4.
Madagascar
Madagascar’s Military Manual (1994), in the part dealing with civilian persons, instructs soldiers to “protect them against ill-treatment”. It states: “Acts of vengeance … are prohibited.”
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 4-T, § 23(3).
The manual further instructs soldiers to refrain from all acts of revenge.
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 5-T, §§ 8 and 9.
In its attached list of “Fundamental rules of international humanitarian law applicable in armed conflicts”, the manual states: “Captured combatants and civilians who are under the authority of the adverse party … will be protected against any act of violence and reprisals.”
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, p. 91, Rule 4.
Morocco
Morocco’s Disciplinary Regulations (1974), in a provision entitled “Laws and customs of war” dealing with the duties of and prohibitions for combatants, states: “It is prohibited to soldiers in combat: … to take hostages, to engage in reprisals or collective punishments”.
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25(2).
Netherlands
The Military Manual (1993) of the Netherlands, in the chapter dealing with the protection of the civilian population and referring to Article 33 of the 1949 Geneva Convention IV, states: “A protected person cannot be punished for acts which he/she has not personally committed. Collective punishments are also prohibited.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VIII-2.
Netherlands
The Military Manual (2005) of the Netherlands states:
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.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0424.
In its chapter on the protection of the civilian population, the manual states that “reprisals against protected persons and their property are prohibited”.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0808.
New Zealand
New Zealand’s Military Manual (1992), in the chapter dealing with civilians and referring to Articles 32–34 of the 1949 Geneva Convention IV, states: “The following are … prohibited: … the taking of reprisals against protected persons and their property”.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1116(2)(d).
In a chapter dealing with reprisals and referring to Article 33 of the 1949 Geneva Convention IV and Article 73 of the 1977 Additional Protocol I, the manual states: “Reprisals against the following categories of persons and objects are prohibited … d) civilians in the hands of a Party to the conflict of which they are not nationals, including inhabitants of occupied territory”.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1606(2).
Peru
Peru’s IHL Manual (2004) states that reprisals against “civilians” are prohibited.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 25.c.(2).(a); see also § 92.d.
South Africa
South Africa’s LOAC Manual (1996) states: “Reprisals against the persons and property of … protected civilians are prohibited.”
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 34(e).
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “Reprisals against the persons or property of … protected civilians are prohibited.”
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(e).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Fundamental Norms and Values (rules)
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. …
…
Prohibited Acts against Persons not taking an Active Part in Armed Conflicts
…
- Specific Rules
…
- Reprisals against protected persons and their property are prohibited.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 16 and 17–18.
The manual also states:
2.4 Specifically Protected Persons and Objects:
a. Civilians
…
[1949] Geneva Convention IV articles 28 to 34 grant further protection to civilians. These articles determine the following:
…
- A protected person may not be punished for an offence that that person has not committed. Collective penalties, intimidation or terrorism, pillage and reprisals are prohibited.
…
Protection of protected persons entails the following:
…
- Collective penalties, intimidation or terrorism, pillage and reprisals are prohibited against protected persons.
…
2.7 Special Protection: Occupied Territories
…
Rights of Protected Persons in Occupied Territories
…
The following prohibitions exist regarding conduct in occupied territories ([1949] Geneva Convention IV articles 31 to 34):
…
- Reprisals.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 112, 117, 124 and 155–156.
Spain
Spain’s LOAC Manual (1996) lists among the persons against whom the taking of reprisals is prohibited “civilian persons and objects”. It refers, however, to Article 46 of the 1949 Geneva Convention I.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 3.3.c.(5)(b).
Spain
Spain’s LOAC Manual (2007) lists “civilians” among the persons against whom the taking of reprisals is prohibited.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 3.3.c.(5); see also § 11.8.c.
Sweden
Sweden’s IHL Manual (1991), referring to Article 33 of the 1949 Geneva Convention IV, states:
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.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 6.1.3, p. 122.
Switzerland
Switzerland’s Basic Military Manual (1987), in the part dealing with “Hostilities and their limits” refers, inter alia, to Article 33 of the 1949 Geneva Convention IV and Articles 51, 54 and 55 of the 1977 Additional Protocol I and states: “Reprisals against the civilian population are prohibited.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 25(2).
In the part dealing with civilian persons and, more specifically, “civilian persons who are in the power of the troops at the moment of combat”, the manual refers to Article 33 of the 1949 Geneva Convention IV and states: “Measures of reprisal or attacks [carried out] as measures of reprisal are prohibited.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 149.
In a provision dealing with reprisals, the manual, referring to Article 33 of the 1949 Geneva Convention IV, states: “By virtue of the Geneva Conventions and their Additional Protocols, [reprisals] are prohibited with regard to … the civilian population”.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 197(2).
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
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.
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 198.
[emphasis in original]Togo
Togo’s Military Manual (1996) states: “The following prohibitions must be respected: … to launch reprisals against protected persons and property”. It adds that reprisals “may only be used if: … they are carried out only against combatants and military objectives”.
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, pp. 12 and 13.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958), in a chapter dealing with the “treatment of enemy alien civilians” and referring to Articles 32–34 of the 1949 Geneva Convention IV, states: “The following are prohibited: … the taking of reprisals against protected persons and their property”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 42.
In a chapter dealing with “the occupation of enemy territory”, the manual states: “[Article 33 of the 1949 Geneva Convention IV] effected a change in the law by laying down expressly that no protected person may be punished for an offence he or she has not personally committed and that collective penalties and all measures of intimidation or of terrorism are prohibited”. It goes on to say, with reference to Articles 33 and 34 of the 1949 Geneva Convention IV: “[The 1949 Geneva Convention IV], provides … that ‘Reprisals against protected persons and their property are prohibited’.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, §§ 553 and 554.
In a part dealing with reprisals, the manual states: “Reprisals against … civilian protected persons and their property in occupied territory and in the belligerent’s own territory, are … prohibited.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 644.
In a footnote relating to this provision, the manual, referring to Articles 4 and 33 of the 1949 Geneva Convention IV, notes: “The effect of this rule is that reprisals are unlawful against all persons except enemy combatants and those few classes of civilians who are not protected persons.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 644, footnote 2.
In a footnote relating to another provision, the manual states: “Reprisals against … civilians protected under [the 1949 Geneva Convention IV], constitute war crimes.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 647, footnote 1.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981), in a part dealing with the protection of civilians, states: “It is forbidden: … to carry out reprisals against protected persons or property.”
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 4, p. 14, § 5(e).
The Pamphlet further states: “The [1949] Geneva Conventions and [the 1977 Additional Protocol I] prohibit reprisals against … enemy civilians in territory controlled by a belligerent.”
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 4, p. 17, § 16.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Reprisals are never lawful if directed against any of the following: … c. protected persons and their property”.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.18; see also § 9.24.
United States of America
The US Field Manual (1956), referring to Article 33 of the 1949 Geneva Convention IV, states: “Reprisals against … protected civilians 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.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 497(c).
United States of America
The US Air Force Pamphlet (1976), referring to Article 33 of the 1949 Geneva Convention IV, provides:
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.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 10-7(b)(1).
The Pamphlet further states:
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]).
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 10-7(b)(2).
United States of America
The US Soldier’s Manual (1984), under the heading “Treat all captives and detainees humanely”, tells soldiers: “You must never engage in reprisals or acts of revenge against any persons, enemy or civilian, whom you capture or detain in combat.”
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 15.
In a part dealing with the treatment of civilians and private property, the manual further states: “The Geneva Conventions forbid retaliating against civilians for the actions of enemy soldiers.”
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 23.
United States of America
The US Air Force Commander’s Handbook (1980), under the heading “Persons and Things Not Subject to Reprisals”, states: “Under the 1949 Geneva Conventions, reprisals may not be directed against … the inhabitants of occupied territory”.
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 8-4(c).
United States of America
The US Operational Law Handbook (1993) provides: “The following measures are expressly prohibited by the law of war and are not excusable on the basis of military necessity: … m. Reprisals against persons or property protected by the Geneva Conventions, to include … civilians.”
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. Q-182.
United States of America
The US Naval Handbook (1995) states: “Reprisals are forbidden to be taken against: 1. … interned civilians … 3. Civilians in occupied territory.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.3.2.
The Handbook also provides: “All interned civilians … may not be subjected to reprisal action or collective punishment.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.8.
United States of America
The US Naval Handbook (2007) states:
Reprisals are forbidden to be taken against:
1. … interned civilians
…
3. Civilians in occupied territory.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.4.2; see also § 11.5.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “The laws of war prohibit reprisals against the following persons and objects: … civilian persons and their property”.
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 31(1).
Azerbaijan
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides:
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.
Azerbaijan, Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War, 1995, Article 16.
Colombia
Under Colombia’s Penal Code (2000), reprisals against protected persons and objects taken “in the event and during armed conflict” are punishable offences.
Colombia, Penal Code, 2000, Article 158.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
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].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
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].
Denmark, Military Criminal Code, 2005, § 36(2).
Italy
Italy’s Law of War Decree (1938), as amended in 1992, provides: “Respect for rules adopted in order to comply with international conventions which expressly exclude reprisals cannot be suspended.”
Italy, Law of War Decree, 1938, as amended in 1992, Article 8.
Japan
Japan’s Law concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations (2004) states: “No person shall expose any adverse distinction on … detainees in revenge for armed attack.”
Japan, Law concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Article 2(3).
Argentina
In the Priebke case in 1995, Argentina’s Public Prosecutor of First Instance, dealing with Italy’s request to extradite the accused, held that the alleged killing in reprisal of 330 civilians and prisoners of war committed by German soldiers in the Ardeatine Caves in Italy during the Second World War was “an act which must be qualified as a war crime”.
Argentina, Hearing of the Public Prosecutor of the First Instance, Priebke case, 1995, Section V.2.
Italy
In its judgment in the Schintlholzer case in 1988 dealing with the killing of Italian civilians by German soldiers in 1944, Italy’s Military Tribunal of Verona stated that the acts
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].
Italy, Military Tribunal of Verona, Schintlholzer case, Judgment, 15 November 1988.
United States of America
In the Calley case in 1973, a US army officer was convicted of murder for killing South Vietnamese civilians. The US Army Court of Military Review dismissed the argument that the acts were lawful reprisals for illegal acts of the enemy and held: “Slaughtering many for the presumed delicts of a few is not a lawful response to the delicts … Reprisal by summary execution of the helpless is forbidden in the laws of land warfare.”
United States, Army Court of Military Review, Calley case, Judgment, 16 February 1973.
Colombia
At the CDDH, following the adoption of Article 20 of the 1977 Additional Protocol I, Colombia stated that it “was opposed to any kind of reprisals”.
Colombia, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, § 34.
Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, in an exercise asking students to identify IHL violations, provided the following example:
[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.”
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 200.
Egypt
In its written comments on other written statements concerning the
Nuclear Weapons case before the ICJ in 1995, Egypt stated:
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.
Egypt, Written comments submitted to the ICJ, Nuclear Weapons case, September 1995, § 43.
France
At the CDDH, France made a proposal for a draft Article on reprisals within the 1977 Additional Protocol I – which it later withdrew – which read, inter alia, as follows: “3. … The measures may not involve any actions prohibited by the Geneva Conventions of 1949.”
France, Draft Article 74 bis Additional Protocol I submitted to the CDDH, Official Records, Vol. III, CDDH/I/ 221/Rev.1, 22 April 1976, p. 324.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany, with regard to a French proposal on reprisals according to which “the measures may not involve any actions prohibited by the Geneva Conventions of 1949”, stated that this provision “was the most important in the whole of the proposal since it really did protect … the civilian population in occupied territory”.
Germany, Federal Republic of, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.48, 30 April 1976, p. 84, § 6.
Israel
According to the Report on the Practice of Israel, the Israel Defense Forces (IDF) do not condone or conduct reprisals against persons or objects protected by the 1949 Geneva Conventions.
Report on the Practice of Israel, 1997, Chapter 2.9.
Jordan
According to the Report on the Practice of Jordan: “The prohibition of belligerent reprisals against protected persons and property is viewed as customary law … In practice, Jordan never resorted to attacks by way of reprisal.”
Report on the Practice of Jordan, 1997, Chapter 2.9.
Philippines
The Report on the Practice of the Philippines states: “Reprisals are generally prohibited.”
Report on the Practice of the Philippines, 1997, Chapter 2.9.
Poland
At the CDDH, Poland made a proposal for a draft article on reprisals within the 1977 Additional Protocol I – which it later withdrew – which read, inter alia, as follows “Insert a new article after [draft] Article 70 worded as follows: ‘Measures of reprisal against persons and objects protected by the [1949 Geneva] Conventions and by the present Protocol are prohibited’.”
Poland, Proposal on a new Article 70 bis draft Additional Protocol I submitted to the CDDH, Official Records, Vol. III, CDDH/III/103, 1 October 1974, p. 313.
United Kingdom of Great Britain and Northern Ireland
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the United Kingdom stated:
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.
United Kingdom, Written statement submitted to the ICJ, Nuclear Weapons case, 16 June 1995, pp. 58–59.
United States of America
An instruction card issued to all US troops engaged in Viet Nam directed soldiers always to treat prisoners humanely, adding: “All persons in your hands, whether suspects [or] civilians … must be protected against violence, insults, curiosity, and reprisals of any kind.”
United States, The enemy in your hands, Reproduction of 3x5 instruction card issued to all troops, reprinted in George. S. Prugh, Law at War: Vietnam 1964–1973, Department of the Army, Vietnam Studies, 1975, Appendix H. III.
United States of America
In 1980, in a footnote to a memorandum of law on the “Reported Use of Chemical Agents in Afghanistan, Laos, and Kampuchea”, a legal adviser of the US Department of State stated:
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].
United States, Department of State, Memorandum of law by a Legal Adviser on the “Reported Use of Chemical Agents in Afghanistan, Laos, and Kampuchea”, 9 April 1980, reprinted in Marian Nash Leich, Digest of United States Practice in International Law, 1980, Department of State Publication 9610, Washington, D.C., December 1986, pp. 1034 and 1041, footnote 38.
UN General Assembly
In 2001, the UN General Assembly adopted a resolution on responsibility of States for internationally wrongful acts, to which the 2001 ILC Draft Articles on State Responsibility, and thus Article 50(1)(c) stating that “[c]ountermeasures shall not affect … obligations of a humanitarian character prohibiting reprisals”, were annexed. In the resolution, the General Assembly took note of the Draft Articles and commended them to the attention of governments “without prejudice to the question of their future adoption or other appropriate action”.
UN General Assembly, Res. 56/83, 12 December 2001, § 3 and Annex, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1989 on the question of human rights and fundamental freedoms in Afghanistan, the UN Commission on Human Rights urged all parties to the conflict “to treat all prisoners in their custody in accordance with the internationally recognized principles of humanitarian law and to protect them from all acts of reprisal and violence”.
UN Commission on Human Rights, Res. 1989/67, 8 March 1989, § 11, adopted without a vote.
It reiterated these appeals in 1990, 1991 and 1992.
UN Commission on Human Rights, Res. 1990/53, 6 March 1990, § 5, adopted without a vote; Res. 1991/78, 6 March 1991, § 6, adopted without a vote; Res. 1992/68, 4 March 1992, § 6, adopted without a vote.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), referring to Article 33 of the 1949 Geneva Convention IV and Article 73 of the 1977 Additional Protocol I, stated: “Reprisals against the following categories of persons and objects are specifically prohibited: … (d) Civilians in the hands of a party to the conflict of which they are not nationals, including inhabitants of occupied territory”.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 65.
The Commission further stated:
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.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 66.
No data.
Conference of High Contracting Parties to the Fourth Geneva Convention
The Conference of High Contracting Parties to the Fourth Geneva Convention in 2001 adopted a declaration calling upon “the Occupying Power [in the conflict between Israel and Palestinians] to refrain from perpetrating any other violation of [the 1949 Geneva Convention IV], in particular reprisals against protected persons and their property”.
Conference of High Contracting Parties to the Fourth Geneva Convention, Geneva, 5 December 2001, Declaration, § 14.
International Criminal Court
In its decision on the confirmation of charges in the Mbarushimana case in 2011, the ICC Pre-Trial Chamber I stated:
d. Crimes allegedly committed in Busurungi and surrounding villages on or about 9-10 May 2009
Whether the war crimes of attacking civilians (Count 1) and murder (Count 3) were committed
…
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.
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, §§ 143 and 151.
[footnotes in original omitted]The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity. The Pre-Trial Chamber did not confirm the charges.
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 340.
In its judgment of 30 May 2012, the ICC Appeals Chamber confirmed that decision and dismissed the appeal. ICC, Mbarushimana case, Judgment on Appeal, 30 May 2012.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber stated: “As for reprisals against civilians, under customary international law they are prohibited as long as civilians find themselves in the hands of the adversary.”
ICTY, Kupreškić case, Judgment, 14 January 2000, § 527.
ICRC
In a communication to the press issued in 2000 in connection with the hostilities in the Near East, the ICRC reminded all those involved in the violence and those in a position to influence the situation that “terrorist acts are absolutely and unconditionally prohibited, as are reprisals against the civilian population, indiscriminate attacks and attacks directed against the civilian population”.
ICRC, Communication to the Press No. 00/42, ICRC appeal to all involved in violence in the Near East, 21 November 2000.
No data.
