Practice Relating to Rule 145. Reprisals
Section A. Definition and purpose of reprisals
The Military Manual (1993) of the Netherlands states:
A reprisal is a measure which by itself constitutes a violation of the rules of humanitarian law of war but which is justified by the fact that it aims to force a state to put an end to previously committed violations of humanitarian law of war and to comply with the law.
The manual, referring to customary law, further states that reprisals are in principle allowed, provided that a number of conditions are fulfilled:
–Reprisals are only lawful when they aim at a violation previously committed by the adverse party the existence of which must be properly determined.
–Reprisals against reprisals are prohibited.
The manual concludes: “The freedom of states which have ratified Additional Protocol I to take recourse to reprisals is very limited.”
The Military Manual (2005) of the Netherlands states:
Section 7 - Reprisals
0422. Reprisals mean a measure or action which itself entails breach of the rules of the humanitarian law of war, but is justified because it serves to compel a State put an end to previously committed illegalities or breaches of the humanitarian law of war, and to behave in accordance with the rules of the law.
0423. On the basis of customary law, it used to be assumed that reprisals were allowed in principle by the law of war, provided that a number of conditions were met:
- reprisals are only permitted on grounds of, and directed against, an illegality previously committed by the adversary, which must be duly proven;
- reprisals against reprisals are forbidden.
The manual further states:
[P]ersons and property against which reprisals cannot be carried out is that the scope for reprisals by States which have ratified AP I [1977 Additional Protocol I] is very limited. Reprisals are now only possible against combatants and military targets. Whereas the power to carry out reprisals has been and, in part, still is valid as a way of forcing the adversary to obey the rules of the humanitarian law of war, the conclusion is that this way of achieving compliance with the law of war has become less significant.
In its chapter on the prevention and punishment of war crimes, the manual states:
A reprisal means a measure or act which, in itself, entails violation of the rules of the humanitarian law of war, but which is justified by seeking to compel a State to end previous irregularities or breaches of the humanitarian law of war and to behave in accordance with the rules of the law.
1113. Reprisals are only permitted in exceptional cases, and then only after a decision by the political leadership.
In its chapter on peace operations, the manual states that “the conduct of reprisals is tied to (very) strict rules”.
In its judgment in the Rauter case
in 1948, the Special Court (War Criminals) at The Hague observed: “It is in fact generally accepted that a belligerent has the right to take reprisals as a requital for unlawful acts of war committed by the opponent.” Referring to the judgment of the US Military Tribunal at Nuremberg in the List case (The Hostages Trial)
as well as to the conditions required for reprisals in general by the UK and US military regulations, the Court stated, however, that reprisals may never be taken for revenge but only as a means of inducing the enemy to desist from unlawful practices of warfare.
Nevertheless, on appeal, the Special Court of Cassation of the Netherlands stated:
In the proper sense one can speak of reprisals only when a State resorts, by means of its organs, to measures at variance with International Law, on account of the fact that its opponent – in this case the State with which it is at war – had begun, by means of one or more of its organs, to commit acts contrary to International Law, quite irrespective of the question as to what organ this may have been, Government or legislator, Commander of the Fleet, Commander of the Land Forces, or of the Air Force, diplomat or colonial governor. The measures which the appellant describes … as “reprisals” bear an entirely different character, they are indeed retaliatory measures taken in time of war by the occupant of enemy territory as a retaliation not of unlawful acts of the State with which it is at war, but of hostile acts of the population of the territory in question or of individual members thereof.
During discussions on reprisals in Committee I of the CDDH, the Netherlands stated that “reprisals were a very questionable means of securing respect for humanitarian law”. It further stated that “reprisals should remain a measure of last resort by which to induce an enemy to respect the law, provided that certain strict conditions and safeguards were observed”.
In an explanatory memorandum submitted to the Dutch Parliament in the context of the ratification procedure of the Additional Protocols, the Government of the Netherlands stated: “A reprisal is a means of sanction, consisting in an act that itself is prohibited by international law, to which a State resorts in order to compel another State to cease a violation which that other State is committing.” It further stated:
In practice, it will often be very difficult to fulfil all the requirements that make a reprisal a justified action. Moreover, reprisals can lead to counter-reprisals and create a risk of a fast escalation of violations of humanitarian law. Finally, reprisals are objectionable because, even if all conditions are met, they create victims among persons who have no fault in the immediate causes of the reprisals.
It also noted that under the 1977 Additional Protocol I, only the section on means and methods of warfare did not contain any prohibition on reprisals. Adopting an a contrario
reasoning resulting from this, it took the view that reprisals could only be taken in the event of the use of prohibited weapons or of acts of perfidy.