Practice Relating to Rule 145. Reprisals
Section B. Reasonable notice and measure of last resort
The Military Manual (1993) of the Netherlands, referring to customary law, states that reprisals are in principle allowed, provided that a number of conditions are fulfilled. Among these conditions, it lists that “it must first have been tried to stop the violation of humanitarian law of war by other means (for example by the intervention of a protecting power)”.
The Military Manual (2005) of the Netherlands states:
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:
- an attempt must first be made to stop the breach of the humanitarian law of war in some other way (e.g., by intervention of the protecting power).
In its judgment in the Rauter case
in 1948, the Special Court (War Criminals) at The Hague referred 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, and stated that, accordingly, reprisals were admitted only as a measure of last resort.
During discussions on reprisals at the CDDH, the representative of the Netherlands stated that “reprisals were a very questionable means of securing respect for humanitarian law”. He also said that his delegation felt that “reprisals should remain a measure of last resort”.
In an explanatory memorandum submitted to the Dutch Parliament in the context of the ratification procedure of the 1977 Additional Protocols, the Government of the Netherlands stated that for a reprisal to be lawful “the taking of the reprisal as such must be announced [and] other attempts to force the other party to comply with international law must have failed”.
In a written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Netherlands stated:
The Netherlands Government … believes that even if it were to be assumed that the (first) use of nuclear weapons by a State were unlawful per se
under present international law – quod non
-, this would not necessarily exclude the permissibility of the use of nuclear weapons by way of belligerent reprisal against an unlawful use of (nuclear) weapons, provided of course the retaliating State observed the conditions set by international law for the taking of lawful reprisals, i.e. satisfies, inter alia
, the requirement that the retaliation … serves as an ultimum remedium
[emphasis in original]