Section F. Limitation of reprisals by principles of humanity
Article 86 of the Oxford Manual provides that reprisals “must conform in all cases to the laws of humanity and morality”.
ILC Draft Articles on State Responsibility
Article 50(1) of the 2001 ILC Draft Articles on State Responsibility states:
Countermeasures shall not affect:
(b) Obligations for the protection of fundamental human rights;
(d) Other obligations under peremptory norms of general international law.
Belgium’s Law of War Manual (1983), regarding the circumstances in which reprisals may be taken against individuals, cites a writer’s opinion and states: “Putting to death innocent persons to impose order by terror is a violation of both written law and the basic principles of humanity.”
Italy’s IHL Manual (1991), in the part dealing with reprisals, states:
The Italian laws of war, which are modelled upon the principles of civilization and humanity as much as it is permitted by military necessity, provides for the humane treatment of enemy combatants, wounded or prisoners, as well as of the civilian population, even in cases in which there is no special obligation under international law to do so.
Sweden’s IHL Manual (1991) states:
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 possibility just recounted – for a party to Additional Protocol I suffering a breach of international law to employ reprisals – is to be considered as a hypothetical case. The Committee strongly discourages such application in view of its manifestly inhuman effect.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “Yugoslav military officers competent to determine reprisals cannot order the application of dishonourable methods of reprisals.”
In the Priebke case
in 1995, Argentina’s Public Prosecutor of First Instance, dealing with Italy’s request to extradite the accused, stated, inter alia
, that writers had condemned the killing in reprisal of 330 civilians and prisoners of war carried out by German soldiers in the Ardeatine Caves in Italy during the Second World War and qualified this act as “a reprisal which violated the fundamental principles of humanity”.
In 2010, in the Italian Partisans case, Germany’s Federal Court of Justice was called upon to decide a case concerning the killing of nine Italian civilians in Tuscany in June 1944 by German troops. The Court summarized the facts of the case as follows:
… Two [German] soldiers, whom the accused had tasked with obtaining transport vehicles [as part of a mission to repair a bridge], were killed by partisans in an ambush. A third [German] soldier was injured. Since the partisans had absconded after the attack, the accused, motivated by rage and revenge, decided to take retaliatory measures against the male civilian population of the area. First, he reported the incident to the battalion commander and suggested to take action against the Italian civilians which he had already planned. Agreeing with the accused’s proposal, the battalion commander ordered the [retaliatory] measure and additionally provided logistic support by making available an antiaircraft gun and explosives. The next day, the accused ordered the arrest of all male civilians in the area. In the end, the detainees comprised a group of nine men, the oldest of whom was 67 years old and which included two adolescents who were 15 and 16 years of age. None of them had participated in the attack or was suspected of supporting the partisans. They were locked into a house.
Although some detainees were afraid of being shot, others assumed that they would stay alive but would be deported to a concentration camp in Germany in order to work there. Soon, however, the house was destroyed by explosion. Subsequently, and also pursuant to the accused’s order, machine guns were fired at the debris in order to kill any surviving victims. In the end, only the fifteen-year-old survived with severe injuries. …
On this basis, the accused was convicted on ten counts of murder and attempted murder and sentenced to life imprisonment.
The Court held: “The criminal chamber [of the lower court] rightly considered the killings of the Italian civilians ordered by the accused as murder.”
The Court rejected the argument that the killings would have been justified as war reprisals under the law in force at the time. Regarding the limitation of reprisals by principles of humanity, the Court held:
(2) War reprisals were limited by the so-called barrier of humanity (Humanitätsschranke). Even if a humane way of killing is barely conceivable, in particular not today, the law at the time at least recognized the prohibition of reprisals against women and children …
The accused argues that the victims who were 15 and 16 years of age were not children. The Court does not share this view. The term child is not uniformly defined in law. … The equation of women with children at the time means in the view of this Court that war reprisals ought not to be taken against those who cannot at all become regular soldiers (women) or who cannot yet become regular soldiers (children). According to the law in force in Italy at the time regulating compulsory military service, the obligation to provide military service only began at the age of 17 …. Thus, the two adolescents affected by the retaliatory measure would not have been subject to compulsory military service. For this reason, the Court considers that they must be considered children for the present purposes.
(3) The way in which the killing was carried out is often considered a central aspect in determining the “humanity” of a killing in the context of a reprisal … The destruction of a building by explosion in which the victims, unaware of their fate, were detained, is considered a humiliating and degrading and therefore inhumane way of killing which is not justified under the laws of war. The same is true for the subsequent and additional killing by firing machine guns …
(4) The least controversial condition for the lawfulness of a war reprisal in this context was the so-called notification, i.e. the public declaration of the event … The purpose of the notification was, on the one hand, to repel future repetitions of attacks against the occupying power … and, on the other hand, to demonstrate “that the measures taken were in the interest of enforcing the law … and thus did not have to be concealed” … There was no such notification. …
c) … [T]he finding of the criminal chamber [of the lower court] that the objective requirements for a permissible war reprisal were not fulfilled is fully confirmed.
In the Kappler case in 1948, dealing with the Ardeatine Caves massacre during the Second World War, the Military Tribunal of Rome stated:
Reprisals are subject to a general limitation which consists in the duty not to violate those rights intended to safeguard fundamental needs. This principle … now finds clear expression in the preamble of the Hague Convention … where the activities of States are set a limit by “the principles of the law of nations, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience”.
In its judgment in the Priebke case in 1996, the Military Tribunal of Rome, with regard to the principle of proportionality to which reprisals were subject, stated:
This is confirmed by the general limit on States’ freedom to act, fixed by international custom and recalled in the preamble to the Hague Convention of 1907 which prohibits injuring fundamental rights established by “ius gentium”, by the customs of civilized States, by the laws of humanity and by the exigencies of public conscience.
In its judgment in the Hass and Priebke case
in 1997, the Military Tribunal of Rome stated that actions taken by way of reprisals could never violate the fundamental and primary requirements of humanity and public conscience.
At the CDDH, during the discussions on the draft Additional Protocol II, Finland stated that “there was universal agreement that reprisals of an inhumane nature were inadmissible”.
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, India cited G. Fitzmaurice and stated:
Reprisals or retaliation under international law are also governed by certain specific principles … Reprisals could not involve acts which are malum in se
such as certain violations of human rights, certain breaches of the laws of war and rules in the nature of ius cogens
, that is to say obligations of an absolute character compliance with which is not dependent on corresponding compliance by others but is requisite in all circumstances unless under stress of literal vis major
… In other words … even where a wrongful act involved the use of a nuclear weapon the reprisal action cannot involve [the] use of a nuclear weapon without violating certain fundamental principles of humanitarian law. In this sense, prohibition of the use of a nuclear weapon in an armed conflict is an absolute one, compliance with which is not dependent on corresponding compliance by others but is a requisite in all circumstances. In view of the above, [the] use of nuclear weapons even by way of reprisal or retaliation, appears to be unlawful.
The Report on the Practice of Iraq, in the chapter dealing with reprisals and with reference to a speech of the Iraqi President in 1983, notes: “As for the activities which constitute a violation to the human rights or the humanitarian law, this can never be reciprocated.”
The Report on the Practice of Italy, having discussed the decisions in the Schintlholzer
, and Hass and Priebke
cases, concludes that it is the opinio juris
of Italy that States acting by way of reprisal could never violate the general limit fixed to their actions by customary law and by the preamble to the 1907 Hague Convention (IV).
In its written statement submitted to the ICJ in the Nuclear Weapons case
in 1995, Malaysia stated that reprisals “must conform in all cases to the laws of humanity and morality”. It referred to Article 86 of the Oxford Manual.
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)(b) and (d) stating that countermeasures shall not affect obligations for the protection of fundamental human rights or other obligations under peremptory norms of general international law, 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”.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case
in 2000, the ICTY Trial Chamber stated: “It should also be pointed out that at any rate, even when considered lawful, reprisals are restricted by … ‘elementary considerations of humanity’.”