Rule 147. Reprisals against Protected Objects
Rule 147. Reprisals against objects protected under the Geneva Conventions and Hague Convention for the Protection of Cultural Property are prohibited.
State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.
The Fourth Geneva Convention provides that reprisals are prohibited against the property of protected persons, i.e., civilians in the power of the adverse party.[1] A number of military manuals prohibit reprisals against the property of persons protected by the Fourth Geneva Convention,[2] whereas several other manuals prohibit reprisals against the property of protected persons in general.[3] The US Field Manual and Operational Law Handbook extend this prohibition to the property of all persons protected by the Geneva Conventions, including the property of the wounded, sick and shipwrecked and that of prisoners of war.[4]
The First and Second Geneva Conventions prohibit reprisals against medical buildings, vessels and equipment protected thereunder.[5] These prohibitions are also stated in numerous military manuals.[6]
The Hague Convention for the Protection of Cultural Property prohibits “any act directed by way of reprisals against cultural property” of great importance to the cultural heritage of a people.[7] The Convention has been ratified by 105 States. As stated in Chapter 12 on cultural property, the fundamental principles of protecting and preserving cultural property in the Convention are widely regarded as reflecting customary international law, as affirmed by the UNESCO General Conference,[8] and by States which are not party to the Convention.[9] Article 53(c) of Additional Protocol I prohibits reprisals against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.[10]
The prohibition of reprisals against cultural property is also found in numerous military manuals and national legislation, including of States not party to the Hague Convention.[11] According to the Report on the Practice of the Islamic Republic of Iran, during the Iran–Iraq War, the Islamic Republic of Iran specifically excluded Iraq’s holy cities from its reprisal actions.[12] There is some contrary practice in that the United Kingdom’s reservation to Additional Protocol I relating to reprisals covers Article 53 on cultural property.[13] This contrary practice appears too limited to prevent the formation of this rule of customary international law prohibiting the attack of cultural objects in reprisal.
In addition to the provisions in the Geneva Conventions and Hague Convention for the Protection of Cultural Property, Additional Protocol I has introduced prohibitions on attacking the following objects by way of reprisal during the conduct of hostilities: civilian objects in general (Article 52); historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples (Article 53); objects indispensable to the survival of the civilian population (Article 54); the natural environment (Article 55); and works and installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations (Article 56).[14]
Practice with respect to reprisals against these civilian objects, to the extent that they are not the property of civilians protected by Article 33 of the Fourth Geneva Convention, is similar, but not as extensive, as that relating to reprisals against civilians during the conduct of hostilities. While the vast majority of States have now specifically committed themselves not to take reprisal action against such objects, because of existing contrary practice,[15] albeit very limited, it is difficult to conclude that there has yet crystallized a customary rule specifically prohibiting reprisals against these civilian objects in all situations. Nevertheless, it is also difficult to assert that a right to resort to such reprisals continues to exist on the strength of the practice of only a limited number of States, some of which is also ambiguous.
No specific instances of reprisals against the above-mentioned objects have been recorded. It is likely that any such reprisals would attract condemnation, in particular as they are likely to affect both these objects and the civilian population.
[1] Fourth Geneva Convention, Article 33 (cited in Vol. II, Ch. 41, § 783).
[2] See, e.g., the military manuals of Argentina (ibid., §§ 794–796), Belgium (ibid., § 799), Benin (ibid., § 801), Canada (ibid., § 804), Dominican Republic (ibid., § 807), Ecuador (ibid., § 808), Germany (ibid., §§ 811–812), Kenya (ibid., § 816), New Zealand (ibid., § 820), Spain (ibid., § 822), United Kingdom (ibid., §§ 825–826) and United States (ibid., §§ 827–833).
[3] See, e.g., the military manuals of Benin (ibid., § 801), Croatia (ibid., § 806), Hungary (ibid., § 813), Indonesia (ibid., § 814), Italy (ibid., § 815), Kenya (ibid., § 816), South Africa (ibid., § 821), Togo (ibid., § 824) and United Kingdom (ibid., § 826); see also the legislation of Colombia (ibid., § 837).
[4] United States, Field Manual (ibid., § 827) and Operational Law Handbook (ibid., § 831).
[5] First Geneva Convention, Article 46 (ibid., § 880); Second Geneva Convention, Article 47 (ibid., § 881).
[6] See, e.g., the military manuals of Australia (ibid., §§ 891–892), Benin (ibid., § 893), Burkina Faso (ibid., § 894), Cameroon (ibid., § 895), Canada (ibid., § 896), Congo (ibid., § 898), Croatia (ibid., § 897), Ecuador (ibid., § 899), France (ibid., §§ 900–901), Germany (ibid., §§ 902–903), Hungary (ibid., § 904), Indonesia (ibid., § 905), Italy (ibid., § 906), Kenya (ibid., § 907), Madagascar (ibid., § 908), Morocco (ibid., § 909), Netherlands (ibid., § 910), New Zealand (ibid., § 911), Nigeria (ibid., § 912), Spain (ibid., § 913), Sweden (ibid., § 914), Togo (ibid., § 915), United Kingdom (ibid., §§ 916–917), United States (ibid., §§ 918–922) and Yugoslavia (ibid., § 923).
[7] Hague Convention for the Protection of Cultural Property, Article 4(4) (ibid., § 950).
[8] See UNESCO, General Conference, Res. 3.5 (cited in Vol. II, Ch. 12, § 419).
[9] See, e.g., United States, Annotated Supplement to the Naval Handbook (ibid., § 103).
[10] Additional Protocol I, Article 53(c) (adopted by consensus) (cited in Vol. II, Ch. 41, § 951).
[11] See the practice of Argentina (ibid., §§ 960 and 991), Australia (ibid., §§ 961–962), Azerbaijan (ibid., § 992), Belgium (ibid., § 963), Benin (ibid., § 964), Burkina Faso (ibid., § 965), Cameroon (ibid., § 966), Canada (ibid., § 967), Colombia (ibid., § 993), Congo (ibid., § 968), Croatia (ibid., § 969), France (ibid., §§ 970–971), Germany (ibid., §§ 972–974), Hungary (ibid., § 975), Indonesia (ibid., § 976), Italy (ibid., §§ 977 and 994), Kenya (ibid., § 978), Netherlands (ibid., §§ 979–980), New Zealand (ibid., § 981), Spain (ibid., §§ 982 and 995), Sweden (ibid., § 983), Switzerland (ibid., §§ 984 and 996), Togo (ibid., § 985), United States (ibid., §§ 987 and 989) and Yugoslavia (ibid., § 990). Benin, Kenya, Togo and the United States are not party to the Hague Convention.
[12] See the Report on the Practice of the Islamic Republic of Iran (ibid., § 1004).
[13] United Kingdom, Reservation made upon ratification of Additional Protocol I (ibid., § 955).
[14] Additional Protocol I, Article 52 (adopted by 79 votes in favour, none against and 7 abstentions) (ibid., § 784), Article 53 (adopted by consensus) (ibid., § 951), Article 54 (adopted by consensus) (ibid., § 1020), Article 55 (adopted by consensus) (ibid., § 1075) and Article 56 (adopted by consensus) (ibid., § 1136).
[15] With respect to reprisals against cultural property, see the practice of Egypt (ibid., § 952), Germany (ibid., § 953), Italy (ibid., § 954), United Kingdom (ibid., §§ 955 and 1009) and United States (ibid., §§ 988 and 1010–1012), but see the practice of the United States prohibiting reprisals against “religious or cultural edifices” (ibid., § 989, see also ibid., § 987). With respect to reprisals against objects indispensable to the survival of the civilian population, see the practice of Egypt (ibid., § 1021), Germany (ibid., § 1022), Italy (ibid., § 1023), United Kingdom (ibid., §§ 1024 and 1064) and United States (ibid., §§ 1065–1067), but see the practice of the United States prohibiting reprisals against such objects (
ibid., § 1052). With respect to reprisals against the natural environment, see the practice of Egypt (ibid., § 1076), Germany (ibid., § 1077), Italy (ibid., § 1078), United Kingdom (ibid., §§ 1079 and 1123) and United States (ibid., §§ 1106 and 1124–1126). With respect to reprisals against works and installations containing dangerous forces, see the practice of Egypt (ibid., § 1137), Germany (ibid., § 1139), Italy (ibid., § 1140), United Kingdom (ibid., § 1183) and United States (ibid., §§ 1184–1186).
