Rule 146. Belligerent reprisals against persons protected by the Geneva Conventions are prohibited.
State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.
The Geneva Conventions prohibit the taking of belligerent reprisals against persons in the power of a party to the conflict, including the wounded, sick and shipwrecked, medical and religious personnel, captured combatants, civilians in occupied territory and other categories of civilians in the power of an adverse party to the conflict.
This prohibition is also contained in numerous military manuals.
It is also set forth in the legislation of several States.
Official statements and reported practice further support this prohibition.
The trend to ban reprisals against civilians during the conduct of hostilities was introduced in a UN General Assembly resolution adopted in 1970, which affirmed the principle that “civilian populations, or individual members thereof, should not be the object of reprisals” as a basic principle for the protection of civilian populations in armed conflict.
The prohibition on taking reprisals against civilians during the conduct of hostilities is codified in Article 51(6) of Additional Protocol I.
It is also found in both the original and amended versions of Protocol II to the Convention on Certain Conventional Weapons regulating the use of landmines, booby-traps and other devices.
At the time of the adoption of the Additional Protocols, the prohibition of reprisals introduced in Article 51(6) of Additional Protocol I was a new rule. In the vote on Article 51 as a whole, France voted against and 16 States abstained.
Of the 16 abstaining States, 10 have since become party to Additional Protocol I without entering a reservation.
Three States which have not ratified Additional Protocol I, namely Indonesia, Malaysia and Morocco, nevertheless support the prohibition of reprisals against civilians in general.
The vast majority of States have, as a result, committed themselves not to make civilians the object of reprisals. Although practice in favour of a specific ban on the use of reprisals against all civilians is widespread and representative, it is not yet uniform. The United States, which is not a party to Additional Protocol I, has indicated on several occasions that it does not accept such a total ban, even though it voted in favour of Article 51 of Additional Protocol I and ratified Protocol II to the Convention on Certain Conventional Weapons without making a reservation to the prohibition on reprisals against civilians contained therein.
The United Kingdom also voted in favour of Article 51, but on becoming a party to Additional Protocol I, made a reservation to Article 51 which reproduces a list of stringent conditions for resorting to reprisals against an adversary’s civilians.
It has also ratified Protocol II to the Convention on Certain Conventional Weapons without making a reservation to the prohibition on reprisals against civilians contained therein. Egypt, France, Germany and Italy also made a declaration upon ratification of Additional Protocol I in relation to the articles providing protection to the civilian population, but these are ambiguous in that they indicate that these States will react to serious and repeated violations with means admissible under international law to prevent further violations.
In referring back to what is lawful under international law, these declarations beg the question as to whether reprisals against civilians are lawful or not. Subsequent practice of these States helps to assess their current position on the issue of reprisals against civilians.
At the adoption of Additional Protocol I, Egypt strongly supported the prohibition of reprisals against civilians and, more recently, in its submissions before the International Court of Justice in the Nuclear Weapons case
, it stated that it considered this prohibition to be customary.
The recent military manuals of France and Germany prohibit reprisals against civilians, citing Article 51(6) of Additional Protocol I.
Italy’s IHL Manual, however, supports a narrow possibility of reprisals against civilians in very general terms by stating that “reprisals cannot be directed against the civilian population, except in case of absolute necessity”.
The other practice of note is the series of reprisals that the Islamic Republic of Iran and Iraq, both not party to Additional Protocol I, directed at each other’s cities. In press releases in 1983 and 1984, the ICRC stated that civilians must not be the object of reprisals and appealed to the Islamic Republic of Iran and Iraq to cease the bombardment of civilians.
In 1984, the UN Secretary-General, in a message addressed to the Presidents of the Islamic Republic of Iran and Iraq, stated that “deliberate attacks on civilian areas cannot be condoned by the international community”. He went on to state that reprisals and counter-reprisals resulted in loss of life and suffering to the civilian population and that “it is imperative that this immediately cease”.
In a statement by its President in 1986, the UN Security Council deplored “the violation of international humanitarian law and other laws of armed conflict” and expressed its “deepening concern over the widening of the conflict through the escalation of attacks on purely civilian targets”.
In 1987, both the Islamic Republic of Iran and Iraq, in letters to the UN Secretary-General, justified their attacks on the other’s cities as limited retaliatory measures to stop such attacks by the adversary.
In 1988, in another statement by its President, the UN Security Council strongly deplored “the escalation of hostilities … particularly the attacks against civilian targets and cities” and stated that “the members of the Security Council insist that the Islamic Republic of Iran and Iraq immediately cease all such attacks and desist forthwith from all acts that lead to the escalation of the conflict”.
Although the two UN Security Council statements do not explicitly use the term “reprisals”, it is significant that they condemn the escalation of attacks on civilians. The second statement was made after the Islamic Republic of Iran and Iraq had sent the letters justifying the basis of the reprisals taken, which would suggest that the UN Security Council did not accept both parties’ arguments.
Historically, reprisal action has tended to have the effect of escalating attacks on civilians, rather than stopping them, a fact commented on in several military manuals.
As explained by the US Naval Handbook, for example, “there is always a risk that [reprisal] will trigger retaliatory escalation (counter-reprisals) by the enemy. The United States has historically been reluctant to resort to reprisal for just this reason.”
Enforcement action based on attacking civilians not taking a direct part in hostilities does not fit well either with the development of human rights law and the importance given to the right to life. In addition, since the Second World War, both human rights law and international humanitarian law have recognized that civilians not taking a direct part in hostilities cannot be held responsible for their governments’ violations of international law and therefore cannot be subject to attack (see Rule 1) nor to collective punishment (see Rule 103).
Because of existing contrary practice, albeit very limited, it is difficult to conclude that there has yet crystallized a customary rule specifically prohibiting reprisals against civilians during the conduct of hostilities. 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. Hence, there appears, at a minimum, to exist a trend in favour of prohibiting such reprisals. The International Criminal Tribunal for the former Yugoslavia, in its review of the indictment in the Martić case
in 1996 and in its judgment in the Kupreškić case
in 2000, found that there was such a prohibition already in existence, based largely on the imperatives of humanity or public conscience.
These are important indications, consistent with a substantial body of practice now condemning or outlawing such reprisals.