Practice Relating to Rule 145. Reprisals

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Oxford Manual
Article 85 of the 1880 Oxford Manual provides: “Reprisals are formally prohibited in case the injury complained of has been repaired.” 
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 85.
ILC Draft Articles on State Responsibility
Article 53 of the 2001 ILC Draft Articles on State Responsibility, entitled “Termination of countermeasures”, provides: “Countermeasures shall be terminated as soon as the responsible State has complied with its obligations under Part Two [Articles 28–41] in relation to the internationally wrongful act.” 
Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its fifty-third session, 23 April–1 June and 2 July–10 August 2001, UN Doc. A/56/10, 2001, Article 53.
Australia
Australia’s LOAC Manual (2006) states: “In order to qualify as a legitimate reprisal, an act must comply with the following conditions when employed … [including] … Reprisal action may not be taken or continued after the enemy has ceased to commit the conduct complained of.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.18.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Benin
Benin’s Military Manual (1995) states that reprisals “may only be used if: … they cease as soon as the violation [of the law of war] which has triggered them ceases”. 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 13.
Canada
Canada’s LOAC Manual (1999) provides that a reprisal “must be terminated as soon as the original wrongdoer ceases the illegal actions”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-2, § 14.
In another provision, the manual states:
Above all, reprisals are justifiable only to force an adversary to stop its illegal activity. If, for example, a party to an armed conflict commits a breach of law but follows that violation with an expression of regret and promise that it will not be repeated, and even takes steps to punish those responsible, then any action taken by another party to “redress” the situation cannot be justified as a lawful reprisal. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-2, § 17(b).
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Preventative and enforcement measures and the role of protecting powers”:
3. Reprisal is not a retaliatory act or a simple act of vengeance. It must be proportionate to the original wrongdoing, and must be terminated as soon as the original wrongdoer ceases the illegal actions …
6. To qualify as a reprisal, an act must satisfy the following conditions:
b. It must be accomplished for the purpose of compelling the adversary to observe the LOAC.
Reprisals cannot be undertaken for revenge or punishment. They are directed against an adversary in order to induce compliance with the LOAC. Thus, reprisals serve as a law enforcement mechanism. Above all, reprisals are justifiable only to force an adversary to stop its illegal activity. If, for example, a party to an armed conflict commits a breach of law but follows that violation with an expression of regret and promise that it will not be repeated, and even takes steps to punish those responsible, then any action taken by another party to “redress” the situation cannot be justified as a lawful reprisal. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1507.3 and 6.b.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police): “Reprisals are permitted under customary law if they are made in response to an unlawful act of war. Reprisals may be made only if: … they are ended as soon as the violation that triggered them has ceased”. 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Section I.
Chad
Chad’s Instructor’s Manual (2006) states that any reprisal action “shall cease when its objective has been achieved”. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 93.
Croatia
Croatia’s LOAC Compendium (1991) states that a condition for reprisals is that they “cease when [the] purpose [is] achieved”. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 19.
Ecuador
Ecuador’s Naval Manual (1989) provides: “To be valid, a reprisal action must conform to the following criteria: … 7. A reprisal action must cease as soon as the enemy is induced to desist from its unlawful activities and to comply with the law of armed conflict.” 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.3.1.
Hungary
Hungary’s Military Manual (1992) states that a condition for reprisals is that they “cease when [the] purpose [is] achieved”. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 35.
Italy
Italy’s IHL Manual (1991) states: “When the belligerent enemy who committed the unlawful act … has given proper satisfaction, each justification to continue or take [measures of reprisal] stops.” 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 24.
Kenya
Kenya’s LOAC Manual (1997) states: “Under customary law, reprisals are permitted to counter unlawful acts of warfare. They can only be taken if: … they cease when the violation complained of ceases.” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 4.
New Zealand
New Zealand’s Military Manual (1992) states: “A reprisal … must be terminated as soon as the original wrongdoer ceases his illegal actions.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1606(1).
Peru
Peru’s IHL Manual (2004) states with regard to reprisals: “The action taken … must be discontinued once its purpose has been achieved, that is, when the violation of international humanitarian law by the enemy has ceased.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 25.c.(5).
Peru
Peru’s IHL and Human Rights Manual (2010) states: “The action taken … must be discontinued once its purpose has been achieved, that is, when the violation of international humanitarian law by the enemy has ceased.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 29(c)(5), p. 234.
South Africa
South Africa’s LOAC Manual (1996) states: “Reprisals are only permitted according to strict criteria.” 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 34(e).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Reprisals
- Under customary international law, reprisals against persons and objects not protected against reprisals can be justified if the reprisals meet certain criteria, including the following:
- Reprisals must be terminated when the adverse party abandons its unlawful policy. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, pp. 194–195.
Spain
Spain’s LOAC Manual (1996) specifies, among the conditions which must be fulfilled for the lawful taking of reprisals, that the action must cease once its objective has been met. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 3.3.c.(5)(a).
Togo
Togo’s Military Manual (1996) states that reprisals “may only be used if: … they cease as soon as the violation [of the law of war] which has triggered them ceases”. 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 13.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “If the enemy ceases to commit the acts complained of, reprisals must not be resorted to; if reprisals have already begun, they must at once cease.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 649.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states that reprisals can only be taken if “they cease when the violation complained of ceases”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 4, p. 17, § 14(d).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Reprisal action may not be taken or continued after the enemy has ceased to commit the conduct complained of.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.17.
The manual also restates the interpretative declaration made by the UK upon ratification of the 1977 Additional Protocol I (see infra). 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.19.1.
United States of America
The US Naval Handbook (1995) states: “To be valid, a reprisal action must conform to the following criteria: … 7. A reprisal action must cease as soon as the enemy is induced to desist from its unlawful activities and to comply with the law of armed conflict.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.3.1.
United States of America
The Annotated Supplement to the US Naval Handbook (1997), with reference to the rule that a reprisal must cease as soon as the enemy is induced to desist from its unlawful activities, states:
When, for example, one party to an armed conflict commits a breach of law but follows that violation with an expression of regret and promise that it will not be repeated, then any action taken by another party to “right” the situation cannot be justified as a lawful reprisal. 
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 6.2.3.1, footnote 44.
United States of America
The US Naval Handbook (2007) states: “To be valid, a reprisal action must conform to the following criteria: … 7. A reprisal action must cease as soon as the enemy is induced to stop its unlawful activities and to comply with the law of armed conflict.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.4.1.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988), in a provision entitled “Aim and duration of reprisals”, states: “When the enemy stops violating the rules of the international laws of war, the party to the conflict undertaking reprisals is obliged to terminate reprisals.” The manual further provides: “The armed forces of the SFRY [Socialist Federal Republic of Yugoslavia] shall undertake reprisals against the enemy exceptionally and temporarily.” 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, §§ 28 and 29.
Somalia
Somalia’s Military Criminal Code (1963) states:
A commander who orders hostile acts to be carried out by way of reprisals, except in cases where this is permitted by law or by international agreements, or who does not order the cessation of the said acts when he has received official notification that the adversary has made reparation for the illegal act, shall be punished by military confinement for 3 to 10 years. 
Somalia, Military Criminal Code, 1963, Article 360.
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Islamic Republic of Iran
According to the Report on the Practice of the Islamic Republic of Iran, the Islamic Republic of Iran reacted to violations by Iraq of the 1984 agreement relative to the cessation of attacks on cities by resorting to reprisals against Iraqi cities. The report notes, however, that the Islamic Republic of Iran declared that it was ready to end these attacks and respect the agreement as soon as Iraq complied with it. 
Report on the Practice of the Islamic Republic of Iran, 1997, Chapter 1.3.
France
At the CDDH, France made a proposal for a draft article on reprisals within the 1977 Additional Protocol I – which it later withdrew – which read, inter alia, as follows: “3. … The measures must cease, in all events, when they have achieved their objective, namely, cessation of the breach which prompted the measures.” 
France, Draft Article 74 bis Additional Protocol I submitted to the CDDH, Official Records, Vol. III, CDDH/I/ 221/Rev.1, 22 April 1976, p. 324.
Netherlands
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 the reprisal to be lawful, “as soon as the adverse party behaves in compliance with the law the reprisal must end”. 
Netherlands, Lower House of Parliament, Explanatory memorandum for the ratification of the 1977 Additional Protocols, 1983–1984 Session, Doc. 18 277 (R 1247), No. 3, p. 40.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom stated that in the event of violations of Articles 51–55 of the 1977 Additional Protocol I by the adversary, the United Kingdom would regard itself entitled to take measures otherwise prohibited by these Articles, noting, however, that “such measures [will not] be continued after the violations have ceased”. 
United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § (m).
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 53 entitled “Termination of countermeasures”, 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”. 
UN General Assembly, Res. 56/83, 12 December 2001, § 3 and Annex, adopted without a vote.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) stated: “A reprisal … must be terminated as soon as the original wrongdoer ceases his illegal actions.” 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 64.
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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 … the principle of proportionality (which entails not only that the reprisals must not be excessive compared to the precedent unlawful act of warfare, but also that they must stop as soon as that unlawful act has been discontinued). 
ICTY, Kupreškić case, Judgment, 14 January 2000, § 535.
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