Related Rule
Italy
Practice Relating to Rule 145. Reprisals
Italy’s IHL Manual (1991) states:
The purpose of a reprisal is to induce the enemy to respect its obligations under international law and can be carried out either by means of acts similar to those illegally committed or by means of acts of a different nature. Therefore, a reprisal does not have the nature of a punishment, but is only a measure of direct coercion in inducing the enemy to respect its obligations towards [Italy] … Given the nature and scope of a reprisal, it can, as a general rule, only be directed against the belligerent that violated the laws of war with regard to [Italy]. 
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, § 23.
The manual further states that the Italian Government has declared in international fora that, in response to grave and systematic violations of the obligations relative to the protection of the civilian population and civilian objects, Italy will react by every measure permitted under international law to prevent the recurrence of such violations. 
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, § 26.
Italy’s Law of War Decree (1938), as amended in 1992, states: “Reprisals have the aim of inducing the enemy to observe the obligations deriving from international law and can be carried out either by means of acts similar to those committed [by the enemy] or by means of acts of a different nature.” 
Italy, Law of War Decree, 1938, as amended in 1992, Article 8.
Italy’s Wartime Military Penal Code (1941) provides for the punishment of a commander who orders the taking of acts of reprisal – other than those permitted under the law or international conventions – or who does not order them to be stopped. 
Italy, Wartime Military Penal Code, 1941, Article 176.
In the Priebke case in 1996, the Military Tribunal of Rome stated that reprisals “are to carry out an act in order to bring a violation to an end or to deter the commission of other violations [of international law]”. It went on to state that “a reprisal is based on the need to recognise the injured State a means of self-help allowing it to attack any interest of the offending State”. The Tribunal further stated:
It is useful to underline that a reprisal must have as its objective prevention or repression, but not revenge. It must aim for the cessation or non-repetition of an illegitimate injurious act, and must be carried out in a direct manner for this purpose and must not be more serious as the [initial] violation. Otherwise it becomes an act which is itself unjust and illegitimate, giving rise to an endless spiral of disproportionate reactions. 
Italy, Military Tribunal of Rome, Priebke case, Judgment in Trial of First Instance, 1 August 1996, Section 7.
In the Hass and Priebke case in 1997, the Military Tribunal of Rome made a similar statement to the one made in its judgment in the Priebke case in 1996 and added: “Reprisals basically are a sanction, that is a reaction to an unlawful act. The unlawfulness of the act to which it is replying gives lawfulness to the sanctional activities.” It further recalled the definition of reprisals contained in Italy’s Law of War Decree as amended. 
Italy, Military Tribunal of Rome, Hass and Priebke case, Judgment in Trial of First Instance, 22 July 1997, Section 4.
In its relevant parts, this judgment was confirmed by Italy’s Military Appeals Court and the Supreme Court of Cassation. 
Italy, Military Appeals Court, Hass and Priebke case, Judgment on Appeal, 7 March 1998; Supreme Court of Cassation, Hass and Priebke case, Judgment in Trial of Third Instance, 16 November 1998.
During discussions on reprisals in Committee I of the CDDH, the representative of Italy stated: that “from the standpoint of the required conditions laid down, he could accept the [French] proposal [on a prohibition of reprisals] in principle”. 
Italy, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.47, 29 April 1976, p. 77, § 48.
In its judgment in the Hass and Priebke case in 1997, the Military Tribunal of Rome stated that, according to the unanimous views of writers, reprisals were legitimate only when they appeared as the only possible reaction because all possible means of identification and capture of the author of the unlawful act had been exhausted. 
Italy, Military Tribunal of Rome, Hass and Priebke case, Judgment in the Trial of First Instance, 22 July 1997, Section 4.
In its relevant parts, this judgment was confirmed by the Military Appeals Court and the Supreme Court of Cassation. 
Italy, Military Appeals Court, Hass and Priebke case, Judgment on Appeal, 7 March 1998; Supreme Court of Cassation, Hass and Priebke case, Judgment in Trial of Third Instance, 16 November 1998.
Italy’s IHL Manual (1991) provides: “The reprisal must be sufficiently proportionate to the gravity of the offence suffered and may not consist, except in cases of absolute necessity, in belligerent acts directed against the civilian population.” 
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, § 23.
In its judgment in the Kappler case in 1948, Italy’s Military Tribunal of Rome found that the massacre of 335 prisoners in the Ardeatine Caves, ordered as a reprisal for a bomb attack by the Italian resistance which killed 33 German military policemen, was disproportionate, because of the ratio of 10:1 and because of the ranks of the executed Italian prisoners. 
Italy, Military Tribunal of Rome, Kappler case, Judgment, 20 July 1948.
In its judgment in the Priebke case in 1996 in connection with the Ardeatine Caves massacre during the Second World War, Italy’s Military Tribunal of Rome stated: “The principle of proportionality has never been questioned by international law scholars, as it finds its origin in the unquestionable axioms of rationality.” The Tribunal found that the executions were grossly disproportionate. 
Italy, Military Tribunal of Rome, Priebke case, Judgment in Trial of First Instance, 1 August 1996, Section 7.
In its judgment in the Hass and Priebke case in 1997 concerning the Ardeatine Caves massacre during the Second World War, Italy’s Military Tribunal of Rome, with respect to the conditions required for a reprisal, stated: “Also such a reaction must be proportionate to the damage suffered.” It found unacceptable the disproportion between the deaths of 33 German soldiers and the execution of 335 persons. 
Italy, Military Tribunal of Rome, Hass and Priebke case, Judgment in Trial of First Instance, 22 July 1997, Section 4.
In its relevant parts, the decision was confirmed by the Military Appeals Court and the Supreme Court of Cassation. 
Italy, Military Appeals Court, Hass and Priebke case, Judgment on Appeal, 7 March 1998; Supreme Court of Cassation, Hass and Priebke case, Judgment in Trial of Third Instance, 16 November 1998.
Italy’s IHL Manual (1991) provides: “A reprisal is ordered by the Head of Government or by the authorities to which the power to order them has been lawfully delegated.” 
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, § 27.
Italy’s Law of War Decree (1938), as amended in 1992, provides:
Reprisals … are ordered by means of a “decree” of il Duce or by a delegated authority from him.
Reprisals … inasmuch as they consist of military operations, can also be ordered by the supreme commander, or, when an immediate or exemplary action is necessary, by any other commander. 
Italy, Law of War Decree, 1938, as amended in 1992, Article 10.
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.
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. 
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, § 28.
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”. 
Italy, Military Tribunal of Rome, Kappler case, Judgment, 20 July 1948.
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. 
Italy, Military Tribunal of Rome, Priebke case, Judgment in Trial of First Instance, 1 August 1996, Section 7.
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. 
Italy, Military Tribunal of Rome, Hass and Priebke case, Judgment in Trial of First Instance, 22 July 1997, Section 4.
The Report on the Practice of Italy, having discussed the decisions in the Schintlholzer, Priebke, 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). 
Report on the Practice of Italy, 1997, Chapter 2.9.