United States of America
Practice Relating to Rule 147. Reprisals against Protected Objects
Section A. Civilian objects in general
The US Field Manual (1956), referring to Article 13 of the 1949 Geneva Convention III and Article 33 of the 1949 Geneva Convention IV, states: “Reprisals against the persons or property of prisoners of war, including the wounded and sick, and protected civilians are forbidden.”
The US Air Force Pamphlet (1976), referring to Article 33 of the 1949 Geneva Convention IV, provides:
No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Reprisals against protected persons and their property are prohibited.
The Pamphlet further provides:
Reprisals are forbidden, under all circumstances, against the persons or objects referenced above in accordance with the 1949 Geneva Conventions. At least some, and possibly all, of these prohibitions are regarded as customary law and are binding regardless of whether the adversary is a party to the Geneva Conventions. For definitions as to persons or objects protected under the 1949 Geneva Conventions, applicable articles of those documents must be consulted.
The US Air Force Commander’s Handbook (1980), under the heading “Persons and Things Not Subject to Reprisals”, lists a number of persons and objects protected under the 1949 Geneva Conventions against whom reprisals are prohibited. It adds, however:
A Protocol to the 1949 Geneva Conventions would expand this list to include all civilians and civilian property on land … The United States signed this Protocol in 1977, but has not yet ratified it. Consult the Staff Judge Advocate for further guidance.
The US Soldier’s Manual (1984), in the part which deals with the treatment of civilians and private property, states: “The Geneva Conventions forbid retaliating against civilians for the actions of enemy soldiers.”
The US Operational Law Handbook (1993) provides:
The following measures are expressly prohibited by the law of war and are not excusable on the basis of military necessity:
m. Reprisals against persons or property protected by the Geneva Conventions, to include the wounded, sick, or shipwrecked, prisoners of war, detained personnel, civilians [and] their property.
The US Naval Handbook (1995) provides: “Reprisals may be taken against enemy armed forces, enemy civilians other than those in occupied territory, and enemy property.” It states, however: “Reprisals are forbidden to be taken against: 1. … interned civilians … 3. Civilians in occupied territory.”
The Annotated Supplement to the US Naval Handbook (1997), referring to Article 33 of the 1949 Geneva Convention IV, states: “Also immune from reprisals under the Geneva Conventions are the property of such inhabitants [i.e. of occupied territory], enemy civilians in a belligerent’s own territory, and the property of such civilians.”
The US Naval Handbook (2007) states: “Reprisals may be taken against … enemy property.”
In 1987, in submitting the 1977 Additional Protocol II to the US Senate for advice and consent to ratification, the US President announced his decision not to ratify the 1977 Additional Protocol I, stating, inter alia
, that the Additional Protocol I “fails to improve substantially the compliance and verification mechanisms of the 1949 Geneva Conventions and eliminates an important sanction against violations of those Conventions”.
In 1987, the Deputy Legal Adviser of the US Department of State affirmed that the United States did not support “the prohibition on reprisals in article 51 of the 1977 Additional Protocol I and subsequent articles” and did not consider it part of customary law.
According to an army lawyer who participated in the review of the 1977 Additional Protocol I by the US Joint Chiefs of Staff:
Article 51, paragraph 6, and article 52, paragraph 1, of [the 1977 Additional Protocol I] prohibit reprisals against the civilian population or civilian objects of en enemy nation, respectively. These provisions are not a codification of customary international law, but, in fact, a reversal of that law. The military review considered whether surrender of these rights would advance the law of war, or threaten the continued respect for the rule of law in war. It was concluded that removal of this legal right placed any further respect for the rule of law by certain nations in jeopardy …
The American review recognized the historic pattern for abuse of U.S. and allied prisoners of war by their enemies, and concluded that a broad reservation to the prohibition of reprisals contained in articles 51 and 52 of [the 1977 Additional Protocol I] was essential as a legitimate enforcement mechanism in order to ensure respect for the law of war.
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the United States stated:
Various provisions of Additional Protocol I contain prohibitions on reprisals against specific types of persons or objects, including … civilian objects (Article 52(1)) … These are among the new rules established by the Protocol that … do not apply to nuclear weapons.