Practice Relating to Rule 147. Reprisals against Protected Objects
Section B. Medical objects
Geneva Convention I
Article 46 of the 1949 Geneva Convention I provides: “Reprisals against the … buildings or equipment protected by the Convention are prohibited.”
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 46.
Geneva Convention II
Article 47 of the 1949 Geneva Convention II provides: “Reprisals against … the vessels or the equipment protected by the Convention are prohibited.”
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 47.
Additional Protocol I
Article 20 of the 1977 Additional Protocol I, which refers, inter alia, to Article 12 of the 1977 Additional Protocol I dealing with the protection of medical units, provides: “Reprisals against the persons and objects protected by this Part are prohibited.”
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 20. Article 20 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, p. 71.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Articles 48–58 of the 1977 Additional Protocol I.
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Articles 48–58 of the 1977 Additional Protocol I.
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
UN Secretary-General’s Bulletin
Section 9.6 of the 1999 UN Secretary-General’s Bulletin, which deals under Section 9.3 and 9.5 with the protection of “medical establishments or mobile medical units” and “medical equipment [and] mobile medical units”, states: “The United Nations force shall not engage in reprisals against … establishments and equipment protected under this section.”
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 9.6.
ILC Draft Articles on State Responsibility
Article 50(1) of the 2001 ILC Draft Articles on State Responsibility, dealing with “Obligations not affected by countermeasures”, states: “Countermeasures shall not affect: … (c) Obligations of a humanitarian character prohibiting reprisals.”
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 50(1).
Australia
Australia’s Commanders’ Guide (1994), referring, inter alia, to Article 46 of the 1949 Geneva Convention I, Article 47 of the 1949 Geneva Convention II and Article 20 of the 1977 Additional Protocol I, states: “Protected buildings and facilities should not be the subject of reprisals.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1212.
Australia
Australia’s Defence Force Manual (1994) provides: “Reprisals against … medical personnel, buildings and equipment are forbidden.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 985.
In another provision, the manual further states: “Protected buildings and facilities … should not be the subject of reprisals.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1311.
Australia
Australia’s LOAC Manual (2006) states: “Reprisals against … medical personnel, buildings and equipment are forbidden.”
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.90.
The manual also states: “Reprisals are never lawful if directed against any of the following [including] … medical units, establishments and transports”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.19.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Benin
Benin’s Military Manual (1995) states: “The following prohibitions must be respected: … to launch reprisals against protected persons and property”. It adds that reprisals “may only be used if: … they are carried out only against combatants and military objectives”.
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, pp. 12 and 13.
Burkina Faso
Burkina Faso’s Disciplinary Regulations (1994), in a provision entitled “Laws and customs of war” dealing with the duties of and prohibitions for combatants, states: “It is prohibited to soldiers in combat: … to take hostages, to engage in reprisals or collective punishments”.
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(2).
Cameroon
Cameroon’s Disciplinary Regulations (1975) states: “It is prohibited to soldiers in combat: … to engage in reprisals or collective punishments”.
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 32.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states: “It is prohibited to soldiers in combat … to take hostages, to engage in reprisals or collective punishments”.
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 32.
Canada
Canada’s LOAC Manual (1999), in a part dealing with enforcement measures, states: “Reprisals against the following categories of persons and objects are prohibited: a. the … medical buildings or equipment protected by [the 1949 Geneva Convention I]; b. the … vessels and equipment protected by [the 1949 Geneva Convention II]”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-2, § 15.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Preventative and enforcement measures and the role of protecting powers”:
4. Reprisals against the following categories of persons and objects are prohibited.
a. the wounded, sick, medical personnel, medical buildings or equipment protected by [the 1949 Geneva Convention I];
b. the wounded, sick and shipwrecked persons, the personnel, the vessels and equipment protected by [the 1949 Geneva Convention II];
…
5. Reprisals are permitted against combatants and against objects constituting military objectives.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1507.4.a–b and 5.
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): “The following prohibitions must be respected: … launching reprisals against protected … objects”.
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 III, Section I.
Chad
Chad’s Instructor’s Manual (2006) states that “reprisals are prohibited against … specially protected … property”.
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.
Congo
The Congo’s Disciplinary Regulations (1986), in a provision entitled “International conventions, laws and customs of war”, states: “According to the conventions adhered to by the Congo … it is prohibited [to soldiers in combat]: … to take hostages, to engage in reprisals or collective punishments”.
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32(2).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
Customary law regarded measures of reprisal taken by a belligerent party as one of the lawful means intended to enforce the application of the law.
However, since these measures often led to an escalation of the violence and generally struck persons who were not the true culprits, the law of reprisals of belligerent parties has progressively been restricted. Thus, reprisal measures against protected persons and objects are the subject of an express prohibition in the four 1949 Geneva Conventions.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 38.
Croatia
Croatia’s LOAC Compendium (1991) provides for the prohibition of taking reprisals against “specifically protected persons and objects”.
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 19.
Ecuador
Ecuador’s Naval Manual (1989) states: “Reprisals are forbidden to be taken against: … 4. Hospitals and medical facilities … and equipment, including [hospital] ships, hospitals, [medical] aircraft and medical vehicles.”
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.3.2.
France
France’s Disciplinary Regulations (1975), as amended, states: “By virtue of international conventions regularly ratified or approved: … it is prohibited [to soldiers in combat] … to take hostages, to engage in reprisals or collective punishments”.
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi, Article 10 bis (2).
France
France’s LOAC Manual (2001), in a chapter dealing with means and methods of warfare, states: “The law of armed conflict prohibits … the methods of warfare which consist in the recourse: … to reprisals against non-military objectives”.
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 85.
The manual refers, inter alia, to Article 46 of the 1949 Geneva Convention I, Article 47 of the 1949 Geneva Convention II and Article 20 of the 1977 Additional Protocol I and states: “Reprisals are prohibited against … the property particularly protected.”
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 108.
Germany
Germany’s Military Manual (1992), referring to Article 46 of the 1949 Geneva Convention I, Article 47 of the 1949 Geneva Convention II and Article 20 of the 1977 Additional Protocol I, provides: “It is expressly prohibited by agreement to make reprisals against: … medical facilities and supplies”.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 479.
Germany
Germany’s IHL Manual (1996) provides: “Reprisals are expressly prohibited against … medical establishments and material”.
Germany, ZDv 15/1, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, DSK VV230120023, Bundesministerium der Verteidigung, June 1996, § 320.
Hungary
Hungary’s Military Manual (1992) provides for the prohibition of taking reprisals against “specifically protected persons and objects”.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 35.
Indonesia
Indonesia’s Air Force Manual (1990) provides that a “reprisal is absolutely prohibited against protected persons and objects”.
Indonesia, The Basics of International Humanitarian Law in Air Warfare, Indonesian Air Force, 1990, § 15(c).
Italy
Italy’s IHL Manual (1991), providing for the prohibition of reprisals against, inter alia, “protected persons, medical buildings and material”, states: “The observance of international rules which expressly provide for the obligation to abide by them in any circumstances cannot be suspended by way of reprisals.”
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, § 25.
Kenya
Kenya’s LOAC Manual (1997) states: “It is forbidden: … (e) to carry out reprisals against protected persons or property”.
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 2.
In a chapter dealing with reprisals, the manual further provides that reprisals “are carried out only against combatants and military objectives … The Geneva Conventions and [the 1977 Additional Protocol I] prohibit reprisals against … medical … buildings and equipment.”
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 4.
Madagascar
Madagascar’s Military Manual (1994) instructs soldiers not to take hostages and to refrain from all acts of revenge.
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 5-T, §§ 8 and 9.
Morocco
Morocco’s Disciplinary Regulations (1974), in a provision entitled “Laws and customs of war” dealing with the duties of and prohibitions for combatants, states: “It is prohibited to soldiers in combat: … to take hostages, to engage in reprisals or collective punishments”.
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25(2).
Netherlands
The Military Manual (1993) of the Netherlands, in the chapter dealing with the protection of the wounded and sick and referring to Article 20 of the 1977 Additional Protocol I, states: “Measures of reprisal are prohibited against … medical units and medical means of transportation, in short against all protected persons and objects.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VI-9.
Netherlands
The Military Manual (2005) of the Netherlands states that “reprisals against protected persons and their property are prohibited”.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0808.
The manual further states that “[r]eprisal measures against … medical units and medical means of transport … are prohibited”.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0641.
New Zealand
New Zealand’s Military Manual (1992) states:
Reprisals against the following categories of persons and objects are prohibited:
a) the … buildings or equipment protected by [Article 46 of the 1949 Geneva Convention I];
b) the … vessels and equipment protected by [Article 47 of the 1949 Geneva Convention II].
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1606(2).
Nigeria
Nigeria’s Military Manual (1994), in a part dealing with the 1949 Geneva Convention I, states that reprisals “are prohibited ‘against the … buildings or equipment protected by the convention’ (Art. 46)”.
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 14, § 5.
Peru
Peru’s IHL Manual (2004) states that reprisals against “specifically protected … property” are prohibited.
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.(2).(d).
Peru
Peru’s IHL and Human Rights Manual (2010) states that reprisals against “specifically protected … property” are prohibited.
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)(2)(d), p. 234.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Nature of the Protection of Military Medical Objects (Buildings, Transport and Material) and Religious Objects
…
- Reprisals against the wounded, sick, personnel, buildings or equipment that are protected by the LOAC [law of armed conflict] are prohibited. ([1949] Geneva Convention [I] article 46.)
…
Conclusion
…
Military medical and religious establishments, units and transports are also specifically protected, as long as they are exclusively used for medical purposes. … Reprisals against them are prohibited.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 64, 66, 67 and 68–69.
The manual also states:
Reprisals
…
- The LOAC prohibits reprisals against the following:
…
- Specifically protected persons and objects[.]
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, p. 194.
Spain
Spain’s LOAC Manual (1996), referring to Article 46 of the 1949 Geneva Convention I, Article 47 of the 1949 Geneva Convention II and Article 20 of the 1977 Additional Protocol I, lists among the persons and objects against whom/which the taking of reprisals is prohibited “the wounded, sick and shipwrecked, as well as specially protected persons and property”.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 3.3.c.(5)(b).
Spain
Spain’s LOAC Manual (2007), referring to Article 46 of the 1949 Geneva Convention I, Article 47 of the 1949 Geneva Convention II and Article 20 of the 1977 Additional Protocol I, lists “property under special protection” among the objects against which the taking of reprisals is prohibited.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 3.3.c.(5).
Sweden
Sweden’s IHL Manual (1991), while noting that the Swedish IHL Committee strongly discourages even this possibility in view of its manifestly inhuman effect, states:
Under Additional Protocol I, reprisals are permitted only against military personnel. A state acceding to Additional Protocol I thereby accepts a limitation of its freedom to employ reprisals. The [Swedish International Humanitarian Law] Committee believes that this involves a considerable humanitarian advance.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.5, p. 89.
Togo
Togo’s Military Manual (1996) states: “The following prohibitions must be respected: … to launch reprisals against protected persons and property.” It adds that reprisals “may only be used if: … they are carried out only against combatants and military objectives”.
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, pp. 12 and 13.
Ukraine
Ukraine’s IHL Manual (2004) states: “Reprisals are prohibited against … objects enjoying special protection”.
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.18.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958), in a part dealing with reprisals and referring, inter alia, to Articles 14 and 46 of the 1949 Geneva Convention I and Articles 16 and 47 of the 1949 Geneva Convention II, states: “Reprisals against … buildings, equipment and vessels protected by [the 1949 Geneva Conventions I and II] … are … prohibited.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 644.
In a footnote relating to this provision, the manual notes: “The effect of this rule is that reprisals are unlawful against all persons except enemy combatants and those few classes of civilians who are not protected persons.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 644, footnote 2.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides: “The Geneva Conventions and [the 1977 Additional Protocol I] prohibit reprisals against … medical and religious … buildings and equipment”.
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, § 16.
United States of America
The US Air Force Pamphlet (1976), referring to Article 46 of the 1949 Geneva Convention I and Article 47 of the 1949 Geneva Convention III, provides:
Reprisals against the … buildings or equipment protected by [the 1949 Geneva Convention I] are prohibited … Reprisals against … the vessels or the equipment protected by [the 1949 Geneva Convention II] are prohibited. 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.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 10-7(b)(1).
The Pamphlet further states:
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.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 10-7(b)(2).
United States of America
The US Air Force Commander’s Handbook (1980), under the heading “Persons and Things Not Subject to Reprisals”, states: “Under the 1949 Geneva Conventions, reprisals may not be directed against hospitals.”
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 8-4(c).
United States of America
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.”
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. Q-182.
United States of America
The US Naval Handbook (1995) states: “Reprisals are forbidden to be taken against: … 4. Hospitals and medical facilities … and equipment, including hospital ships, medical aircraft, and medical vehicles.”
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), § 6.2.3.2.
United States of America
The Annotated Supplement to the US Naval Handbook (1997), referring to Article 46 of the 1949 Geneva Convention I and Article 47 of the 1949 Geneva Convention II, states: “Fixed establishments and mobile medical units of the medical service, hospital ships, coastal rescue craft and their installations, medical transports, and medical aircraft are immune from 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, § 6.2.3.2, footnote 50.
United States of America
The US Naval Handbook (2007) states: “Reprisals are forbidden to be taken against: … 4. Hospitals and medical facilities … and equipment, including hospital ships, medical aircraft, and medical vehicles.”
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, § 6.2.4.2.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “The laws of war prohibit reprisals against the following persons and objects: … medical units, medical establishments, medical transports and medical material”.
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, § 31(2).
Azerbaijan
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides:
The Armed Forces of [the] Azerbaijan Republic, the appropriate authorities and governmental bodies, as an answer to the same actions of the adverse party to the conflict or to put an end to these all, don’t give opportunity to carry out any action which is considered to be [a] measure of pressure concerning … medical organizations … During military operations in the condition of final necessity the measures taken compulsorily by the Armed Forces of [the] Azerbaijan Republic can’t be considered as such measures of pressure.
Azerbaijan, Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War, 1995, Article 16.
Colombia
Under Colombia’s Penal Code (2000), reprisals against protected persons and objects taken “in the event of and during armed conflict” are punishable offences.
Colombia, Penal Code, 2000, Article 158.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Denmark, Military Criminal Code, 2005, § 36(2).
Italy
Italy’s Law of War Decree (1938), as amended in 1992, states: “Respect for rules adopted in order to comply with international conventions which expressly exclude reprisals cannot be suspended.”
Italy, Law of War Decree, 1938, as amended in 1992, Article 8.
Germany
In its judgment in the Dover Castle case in 1921, the German Reichsgericht held that the accused, the commander of a submarine from which a British hospital ship had been torpedoed, was in the circumstances of the case entitled to hold the opinion that the measures taken by the German authorities against foreign hospital ships were not contrary to international law but were legitimate reprisals. The accused had pleaded that in sinking the ship he had merely carried out an order of the German Admiralty, which, in the belief that the enemy utilized their hospital ships for military purposes in violation of the 1907 Hague Convention (X), issued a number of orders instructing the submarines to attack hospital ships as vessels of war.
Germany, Reichsgericht, Dover Castle case, Judgment, 4 June 1921.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
…
The accused’s position is stated to be that this Court has no jurisdiction to try him.
…
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
…
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
…
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
…
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
…
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
…
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
…
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
…
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
…
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
…
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
…
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
…
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
…
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Australia
In 1991, in briefing notes prepared for a debate on the Geneva Convention Amendment Bill in Australia’s House of Representatives, the Australian Department of Foreign Affairs and Trade expressed the view that:
The extension in [the 1977 Additional Protocol I of the prohibition of reprisals] is to civilian, cultural and other non-military objects. It was felt that an Australian reservation on this point, while leaving the way open for us to use such reprisals, would not only allow Australia to be portrayed as barbaric but also leave such Australian objects open to attack in enemy reprisals, in return for very little military advantage. This is now a settled Australian Defence Force view.
Australia, Department of Foreign Affairs and Trade, Minute on the Geneva Protocols, File 1710/10/3/1, 13 February 1991, § 5.
Colombia
At the CDDH, following the adoption of Article 20 of the 1977 Additional Protocol I, Colombia stated that it “was opposed to any kind of reprisals”.
Colombia, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, § 34.
Egypt
Upon ratification of the 1977 Additional Protocols I and II, Egypt stated:
The Arab Republic of Egypt, while declaring its commitment to respecting all the provisions of Additional Protocols I and II, wishes to emphasize, on the basis of reciprocity, that it upholds the right to react against any violation by any party of the obligations imposed by Additional Protocols I and II with all means admissible under international law in order to prevent any further violation.
Egypt, Declaration made upon ratification of the 1977 Additional Protocols I and II, 9 October 1992, § 3.
Egypt
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Egypt stated:
Reprisals are prohibited against … medical services and personnel … The prohibition applies in respect of all weapons. In consequence, they (i.e. protected persons and objects) can never become targets of any attack, including nuclear attacks.
Egypt, Written statement submitted to the ICJ, Nuclear Weapons case, 20 June 1995, § 46.
Egypt
In its written comments on other written statements submitted to the ICJ in the Nuclear Weapons case in 1995, Egypt stated:
Reprisals are prohibited against protected persons and objects according to the Geneva Conventions of 1949 and their additional Protocols. This prohibition of reprisal is absolute and applies to the use of all weapons. In consequence, the protected persons and objects can never become targets of any attack, including nuclear attacks. The provisions of the Conventions and the Protocols carrying this prohibition of reprisals against protected persons and objects are considered declaratory of customary law.
Egypt, Written comments submitted to the ICJ, Nuclear Weapons case, September 1995, § 43.
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 may not involve any actions prohibited by the Geneva Conventions of 1949.”
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.
Germany
In 1990, during a parliamentary debate on the ratification of the 1977 Additional Protocols, a member of the German Parliament called the prohibition of reprisals as contained in the 1977 Additional Protocol I “newly introduced rules”.
Germany, Lower House of Parliament, Speech by Günter Verheugen, Member of Parliament, 20 September 1990, Plenarprotokoll 11/226, p. 17919.
Germany
Upon ratification of the 1977 Additional Protocol I, Germany declared:
The Federal Republic of Germany will react against serious and systematic violations of the obligations imposed by Additional Protocol I … with all means admissible under international law in order to prevent any further violation.
Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 6.
Israel
According to the Report on the Practice of Israel, the Israel Defense Forces (IDF) do not condone nor conduct reprisals against persons or objects protected by the 1949 Geneva Conventions.
Report on the Practice of Israel, 1997, Chapter 2.9.
Italy
Upon ratification of the 1977 Additional Protocol I, Italy stated:
Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I … with all means admissible under international law in order to prevent any further violation.
Italy, Declarations made upon ratification of the 1977 Additional Protocol I, 27 February 1986, § 10.
Jordan
According to the Report on the Practice of Jordan: “The prohibition of belligerent reprisals against protected persons and property is viewed as customary law … In practice, Jordan never resorted to attacks by way of reprisal.”
Report on the Practice of Jordan, 1997, Chapter 2.9.
Philippines
The Report on the Practice of the Philippines states: “Reprisals are generally prohibited.”
Report on the Practice of Philippines, 1997, Chapter 2.9.
Poland
At the CDDH, Poland 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: “Insert a new article after [draft] Article 70 worded as follows: ‘Measures of reprisal against persons and objects protected by the Conventions and by the present Protocol are prohibited’.”
Poland, Proposal on a new Article 70 bis Additional Protocol I submitted to the CDDH, Official Records, Vol. III, CDDH/III/103, 1 October 1974, p. 313.
Solomon Islands
In 1994, in its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case, Solomon Islands, referring to Articles 20, 51(6), 52(1), 53, 54(4), 55(2) and 56(4) of the 1977 Additional Protocol I, stated:
During hostilities, it is forbidden to resort to reprisals against medical installations, transportation and units … The prohibition applies in respect of all weapons, including nuclear weapons. This rule had previously been established in a general manner by Art. 60(5) of the 1969 Vienna Convention of the Law of Treaties … A similar provision is set forth in paragraph 7 of the UN General Assembly resolution 2675 (XXV) … The prohibition of reprisals in these situations appears also in Principle 1, paragraph 6 of UN General Assembly resolution 2625 (XXV) on friendly relations. Even if, in that case, it relates to jus ad (or contra) bellum rather than jus in bello, it is nonetheless applicable to the second. It follows from the above that reprisals can, in no circumstances, be lawful against this category of targets.
Solomon Islands, Written statement submitted to the ICJ, Nuclear Weapons (WHO) case, 9 June 1994, § 3.75.
United Kingdom of Great Britain and Northern Ireland
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the United Kingdom stated:
To be lawful, a belligerent reprisal must meet two conditions. First, it must not be directed against persons or objects against which the taking of reprisals is specifically prohibited … The Geneva Conventions of 1949 prohibit the taking of reprisals against persons or objects protected by the Conventions.
United Kingdom, Written statement submitted to the ICJ, Nuclear Weapons case, 16 June 1995, pp. 58–59.
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: “Any measures thus taken by the United Kingdom … will not involve any action prohibited by the Geneva Conventions of 1949.”
United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § (m).
United States of America
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”.
United States, Message from the US President transmitting the 1977 Additional Protocol II to the US Senate for advice and consent to ratification, Treaty Doc. 100-2, 29 January 1987.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State, referring to Articles 12–20 of the 1977 Additional Protocol I, affirmed:
We … support the principle that medical units, including properly authorized civilian medical units, be respected and protected at all times and not be the object of attacks or reprisals … Further, we support the principle that the relevant provisions of the 1949 Geneva Conventions be applied to all properly authorized medical vehicles, hospital ships, and other medical ships and craft, regardless of the identity of the wounded, sick, and shipwrecked that they serve. This is, in effect, a distillation of much of what appears in articles 18 through 23 [of the 1977 Additional Protocol I].
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, p. 423.
United States of America
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the United States noted that it considered that the provisions of the 1977 Additional Protocol I regarding reprisals were “new rules”.
United States, Written statement submitted to the ICJ, Nuclear Weapons case, 20 June 1995, p. 31.
UN General Assembly
In 2001, the UN General Assembly adopted a resolution on the responsibility of States for internationally wrongful acts, to which the 2001 ILC Draft Articles on State Responsibility, and thus Article 50(1)(c) stating that “[c]ountermeasures shall not affect … obligations of a humanitarian character prohibiting reprisals”, 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), referring to Article 46 of the 1949 Geneva Convention I and Article 47 of the 1949 Geneva Convention II, stated: “Reprisals against the following categories of persons and objects are specifically prohibited: (a) The … buildings or equipment protected by the First Geneva Convention … (b) The … vessels and equipment protected by the Second Geneva Convention.”
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 65.
The Commission further stated:
In international armed conflicts to which the four Geneva Conventions and Additional Protocol I apply, lawful reprisals … must be directed exclusively against combatants or other military objectives subject to the limitations contained in the Geneva Conventions, Protocol I and customary international law of armed conflicts. In international armed conflicts where Additional Protocol I does not apply, reprisals may be directed against a much wider category of persons and objects, but subject to the limitations of customary international law of armed conflicts.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 66.
No data.
No data.
No data.
No data.
No data.
