Practice Relating to Rule 145. Reprisals

1. Before taking countermeasures, an injured State shall:

2. Notwithstanding paragraph 1(b), the injured State may take such urgent countermeasures as are necessary to preserve its rights. 

In order to qualify as a legitimate reprisal, an act must comply with the following conditions when employed … [including] … The victim of a violation must first exhaust other reasonable means of securing compliance before reprisals can be justified. 

To qualify as a reprisal, an act must satisfy the following conditions:

1. In the event of serious or persistent breaches of the LOAC it may be necessary for the adverse party to resort to a reprisal in an attempt to terminate the illegality. [A] reprisal is an illegal act resorted to after the adverse party has performed illegal acts and has refused to stop after being called upon to do so.

…

6. To qualify as a reprisal, an act must satisfy the following conditions:

As reprisals violate the law of war in response to a breach of that law committed by the enemy, they must be the last resort in order to restore respect for the law of war. Consequently, to carry out reprisals, a formal prior warning must be issued. 

To be valid, a reprisal action must conform to the following criteria:

In principle, reprisals in warfare are prohibited, i.e. an act which categorize[s] against the laws of war and aim[s] to [answer to] the breach of the laws of war treaties committed by the adverse party. The reprisal could be allowed if, although it has been warned, the adverse party still continue[s] to violate the laws of war. 

On the basis of customary law, it used to be assumed that reprisals were allowed in principle by the law of war, provided that a number of conditions were met:

(c) There must be reasonable notice that reprisals will be taken. What degree of notice is required will depend on the particular circumstances of each case. Notice is normally given after the violation but may, in appropriate circumstances, predate the violation. An example of notice is an appeal to the transgressor to cease its offending conduct and punish those responsible. Thus, such an appeal may serve both as a plea for compliance and a notice to the adverse Party that reprisals will be undertaken.

(d) The victim of a violation must first exhaust other reasonable means of securing compliance in order to justify taking reprisal. 

(3) Reprisals may only be taken as a last resort to enforce international humanitarian law and make the enemy comply with its provisions.

(4) A formal warning must be given to the enemy, notifying it of the action that will be taken if it continues to commit or repeats its violations of international humanitarian law. 

(3) Reprisals may only be taken as a last resort to enforce international humanitarian law and make the enemy comply with its provisions.

(4) A formal warning must be given to the enemy, notifying it of the action that will be taken if it continues to commit or repeats its violations of international humanitarian law. 

An infraction of the laws of war having been definitely established, every effort should first be made to detect and punish the actual offenders. Only if this is impossible may recourse be had to reprisals, if the injured belligerent is of the opinion that the facts warrant them. As a rule, the injured party must not at once resort to reprisals, but must first lodge a complaint with the enemy (or with a neutral Power, for transmission to the enemy) with a view to preventing any repetition of the offence and to securing the punishment of the guilty. This course should always be pursued unless the safety of the troops requires immediate drastic action and the persons who actually committed the offences cannot be secured. 

16.17. In order to qualify as a legitimate reprisal, an act must comply with the following conditions when employed:

Priority to Other Remedies. Other measures of securing compliance with the law of war should normally be exhausted before resort is had to reprisals. This course should be pursued unless the safety of the troops requires immediate drastic action and the persons who actually committed the offences cannot be secured. Even when appeal to the enemy for redress has failed, it may be a matter of policy to consider, before resorting to reprisals, whether the opposing forces are not more likely to be influenced by a steady adherence to the law of war on the part of their adversary. 

(a) The action is taken in the last resort, in order to prevent the adversary from behaving illegally in the future.

…

(c) In order to be considered a reprisal, an act must have the following characteristics when employed:

To be valid, a reprisal action must conform to the following criteria:

To be valid, a reprisal action must conform to the following criteria:

Where innocent individuals are seized and punished for a violation of the laws of war which has already occurred, no question of hostages is involved. It is nothing more than the infliction of a reprisal. Throughout the evidence in the present case, we find the term hostage applied where a reprisal only was involved. 

2.… The prohibition [of the taking of reprisals] may be waived on condition:

2.The measures [which are designed to repress the breaches of and induce compliance with the Protocol] may be taken only when the following conditions are met:

The Netherlands Government … believes that even if it were to be assumed that the (first) use of nuclear weapons by a State were unlawful per se under present international law – quod non -, this would not necessarily exclude the permissibility of the use of nuclear weapons by way of belligerent reprisal against an unlawful use of (nuclear) weapons, provided of course the retaliating State observed the conditions set by international law for the taking of lawful reprisals, i.e. satisfies, inter alia, the requirement that the retaliation … serves as an ultimum remedium.  [emphasis in original]

Reprisals would be lawful if conducted in accordance with the applicable principles governing belligerent reprisals. Specifically … other means of securing compliance [of the enemy with the law of armed conflict] should be exhausted … As in the case of other requirements of the law of armed conflict, a judgment about compliance of any use of nuclear weapons with these requirements would have to be made on the basis of the actual circumstances in each case, and could not be made in advance or in the abstract. 

It should also be pointed out that at any rate, even when considered lawful, reprisals are restricted by … the principle whereby they must be a last resort in attempts to impose compliance by the adversary with legal standards (which entails, amongst other things, that they may be exercised only after a prior warning has been given which has failed to bring about the discontinuance of the adversary’s crimes). 

The requirement of subsidiarity has generally been taken to mean that recourse to belligerent reprisals is an exceptional measure which must be regarded as an ultimate remedy, after other available means of a less exceptional character have failed. Applying this criterion to inter-State belligerent reprisals (as opposed to State-to-population or quasi-reprisals), it would imply that protests, warnings appeals to third parties and other suitable means must have remained without effect, or so obviously been doomed to failure that there was no need to attempt them first. Nor is this an unreasonable requirement even in time of war: the practice of belligerents shows a frequent recourse to such comparatively innocent means as protests, appeals to international public opinion, complaints lodged with appropriate international bodies, threats to punish individual war criminals, and so on. Indeed, it would seem that in no instance have belligerent reprisals been taken without previous attempts to obtain satisfaction in other ways, or in any event without its having been considered that these would have been possible. However, on theoretical considerations the possibility cannot be excluded of situations where the fruitlessness of any other remedy but reprisals is apparent from the outset. In such exceptional situations, too, recourse to reprisals can be regarded as an ultimate remedy and, hence, as meeting the requirement of subsidiarity. 

While the availability of other sanctions for violations of the law of armed conflict should not be underestimated, it is likely that there will be occasions when the possibility to which Kalshoven refers will be more than theoretical … However, the use of reprisals in an armed conflict is such a serious step and may have such disastrous consequences that the requirement that all reasonable steps be taken to achieve redress by other means before reprisals are ordered is probably one which should be strictly insisted upon, unless delay will endanger the safety of troops or civilians.