Practice Relating to Rule 147. Reprisals against Protected Objects

[The 1949 Geneva Convention IV] prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination. This prohibition applies not only to murder, torture, corporal punishment, mutilation or medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other form of brutality, whether applied by civilians or by military personnel. The following are expressly prohibited:

4. Reprisals against the following categories of persons and objects are prohibited.

5. Reprisals are permitted against combatants and against objects constituting military objectives. 

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. 

In the history of warfare, reprisals carried out have often exceeded the set limits. This has led to the current prohibition, in the humanitarian law of war and specifically in AP I [1977 Additional Protocol I], of reprisals against several groups of people and objects.

The following are now forbidden as reprisals:

The basic rule in Article 52 is that civilian objects and civilian property may not constitute objectives for attack or be subjected to reprisals. The article does not represent any new thinking: but is, rather, a clarification of humanitarian principles established in older conventions. 

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. 

Protected persons may not be punished for actions they have not themselves performed. Collective punishment of a whole group is also prohibited. Also, the occupying power may not … destroy civilian property in reprisal for some action directed against the occupying power. 

The custom of war formerly permitted as an act of reprisal the destruction, by burning or otherwise, of a house whose inmates, though not possessing the rights of combatants, have fired on enemy troops. However, this practice is no longer lawful. [Article 33 of the 1949 Geneva Convention IV] prohibits reprisals against protected persons and their property. 

The United Kingdom reserves the right to take proportionate reprisals against an enemy’s civilian population or civilian objects where the enemy has attacked our own civilians or civilian objects in violation of [the 1977 Additional Protocol I]. 

This means that reprisals taken in accordance with the statement are permissible by and against the United Kingdom. However, commanders and commanders-in-chief are not to take reprisal action on their own initiative. Requests for authority to take reprisal action must be submitted to the Ministry of Defence and require clearance at Cabinet level. 

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. 

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. 

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 following measures are expressly prohibited by the law of war and are not excusable on the basis of military necessity:

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 civilian persons, medical organizations and their personnel, civilian objectives, civilian property … 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. 

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]. 

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]. 

[Shall be punished] whoever, in the event of an armed conflict: … attacks or makes the object of reprisals or the object of hostilities civilian objects of the adverse party, causing extensive destruction, provided that the said acts do not offer a definite military advantage in the circumstances of the case or that the said objects do not make an effective contribution to the adverse party’s military effort. 

1. Anyone who in the event of an armed conflict commits or orders to be committed any of the following acts shall be punished with four to six years’ imprisonment:

2. … In all other cases mentioned in the above article, the higher sentence can be imposed when extensive and important destructions are caused to the property, objects or installations or [the acts] are of extreme gravity. 

He [the shadow Attorney-General] called in particular for a reservation on the prohibition on reprisals contained in the protocol. A reservation on reprisals would not be accepted by some countries. A reservation would operate reciprocally between Australia and a future enemy also party to the protocol. If we did that, it would reduce the level of protection afforded by the protocol to Australian civilians and civilian objects.

None of the 99 countries which have become party to the protocol have seen the need to make such a reservation – not one of them. The prohibition on reprisals in the protocol is not a total prohibition. Reprisals are prohibited against civilians, cultural objects and places of worship, objects indispensable to the survival of the civilian population, the environment, dams, dykes and nuclear electrical generating stations containing dangerous forces. The prohibition on reprisals represents an important development in protection of civilians against the horrors of modern warfare. 

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. 

His delegation did not wish an unenforceable provision to be adopted, disrespect for which would lead to disrespect for the whole Protocol. His delegation could accept a prohibition on reprisals against civilians or the civilian population, but not on reprisals against civilian objects. 

If it attempted to provide for a total prohibition of reprisals, the Committee would be drawing up a theoretically ideal document at the humanitarian level, but that such a prohibition would be based on the assumption that the Party or State in question would not retaliate, and it was doubtful whether such would be the case; there had been in fact abuses, not only on the pretext of reprisals, but also on the pretext of the law of war. The question was whether an attempt should be made to curb the victim’s desire for vengeance by formulating a rule, or whether that aspect could be left undecided. He thought it was better to lay down a rule. 

Under [the 1949 Geneva Conventions] … reprisals directed against the enemy civilian population or property in enemy controlled areas are permissible. [The 1977 Additional Protocol I] goes beyond the Geneva Conventions and prohibits reprisals directed against … civilian property under all circumstances. 

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. 

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. 

The main intention of paragraph 4 [of draft Article 46 which became Article 51 of the 1977 Additional Protocol I] was to extend the protection to the civilian population as a whole. That was desirable, but it was not sufficient. Civilian objects should also be protected from reprisals everywhere, even in the field of hostilities. 

Te Federal Republic of Germany will react against serious and systematic violations of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violation. 

Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violation. 

In fact, reprisals could rarely be confined to civilian objects alone and the infliction of suffering on the civilian population would be virtually inevitable … The sponsors of the amendment were in favour of extending [the prohibition of reprisals against civilians] to a complete ban on all reprisals against the civilian population and civilian objects alike. 

During hostilities, it is forbidden to resort to reprisals against … civilian populations, property and various categories of civilian property which are subject to special protection … 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. 

Even in war not everything is allowed. Various means and methods are prohibited, including … Reprisals against the civilian population or against non-military objectives[.] 

The amendment proposed no ban on reprisals, the intention being to leave intact the existing ban on reprisals against civilian objects in occupied territory which were contained in the [1907 Hague Regulations] and [the 1949 Geneva Convention IV], and to retain the right of reprisal against such objects in enemy territory subject to the existing restraints in customary law, which were considerable. His delegation shared the misgivings expressed by the representative of Canada concerning the proposed ban on reprisals and agreed that such bans would have to be conditional on the improvement of the means of enforcement and supervision of the provisions on protection of the civilian population … If a ban was introduced, it should not, in his view, be absolute but qualified, so that the right should be retained, subject to strict legal restraint on its exercise, in the circumstances where a Party to the conflict was subjected to persistent attacks on its own civilians and civilian objects which did not cease despite repeated protests. In such circumstances a Party to the conflict would undoubtedly take reprisal measures. 

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 … The Conventions do not preclude the taking of reprisals against … civilian objects in enemy territory. Additional Protocol I prohibits the taking of reprisals against … civilian objects (Article 52(1)) … The application of these provisions would have a greater effect on the retaliatory use of nuclear weapons. Again, however, these provisions are correctly regarded as innovative and thus as inapplicable to the use of nuclear weapons. 

The obligations of Articles 51 and 55 are accepted on the basis that any adverse party against which the United Kingdom might be engaged will itself scrupulously observe those obligations. If an adverse party makes serious and deliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those Articles, the United Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations under those Articles, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government. Any measures thus taken by the United Kingdom will not be disproportionate to the violations giving rise thereto and will not involve any action prohibited by the Geneva Conventions of 1949 nor will such measures be continued after the violations have ceased. The United Kingdom will notify the Protecting Powers of any such formal warning given to an adverse party, and if that warning has been disregarded, of any measures taken as a result. 

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. 

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. 

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.