Section A. Civilian objects in general
Geneva Convention IV
Article 33, third paragraph, of the 1949 Geneva Convention IV provides: “Reprisals against protected persons and their property are prohibited.”
Additional Protocol I
Article 52(1) of the 1977 Additional Protocol I provides: “Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives.”
Amended Protocol II to the Convention on Certain Conventional Weapons
Article 3(7) of the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons provides: “It is prohibited in all circumstances to direct [mines, booby-traps and other devices], either in offence, defence or by way of reprisals, against … civilian objects”.
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.
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.
UN Secretary-General’s Bulletin
Section 5.6 of the 1999 UN Secretary-General’s Bulletin states: “The United Nations force shall not engage in reprisals against civilians or civilian objects.”
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.”
Argentina
Argentina’s Law of War Manual (1969), in a chapter dealing with the “Protection of civilian persons in times of war”, which contains “provisions common to the territories of the belligerent parties and occupied territories”, states: “Measures of reprisal with respect to protected persons and their property remain equally prohibited.”
Argentina
Argentina’s Regulation for the Treatment of POWs (1985) states: “Reprisals against the property of innocent interned [civilians] are prohibited.”
Argentina
Argentina’s Law of War Manual (1989), in a part dealing with the “Treatment given to protected persons”, which contains “provisions common to the territories of the belligerent parties and occupied territories”, refers,
inter alia, to Article 33 of the 1949 Geneva Convention IV and provides: “Remain absolutely prohibited: … measures of reprisal against protected persons and their objects”.
In a part dealing with “property of a civilian character”, the manual states: “Property of civilian character cannot be made the object of … reprisals.”
Australia
Australia’s Commanders’ Guide (1994), referring,
inter alia, to Articles 51–56 of the 1977 Additional Protocol I, states: “Protected persons, such as … civilians … as well as protected buildings and facilities should not be the subject of reprisals.”
Australia
Australia’s Defence Force Manual (1994) provides: “Reprisals are prohibited against … civilian objects.”
Australia
Australia’s LOAC Manual (2006) states: “Reprisals are prohibited against … civilian objects”.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983), citing several examples of jurisprudence and referring to Articles 4 and 33 of the 1949 Geneva Convention IV, states: “The persons protected by the Geneva Conventions (… civilians) may not be made the object of reprisals. Therefore, [reprisals] may be directed only against combatants, non-protected property and a restricted group of non-protected civilians.”
Belgium
Belgium’s Teaching Manual for Soldiers, in the part containing exercises (questions and answers) for the training of soldiers, gives a negative response to the question as to whether civilian property may be destroyed in reprisal.
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”.
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”.
Cameroon
Cameroon’s Disciplinary Regulations (1975) states: “It is prohibited to soldiers in combat: … to engage in reprisals or collective punishments.”
Cameroon
Cameroon’s Disciplinary Regulations (2007) states: “It is prohibited to soldiers in combat … to take hostages, to engage in reprisals or collective punishments”.
Canada
Canada’s LOAC Manual (1999), in a part dealing with targeting, provides: “Reprisals against civilians and civilian objects are prohibited.” It further provides: “civil defence buildings and
materiel, as well as shelters provided for the civilian population, are considered ‘civilian objects’ and shall not be attacked or subjected to reprisals”.
In a chapter entitled “Treatment of civilians in the hands of a party to the conflict or an occupying power” and, more specifically, in a section containing “provisions common to the territories of the parties to the conflict and to occupied territories”, the manual refers to the 1949 Geneva Convention IV and states: “The following are expressly prohibited: … the taking of reprisals against protected persons and their property”.
In a part dealing with enforcement measures, the manual also states: “Reprisals against the following categories of persons and objects are prohibited: … f. civilian objects”.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting: “Reprisals against civilians and civilian objects are prohibited.”
The manual further states: “Civil defence buildings and
materiel, as well as shelters provided for the civilian population, are considered ‘civilian objects’ and shall not be attacked or subjected to reprisals.”
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Provisions common to the territories of the parties to the conflict and to occupied territories”, the manual states:
[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:
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d. the taking of reprisals against protected persons and their property.
In its chapter entitled “Preventative and enforcement measures and the role of protecting powers”, the manual further states:
4. Reprisals against the following categories of persons and objects are prohibited.
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f. civilian objects;
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5. Reprisals are permitted against combatants and against objects constituting military objectives.
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”.
Chad
Chad’s Instructor’s Manual (2006) states that “reprisals are prohibited against … civilian … property”.
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”.
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.
Croatia
Croatia’s LOAC Compendium (1991) provides for the prohibition of reprisals against “civilian persons and objects”. It further provides for the prohibition of taking reprisals against “specifically protected persons and objects”.
Dominican Republic
The Dominican Republic’s Military Manual (1980), under a provision entitled “No theft or arson against civilian property”, states: “The Geneva Convention prohibits reprisals against civilians for acts of enemy soldiers.”
Ecuador
Ecuador’s Naval Manual (1989) provides: “Reprisals may be taken against enemy armed forces, enemy civilians other than those in occupied territory, and enemy property.” However, it also states: “Reprisals are forbidden to be taken against: … 3. Civilians in occupied territory.”
The manual further provides: “Interned civilians … may not be subjected to collective punishment or acts of reprisal.”
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
France’s LOAC Manual (2001), in the 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.” It further refers,
inter alia, to Articles 20 and 51–56 of the 1977 Additional Protocol I and states: “Reprisals are prohibited against … civilian property”.
Germany
Germany’s Military Manual (1992), in a chapter dealing with reprisals, referring to Article 33 of the 1949 Geneva Convention IV and Articles 51 of the 1977 Additional Protocol I, provides: “It is expressly prohibited by agreement to make reprisals against: … civilians … private property of civilians on occupied territory and of enemy foreigners on friendly territory.”
Referring to Article 33 of the 1949 Geneva Convention IV and Articles 20 and 51 of the 1977 Additional Protocol I, the manual further states: “Reprisals against the civilian population and its property … are prohibited.”
In a chapter entitled “Belligerent occupation”, the manual, referring to Article 33 of the 1949 Geneva Convention IV and Articles 20 and 51 of the 1977 Additional Protocol I, states: “Reprisals against civilians and their property are prohibited.”
Germany
Germany’s IHL Manual (1996) provides: “Reprisals are expressly prohibited against … the private property of civilians in occupied territories”.
Hungary
Hungary’s Military Manual (1992) provides for the prohibition of reprisals against “civilian persons and objects”. It further provides for the prohibition of taking reprisals against “specifically protected persons and objects”.
Indonesia
Indonesia’s Air Force Manual (1990) provides that a “reprisal is absolutely prohibited against protected persons and objects”.
Italy
Italy’s IHL Manual (1991), providing for the prohibition of reprisals against,
inter alia, “protected civilian persons” and “protected persons and property”, 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
Italy’s Combatant’s Manual (1998) instructs: “[D]o not engage in reprisals”.
Kenya
Kenya’s LOAC Manual (1997) states: “It is forbidden: … (e) to carry out reprisals against protected persons or property”.
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 … civilians.”
Madagascar
Madagascar’s Military Manual (1994) instructs soldiers not to take hostages and to refrain from all acts of revenge.
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.”
Netherlands
The Military Manual (1993) of the Netherlands, in the chapter dealing with reprisals and referring to,
inter alia, Article 52 of the 1977 Additional Protocol I, states: “No reprisals may be undertaken against civilian property.”
Netherlands
The Military Manual (2005) of the Netherlands states:
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:
…
- attacks on civilian objects.
In its chapter on behaviour in battle, the manual states: “Civilian objects must not be the subject of reprisals.”
In its chapter on the protection of the civilian population, the manual states that “reprisals against protected persons and their property are prohibited”.
New Zealand
New Zealand’s Military Manual (1992), in the chapter dealing with civilians and referring to Articles 32–34 of the 1949 Geneva Convention IV, states: “The following are … prohibited: … the taking of reprisals against protected persons and their property.”
In a chapter dealing with reprisals and referring to Article 52(1) of the 1977 Additional Protocol I, the manual further states: “Reprisals against the following categories of persons and objects are prohibited … civilian objects”.
Peru
Peru’s IHL Manual (2004) states that reprisals against “civilian objects” are prohibited.
Peru
Peru’s IHL and Human Rights Manual (2010) states that reprisals against “civilian objects” are prohibited.
South Africa
South Africa’s LOAC Manual (1996) states: “Reprisals against the persons and property of … protected civilians are prohibited.”
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Prohibited Acts against Persons not taking an Active Part in Armed Conflicts
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- Specific Rules
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- Reprisals against protected persons and their property are prohibited.
The manual also states:
Reprisals
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- The LOAC [law of armed conflict] prohibits reprisals against the following:
- Civilians, civilian objects and the civilian population[.]
Spain
Spain’s LOAC Manual (1996) lists among the persons against whom the taking of reprisals is prohibited “civilian persons and objects”. It refers, however, to Article 46 of the 1949 Geneva Convention I (relative to the prohibition of reprisals against the wounded, the sick and medical personnel protected under the 1949 Geneva Convention I).
The manual also refers to Article 52 of the 1977 Additional Protocol I with regard to the prohibition of reprisals against cultural objects. In another provision, the manual, also referring to Article 52 of the 1977 Additional Protocol I, states: “Property of a civilian character will not be made the object of attacks nor of reprisals.”
Spain
Spain’s LOAC Manual (2007) lists “civilian property” among the objects against which the taking of reprisals is prohibited.
The manual also states: “Civilian objects must not be targeted in … reprisals.”
The manual further states: “Any area, facility or object that does not fulfil any of the requirements … which would qualify it as a military objective, must be considered a civilian object and, as such, must not be made the object of … reprisals”.
Sweden
Sweden’s IHL Manual (1991), referring to Article 52 of the 1977 Additional Protocol I, states:
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.
While noting that the Swedish IHL Committee strongly discourages even this possibility in view of its manifestly inhuman effect, the manual 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.
Referring to Article 33 of the 1949 Geneva Convention IV, the manual further states:
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.
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”.
Ukraine
Ukraine’s IHL Manual (2004) states: “Reprisals are prohibited against … civilian objects”.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958), in a chapter dealing with the “treatment of enemy alien civilians” and referring to Articles 32–34 of the 1949 Geneva Convention IV, states: “The following are prohibited: … the taking of reprisals against protected persons and their property”.
In a chapter dealing with “the occupation of enemy territory”, the manual, referring to Articles 33 and 34 of the 1949 Geneva Convention IV, states: “[The 1949 Geneva Convention IV] provides … that ‘Reprisals against protected persons and their property are prohibited’.”
In the chapter dealing with the “treatment of enemy property”, the manual further states:
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.
Moreover, the manual, in the part dealing with reprisals, states: “Reprisals against … civilian protected persons and their property in occupied territory and in the belligerent’s own territory, are … prohibited.”
In a footnote relating to this provision, the manual, referring to Articles 4 and 33 of the 1949 Geneva Convention IV, 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 of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981), in a part dealing with the protection of civilians, states: “It is forbidden: … to carry out reprisals against protected persons or property”.
The Pamphlet further states: “The Geneva Conventions and [the 1977 Additional Protocol I] prohibit reprisals against … enemy civilians in territory controlled by a belligerent”.
However, the Pamphlet also states:
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].
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Additional Protocol I extends the categories of persons and objects against whom reprisals are prohibited to: … b. civilian objects”.
The manual also restates the interpretative declaration made by the UK upon ratification of the 1977 Additional Protocol I.

The manual explains:
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.
United States of America
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.”
United States of America
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.
United States of America
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.
United States of America
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.”
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, to include the wounded, sick, or shipwrecked, prisoners of war, detained personnel, civilians [and] their property.
United States of America
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.”
United States of America
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.”
United States of America
The US Naval Handbook (2007) states: “Reprisals may be taken against … enemy property.”
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: … civilian persons and their property.”
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 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.
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.
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’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].
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.”
Spain
Spain’s Penal Code (1995) provides:
[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.
Spain
Spain’s Penal Code (1995), as amended in 2010, states:
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:
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d. … [M]aking … civilian objects of the adverse party the object of reprisals … , causing their destruction, provided that in the circumstances ruling at the time such property does not offer a definite military advantage nor makes an effective contribution to the military action of the adversary;
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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.
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.
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The accused’s position is stated to be that this Court has no jurisdiction to try him.
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… 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.
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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. …
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… 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.
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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.
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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. …
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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
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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.
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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. …
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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].
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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
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.
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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.

[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.
Australia
During the Second Reading Speech of the Geneva Conventions Amendment Bill 1990, the purpose of which was to amend the Geneva Conventions Act 1957 so as to enable Australia to ratify the 1977 Additional Protocol I, Australia’s Attorney-General stated:
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.
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
The Report on the Practice of Australia expressly names open towns, undefended areas, demilitarized zones and humanitarian corridors among the protected objects against which reprisals are prohibited.
Bulgaria
At the CDDH, Bulgaria stated that “his delegation favoured [an] amendment which sought to prohibit reprisals against civilian objects”.
Canada
At the CDDH, the representative of Canada, with respect to paragraph 4 of draft Article 46 (which became Article 51 of the 1977 Additional Protocol I), stated:
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.
Canada
At the CDDH, Canada, reverting to a proposed amendment on the prohibition of reprisals against protected objects (sponsored by Egypt, Democratic Yemen, Iraq, Jordan, Kuwait, Lebanon, Libyan Arab Jamahiriya, Mauritania, Morocco, Qatar, Syrian Arab Republic, United Arab Emirates and Yemen),

stated:
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.
Canada
In 1986, in a memorandum on Canada’s attitude to possible reservations with regard to the 1977 Additional Protocol I, the Canadian Ministry of Foreign Affairs noted:
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.
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”.
Egypt
In its written statement submitted to the ICJ in the
Nuclear Weapons case in 1995, Egypt stated: “Reprisals are prohibited against … civilians … 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
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
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.
Finland
At the CDDH, Finland stated:
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.
Finland
At the CDDH, Finland, with regard to amendments made by other States concerning the prohibition of reprisals, stated that it “accepted [those amendments] which would prohibit reprisals against civilian objects”.
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.”
German Democratic Republic
At the CDDH, during discussions on amendments made by other States concerning the prohibition of reprisals against civilian objects, the German Democratic Republic stated that it “supported … the amendments concerning reprisals”.
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
Upon ratification of the 1977 Additional Protocol I, Germany stated:
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.
Iraq
On the basis of a reply by Iraq’s Ministry of Defence to a questionnaire, the Report on the Practice of Iraq states that reprisals “must not be directed, in any way, against … civilian objects, but [have] to be confined to purely military targets”.
Islamic Republic of Iran
According to the Report on the Practice of the Islamic Republic of Iran, during the Iran–Iraq War, Iranian authorities, including the Ministry of Foreign Affairs and the Parliament, condemned Iraqi attacks on civilian objects, which the Islamic Republic of Iran always regarded as war crimes. The report points out that the Islamic Republic of Iran always insisted that war must be limited to battlefronts and that it had no intention of attacking civilian objects. When Iraq accused the Islamic Republic of Iran of bombarding civilian targets, Iranian military communiqués denied these allegations and claimed that Iranian attacks were limited to military or economic facilities.
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.
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 and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violation.
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.”
Netherlands
At the CDDH, the Netherlands introduced an amendment to draft Additional Protocol I which read “attacks against civilian objects by way of reprisals are prohibited” on behalf of its sponsors (Austria, Egypt, Mexico, Netherlands, Norway, Philippines, USSR).
The Netherlands stated:
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.
Netherlands
At the CDDH, the Netherlands, during discussions on the protection of civilian objects, stated that “reprisals on civilian populations were prohibited by international law”.
Philippines
The Report on the Practice of the Philippines states: “Reprisals are generally prohibited.”
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
At the CDDH, Poland, referring to an amendment on the prohibition of attacks against civilian objects by way of reprisals sponsored by other States, stated that it supported the amendment and pointed out that “it was impossible to carry out reprisals against civilian objects without injuring civilians”.
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 … 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.
South Africa
South Africa’s Prohibition or Restriction of Certain Conventional Weapons Act (2008) states:
Mines, booby-traps or other devices
6. (1) No person may use or direct any mine, booby-trap or other device –
…
(d) either in offence, defence or by way of reprisals, against the civilian population or against individual civilians or civilian objects.
Sweden
At the CDDH, Sweden, with respect to amendments made by other States concerning the prohibition of attacks against civilian objects by way of reprisals, stated that it was “in favour of such a ban”.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Means and methods of warfare
Even in war not everything is allowed. Various means and methods are prohibited, including …
Reprisals against the civilian population or against non-military objectives[.]
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom, with respect to an amendment concerning the protection of civilian objects, stated:
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.
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 … 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.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom stated:
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.
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 of America
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.
United States of America
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.
United States of America
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.
Yugoslavia, Socialist Federal Republic of
At the CDDH, the Socialist Federal Republic of Yugoslavia stated: “Reprisals against civilian objects … should be prohibited.”
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 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 52(1) of the 1977 Additional Protocol I, stated: “Reprisals against the following categories of persons and objects are specifically prohibited: … (f) Civilian objects.”
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.
No data.
Conference of High Contracting Parties to the Fourth Geneva Convention
The Conference of High Contracting Parties to the Fourth Geneva Convention in 2001 adopted a declaration calling upon “the Occupying Power [in the conflict between Israel and Palestinians] to refrain from perpetrating any other violation of [the 1949 Geneva Convention IV], in particular reprisals against protected persons and their property”.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the
Kupreškić case in 2000, the ICTY Trial Chamber stated: “Reprisals against civilian objects are outlawed by Article 52(1) of [the 1977 Additional Protocol I].”
No data.
No data.