Practice Relating to Rule 145. Reprisals
In the Bruns case
before the Norwegian Eidsivating Court of Appeal (sitting as the Tribunal of first instance) in 1946, the Counsel for Defence claimed that the Norwegian military organization and its activities were at variance with international law and that the Germans in fighting the organization were, therefore, justified in using methods contrary to international law. The German methods of carrying out interrogations had to be regarded as constituting reprisals. However, the Court held that the Norwegian underground military movement did not constitute a breach of international law and therefore the Germans were not justified in using torture against its members as a means of reprisal.
In the same case, the Norwegian Supreme Court stated that it could not be established that the acts of torture had been carried out as reprisals. Reprisals were generally understood to aim at changing the adversary’s conduct and forcing him to keep to the generally accepted rules of lawful warfare. If this aim were to be achieved, the reprisals must be made public and announced as such. During the whole of the occupation there was no indication from the German side to the effect that their acts of torture were to be regarded as reprisals against the Norwegian military organization. They appeared to be German police measures designed to extort during interrogations information which could be used to punish people or could eventually have led to real reprisals to stop activities about which information was gained. The method applied to the interrogatories (“verschärfte Vernehmung
”) was nothing but a German routine police method and could, therefore, not be regarded as a reprisal.
In the Flesch case
in 1946 in which a German national was charged with having ordered the killing of Norwegian citizens who had allegedly been members of the Norwegian underground movement, the Frostating Court of Appeal stated that whatever the legal position, an act of reprisal can in no circumstances be pleaded in exculpation unless it was, at the time, announced publicly as such, or it appeared from the act itself that it was intended as a reprisal and showed clearly against what unlawful acts it was directed. None of the incidents in question fulfilled any of these minimum demands. As the defendant maintained that the acts were acts of reprisal directed against a number of subversive acts, the Frostating Court of Appeal did not regard the alleged acts of sabotage carried out by soldiers in uniform as constituting a breach of international law and therefore concluded that the acts committed by the accused could not be regarded as reprisals but must be considered as acts solely intended to terrorize the population in order to stem the underground movement.
In the same case, the Norwegian Supreme Court agreed with the view held by the Frostating Court of Appeal to the effect that the execution of the Norwegian citizens without previous trial could not be regarded as constituting justifiable reprisals and made reference to what had been held by the Supreme Court in the Bruns case
During discussions on reprisals in Committee I of the CDDH, Norway stated that “it was doubtful whether a victim State or party would be helped by resorting to actions directed against the innocent, even if it had done so in the past. Reprisals might well have the opposite effect, and lead to counter-reprisals.”