Practice Relating to Rule 148. Reprisals in Non-International Armed Conflicts

In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property. 

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]. 

The words ‘are, and shall remain prohibited at any time and at any place whatsoever’ which already appeared in Article 3 common to the four Geneva Conventions of 1949 … should serve as a rule of conduct and an absolute prohibition of recourse to reprisals in the Articles of Part II. 

voted for this provision in the belief that a blanket prohibition of reprisals would not be feasible. No State could reasonably be asked to stand by and allow grave and repeated breaches of the Conventions or the Protocols by its adversary. The prohibition of reprisals should … be limited to certain well-defined cases, restrictively enumerated. 

If a Party to the conflict persistently violates the provisions of the Protocol and refuses to comply with those provisions after being called upon to do so, then, except concerning the persons protected by articles … [footnote: these would be the articles that concern, in particular, the protection of persons within the power of one of the Parties to the conflict], the adverse Party may nevertheless resort to measures which are in breach of the Protocol, provided it had warned the offending party that such action will be resorted to if the offensive acts are not terminated within a specific time [footnote: As is clear from the language of the proposal, this is intended to be of general application affecting the entire Protocol]. 

As his delegation regarded the concept of reprisals as appertaining to international law, it considered that there was no place for that concept in Protocol II. There was a risk that the introduction of such a concept in Protocol II might increase the danger of reprisals followed by counter-reprisals and result in an escalation of hostilities. Its conclusion might also inhibit some States from becoming Parties to the Protocol. 

It should be noted that the … limitations on the use of reprisals apply only in the event of an international armed conflict. Common Article 3 of the [1949] Geneva Conventions, which is the only treaty law concerning internal armed conflict other than [the 1977 Additional Protocol II], does not make any explicit reference to reprisals …

[The 1977 Additional Protocol II], concerned with internal armed conflicts, does not contain the word “reprisal” or any similar expression. 

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. 

[A] reference to measures of reprisals should be included in [the 1977 Additional Protocol II], so that civilian populations would have at least minimum guarantees against inhumane treatment by the parties to non-international armed conflicts … The amendment by the Finnish delegation was aimed at adding a new subparagraph [in the draft provision of the 1977 Additional Protocol II dealing with fundamental guarantees] in order to place a general prohibition on reprisals, as had been done in Article 33 of [the 1949 Geneva Convention IV]. 

Contrary to what was often stated, reprisals were not limited to times of war or other types of armed conflict, but were also exercised in times of peace. Reprisals should never in any circumstances be used against the civilian populations. They could possibly be employed between States or Parties to a conflict. For example, they could be regarded as legitimate in the event of destruction of public property or a violation of international law by one or other Party to a conflict. But there was universal agreement that reprisals of an inhumane nature were inadmissible. That was why innocent civilians should be protected against such acts in times both of war and peace. 

With regard to the word “reprisals”, he still considered that there was no reason why it should not be used also in connexion with non-international armed conflicts; but his delegation would be willing to accept another word, provided that the content [i.e. of the proposal prohibiting reprisals] was not changed. 

As the article was put to the vote … the Finnish delegation had to cast a favourable vote in view of its consistent support throughout the Conference for the prohibition of reprisals or measures in kind in armed conflicts, whether international or non-international. 

Was it advisable to use the word “reprisal” in draft Protocol II? Perhaps it would be possible to find another term where non-international armed conflicts were concerned. There were no objections from the legal point of view to the use of the word “reprisal”, but from the political point of view it could be inferred that its use gave the Parties to a conflict a status under international law which they had no right to claim. He suggested that another formulation, for example “measures of retaliation comparable to reprisals”, might not meet with the same objections. 

The Italian delegation abstained in the vote leading to the deletion of Article 10 bis, which provided that certain articles of Protocol II “shall not, in any circumstances or for any reason whatsoever, be violated, even in response to a violation of the provisions of the Protocol”.

A majority of delegations decided to delete Article 10 bis because of the widely felt need to simplify Protocol II as far as possible, in order to render it clear, to the point, well balanced and thus acceptable to a large number of countries …

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… Protocol II contains many provisions mentioning obligations which must be respected “in all circumstances”, or rules which must be followed “as a minimum”. The language is very clear, highlighting the need for unconditional respect for those obligations and rules, even if the other Party to the conflict does not respect them. This is to be expected, since what is involved are elementary human rights, to which a basic morality (much older than the legal rule) ascribes absolute value …

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Moreover, everything in Protocol II which represents a development of the common Article 3 of the 1949 Geneva Conventions, is subject to the conditions and rules set out in that article. And that article specifically mentions rules which must be applied “as a minimum” or “at any time and in any place whatsoever”; this clearly shows that these rules (and thence the rules derived from them in the present Protocol) must be understood as requiring unconditional respect. 

This article is no less and no more than a disguised article on reprisals. Right from the beginning … the Nigerian delegation had repeatedly opposed the inclusion of an article on reprisals in this additional Protocol II. We are of the firm conviction that reprisals as a legal notion properly belongs to international legal relations as between sovereign States and should have no place in a Protocol dealing with internal armed conflicts. Also, the inclusion of an article on reprisals in this Protocol could lead Governments and States into embarrassing situations. This is because it is not inconceivable that in the course of an internal conflict, rebels may deliberately commit acts to which the normal reaction would be in the nature of reprisals but because of a prohibitory article such as this, Governments would feel bound to fold their arms while dissident groups go on a rampage killing and maiming innocent civilians and burning dwellings and food crops. No responsible Government can allow such a situation to develop, but if this article had been adopted this is the kind of scenario that would repeat itself time and again. 

Isolated cases of disrespect of the provisions of the present Protocol by one party shall not in any circumstances authorize the non-compliance by the other party with the provisions of [the relevant Part], even for the purpose of inducing the adverse party to comply with its obligations. 

The basic core of Protocol II is, of course, reflected in common article 3 of the 1949 [Geneva] Conventions and therefore is, and should be, a part of generally accepted customary law. This specifically includes its prohibitions on violence toward persons taking no active part in hostilities, hostagetaking, degrading treatment, and punishment without due process. 

1. For every attacked and seized object of the [YPA] – an object of vital importance for the Republic of Croatia will be destroyed immediately.

2. For every attacked and occupied garrison – an object of vital importance to the town in which the garrison is located will be destroyed. This is, at the same time, a warning to civilian persons to abandon such settlement in time. 

This warning calls for detailed analysis, but arguably it can be classified as a threat of the use of belligerent reprisals. In any event, a question may be raised whether the approach of the YPA Supreme Command reflected the position that belligerent reprisals may be freely carried out in internal conflicts as well, without the IHL restrictions that apply to international conflicts. The text of the Supreme Command warning leads to this conclusion. 

Recalls, in accordance with international humanitarian law, that indiscriminate attacks against civilians, including children, are prohibited and that they shall not be the object of attack, including by way of reprisal or excessive use of force, condemns these practices, and demands that all parties immediately put an end to them. 

Deploring continued attacks, acts of reprisal, abductions and other acts of violence committed against United Nations personnel, personnel of other humanitarian organizations and non-governmental organizations and representatives of the international media in Somalia, sometimes resulting in serious injury or death. 

Noting that the Democratic Republic of the Congo is a party to several international and regional human rights instruments and to several instruments pertaining to international humanitarian law,

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3. Condemns:

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(c) The reprisals against the civilian population in the territories controlled by RCD-Goma and MLC, especially the operation “Effacer le tableau” (“Clean the blackboard”) at the end of 2002, in addition to the exactions committed by the Union of Congolese Patriots (UPC), and stresses that the foreign forces which support RCD-Goma, MLC and UPC should also be held responsible for the massacres and atrocities that have occurred. 

The persistent violations of human rights and international humanitarian law in the Democratic Republic of the Congo, particularly the armed violence and reprisals against the civilian population in Ituri, North Kivu and South Kivu, northern Katanga and other areas in the eastern part of the country. 

The violations of human rights and international humanitarian law, particularly in Ituri, North Kivu and South Kivu, northern Katanga and other areas in the eastern part of the Democratic Republic of the Congo, including armed violence and reprisals against the civilian population …  

190. … Numerous killings were said to have taken place during counter-insurgency operations and reprisal attacks against persons perceived by government security forces as members or supporters of rebel groups because of their ethnic origin or place of residence.

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193. The Special Rapporteur received alarming reports about massive killings of civilians by security forces in the regions of Moyen-Chari and Logone Oriental during the first half of 1993. A number of these killings were said to have been committed in retaliation for earlier attacks on security forces by armed opposition groups. 

The Special Rapporteur continued to receive alarming reports of extrajudicial, summary or arbitrary executions of civilians by members of the Chadian army. According to the information received, the authorities did not take any steps to prevent such acts. On 26 August 1994, the Special Rapporteur sent an urgent appeal to the Government after receiving reports of the extrajudicial execution of more than 25 villagers in the Kaga district between 12 and 14 August 1994. The victims were said to have included at least two minors, Justin Helkom (15) and Raymond Ekoudjewa (16). According to the reports received, the killings were reprisal actions by the army after the death of five soldiers during armed confrontations between the security forces and the rebel Forces Armées pour la République Fédérale (Armed Forces for the Federal Republic, FARF). 

The reports and allegations received by the Special Rapporteur indicate that violations of the right to life continued to occur during 1994 in the context of the armed conflict between government security forces and guerrillas of the Partiya Karkeren Kurdistan (Kurdish Workers’ Party, PKK) in the south-eastern parts of Turkey …

The Special Rapporteur sent four urgent appeals to the Government. Fears had been expressed for the lives of [individuals], who were said to have been detained during a raid by the security forces at their village, allegedly in reprisal for the refusal of the villagers to participate in the village guard system for fear of reprisal attacks from the PKK. 

The Special Rapporteur transmitted to the Government allegations he had received according to which … civilians and members of the Tuareg ethnic group … were killed in April 1994 by members of the Malian armed forces, reportedly in reprisal for the killing on the previous day of two soldiers by former Tuareg fighters who had joined the army …

On 4 August 1994, the Government informed the Special Rapporteur that [s]ome of the former MFUA combatants, who had been integrated into the army in 1991, reportedly deserted and committed acts of violence against their former colleagues and civilians. 

in Rwanda, genocide and reprisals are dialectically linked: genocide seems inevitably to lead to reprisals … All the acts committed [violations of property rights, of the right to personal safety and of the right to life] taken together would appear to constitute reprisals by the victims of genocide. 

One of the most salient recent cases of human rights violations by members of the security forces was the killing of 10 civilians, mostly fishermen, from the village of Puerto Lleras by soldiers from the Artillery Group No. 19 Revéiz Pizarro of the Colombian Army on 3 January 1994. The massacre was said to have been carried out in reprisal for a guerrilla attack against a military base earlier on the same day, in which three soldiers had died. 

Failure by a Party to the conflict to observe the provisions of this Protocol shall not entitle the adverse Party to take countermeasures infringing the provisions of this Protocol against persons who do not take a direct part or who have ceased to take a part in hostilities, whether or not their liberty has been restricted, and against medical units and transports, even if the aim of such countermeasures is to make the adverse Party respect his own obligations. 

The emergence of international rules governing internal strife has occurred at two different levels: at the level of customary law and at that of treaty law. Two bodies of rules have thus crystallised, which are by no means conflicting or inconsistent, but instead mutually support and supplement each other. Indeed, the interplay between these two sets of rules is such that some treaty rules have gradually become part of customary law. This holds true for common Article 3 of the 1949 Geneva Conventions … but also applies to Article 19 of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and … to the core of Additional Protocol II of 1977. 

Many provisions of this Protocol can now be regarded as declaratory of existing rules or as having crystallised emerging rules of customary law or else as having been strongly instrumental in their evolution as general principles. 

16. … Although [the 1977 Additional Protocol II] does not specifically refer to reprisals against civilians, a prohibition against such reprisals must be inferred from its Article 4. Reprisals against civilians are contrary to the absolute and non-derogable prohibitions enumerated in this provision. Prohibited behaviour must remain so “at any time and in any place whatsoever”. The prohibition of reprisals against civilians in non-international armed conflicts is strengthened by the inclusion of the prohibition of “collective punishments” in [Article 4(2)(b) of the 1977 Additional Protocol II].

17. Therefore, the rule which states that reprisals against the civilian population as such, or individual civilians, are prohibited in all circumstances, even when confronted by wrongful behaviour of the other party, is an integral part of customary international law and must be respected in all armed conflicts. 

The question of whether retaliatory actions in the context of armed conflict constitute belligerent reprisals will … depend on the status of the parties to such actions, that is on whether these can be regarded as a State or similar autonomous entity. This is already apparent in the event of civil war, where the concept of belligerent reprisals can only find application to the extent that the insurgents have succeeded in establishing themselves as an essentially autonomous party, for instance by bringing part of the territory under their effective control. 

[The] episode involving measures on the part of a belligerent … could at first sight be taken for belligerent reprisals … The scope of the rebellion and the nature of the actions on both sides were such that the situation could without any doubt be classified as an internal armed conflict … [The central Government] resorted to the employment of white mercenaries and of bombing aircraft manned by foreign pilots … On the other hand, the insurgents (who likewise received outside support) took to holding as hostages the white residents whom they found in the areas under their control … The rebels announced that they would hold all the whites as hostages so long as [the adversary] would not desist from the use of mercenaries. 

The taking of hostages, far from serving to enforce the law of war, in reality was designed to exert influence on the progress of the military operations … Thus, the policy of keeping hostages as applied by the insurgents in Stanleyville lacked the characteristic feature of a belligerent reprisal: it was not so much a means to enforce the law of war as to guarantee the insurgents a degree of safety and to further their policy objectives.