United States of America
Practice Relating to Rule 146. Reprisals against Protected Persons
Section A. Captured combatants and prisoners of war
The US Field Manual (1956), referring to Article 13 of the 1949 Geneva Convention III, states:
Reprisals against the persons or property of prisoners of war, including the wounded and sick, … are forbidden … However, reprisals may still be visited on enemy troops who have not yet fallen into the hands of the forces making the reprisals.
The US Air Force Pamphlet (1976), referring to Article 13 of the 1949 Geneva Convention III, provides:
Reprisals against prisoners of war are prohibited … 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.
The Pamphlet further states:
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.
In the chapter dealing with the 1949 Geneva Convention III, the Pamphlet reiterates: “Measures of reprisal against prisoners of war are prohibited.”
The US Air Force Commander’s Handbook (1980), under the heading “Persons and Things Not Subject to Reprisals”, states:
Under the 1949 Geneva Conventions, reprisals may not be directed against … prisoners of war. (The reprisals against British prisoners of war that the United States threatened during the Revolution would thus be illegal today, though at the time, reprisals against PWs [prisoners of war] were lawful.)
The US Soldier’s Manual (1984), under the heading “Treat all captives and detainees humanely”, tells soldiers: “You must never engage in reprisals or acts of revenge against any persons, enemy or civilian, whom you capture or detain in combat.”
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 … prisoners of war, detained personnel …
The US Naval Handbook (1995) states: “Reprisals are forbidden to be taken against: 1. Prisoners of war”. It also provides: “Prisoners of war may not be subjected to collective punishment nor may reprisal action be taken against them.”
The Annotated Supplement to the US Naval Handbook (1997), with regard to the prohibition of taking reprisals against prisoners of war, states:
In light of the wide acceptance of the 1949 Geneva Conventions by the nations of the world today, this prohibition is part of customary law … The taking of prisoners by way of reprisal for acts previously committed (so-called “reprisal prisoners”) is likewise forbidden.
The US Naval Handbook (2007) states: “Reprisals are forbidden to be taken against: 1. Prisoners of war”.
In its judgment in the Dostler case
in 1945, in which a German commander had been accused of having ordered, in March 1944, the shooting of 15 American prisoners of war in violation of the 1907 Hague Regulations, the US Military Commission at Rome referred to Article 2, third paragraph, of the 1929 Geneva POW Convention and held that from this provision followed that under the law as codified by this Convention there can be no legitimate reprisals against prisoners of war. No soldier, and still less a Commanding General, could be heard to say that he considered the summary shooting of prisoners of war legitimate even as a reprisal. Referring to the decision of the German Reichsgericht in the Dover Castle case
, the US Military Commission of Rome stated that through the express provision of Article 2, third paragraph, of the 1929 Geneva POW Convention the decision of the German Reichsgericht in the said case had lost even such little persuasive authority as it may have had at the time it was rendered.
In April 1965, when a North Vietnamese prisoner was sentenced to death by a South Vietnamese court, the communist rebel group announced that if the sentence was carried out, it would kill an American aid officer in their hands. Neither of the executions was carried out. Three months later, a North Vietnamese prisoner was executed apparently after having been tried, convicted and sentenced by a South Vietnamese special military tribunal. A few days later, it was announced that an American sergeant held as a prisoner of war had been executed in reprisal. In September 1965, three North Vietnamese prisoners were executed, again apparently after having been tried, convicted and sentenced. The execution of two American prisoners of war in reprisal was announced a few days later.
The United States refused to accept that the executions were justified as reprisals and the acts were denounced as “two more acts of brutal murder.” The ICRC was asked to take all possible action with respect to these violations.
North Vietnam also threatened to treat captured US pilots as war criminals subject to trial. The United States charged that the threat was to justify reprisals for executions by the South Vietnamese of North Vietnamese prisoners as terrorists.
An instruction card issued to all US troops engaged in Viet Nam directed soldiers always to treat prisoners humanely, adding: “All persons in your hands, whether suspects, … or combat captives, must be protected against violence, insults, curiosity, and reprisals of any kind.”
At the 20th International Conference of the Red Cross in 1965, the US delegate declared that his government had been “shocked and deeply saddened by the brutal murder of prisoners of war as acts of reprisals” in the Vietnam War and that it was “profoundly concerned that other prisoners may be executed in violation of international law”.
According the Report on US Practice: “The United States does not regard the summary execution of persons in custody as a lawful means of reprisals.”