Practice Relating to Rule 145. Reprisals
Section D. Order at the highest authority of government
No data.
Oxford Manual
Article 86 of the 1880 Oxford Manual states that reprisals “can only be resorted to with the authorization of the commander in chief”.
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 86.
Australia
Australia’s Commanders’ Guide (1994) states: “Reprisal action by ADF [Australian Defence Force] members requires prior approval at the highest level.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1211.
Australia
Australia’s Defence Force Manual (1994) provides: “Reprisal action by the ADF [Australian Defence Force] members requires prior approval at government level.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1310.
Australia
Australia’s LOAC Manual (2006) states: “In order to qualify as a legitimate reprisal, an act must comply with the following conditions when employed … [including] … As reprisals entail state responsibility, they must be authorised at the highest level of government.”
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.18.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states: “Although no precise rules exist on the subject, reprisals may only be ordered by the government or commanders-in-chief, because of the importance of the political and/or military consequences they may entail.”
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 35.
Benin
Benin’s Military Manual (1995) states that reprisals “may only be used if: … they are ordered at a high level”.
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 13.
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”.
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(2).
Cameroon
Cameroon’s Disciplinary Regulations (1975) states: “It is prohibited to soldiers in combat: … to engage in reprisals or collective punishments”.
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 32.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states: “It is prohibited to soldiers in combat … to take hostages, to engage in reprisals or collective punishments”.
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 32.
Canada
Canada’s LOAC Manual (1999) provides: “The use of reprisals has great political and strategic implications. The decision to take reprisal action must therefore be authorized at the highest political level. Operational commanders on their own initiative are not authorized to carry out reprisals.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-2, § 13.
The manual further states:
To qualify as a reprisal, an act must satisfy the following conditions:
…
h. It must be authorized by national authorities at the highest political level as it entails full state responsibility. Therefore, military commanders are not on their own authorized to carry out reprisals.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-3, § 17.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Preventative and enforcement measures and the role of protecting powers”:
2. The use of reprisals has great political and strategic implications. The decision to take reprisal action must therefore be authorized at the highest political level. Operational commanders on their own initiative are not authorized to carry out reprisals.
…
6. To qualify as a reprisal, an act must satisfy the following conditions:
…
h. It must be authorized by national authorities at the highest political level as it entails full state responsibility. Therefore military commanders are not on their own authorized to carry out reprisals.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1507.2 and 6.h.
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): “Reprisals are permitted under customary law if they are made in response to an unlawful act of war. Reprisals may be made only if: … they are ordered at a high level”.
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Section I.
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”.
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32(2).
Croatia
Croatia’s LOAC Compendium (1991) states that a condition for reprisals is that the “decision [is] taken at [the] highest governmental level”.
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 19.
Ecuador
Ecuador’s Naval Manual (1989) provides: “To be valid, a reprisal action must conform to the following criteria: … 1. Reprisal must be ordered by the highest authority of the belligerent government.”
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.3.1.
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, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi, Article 10 bis (2).
Germany
Germany’s Soldiers’ Manual (1991) states: “Because of their political and military consequences reprisals on the part of the German Military Forces may only be ordered by the Federal Government.”
Germany, Taschenkarte, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Bearbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, Zentrum Innere Führung, June 1991, p. 2; see also ZDv 15/1, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, DSK VV230120023, Bundesministerium der Verteidigung, June 1996, § 319.
Germany
Germany’s Military Manual (1992) provides that “because of their political and military significance, reprisals shall be ordered by the supreme political level, which would be in the Federal Republic of Germany the Federal Government. No soldier is entitled to order reprisals on his own accord.”
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 477.
The manual further states that reprisals “require a decision to be taken by the supreme political level”.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1206.
Germany
Germany’s Soldiers’ Manual (2006) states: “Because of their political and military consequences reprisals on the part of the German armed forces may only be ordered by the Federal Government.”
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 2.
Hungary
Hungary’s Military Manual (1992) states that a condition for reprisals is that the “decision [is] taken at [the] highest governmental level”.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 35.
Italy
Italy’s IHL Manual (1991) provides: “A reprisal is ordered by the Head of Government or by the authorities to which the power to order them has been lawfully delegated.”
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 27.
Kenya
Kenya’s LOAC Manual (1997) states: “Under customary law, reprisals are permitted to counter unlawful acts of warfare. They can only be taken if: … they are ordered at a high level.”
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 4.
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”.
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25(2).
Netherlands
The Military Manual (1993) of the Netherlands, referring to customary law, states that reprisals are in principle allowed, provided that a number of conditions are fulfilled, including: “Because of its important political and military consequences, the power to decide on a reprisal belongs to the government.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-5.
Netherlands
The Military Manual (2005) of the Netherlands states:
On the basis of customary law, it used to be assumed that reprisals were allowed in principle by the law of war, provided that a number of conditions were met:
…
- the authority to decide on reprisals is reserved to government, because of the serious political and military consequences.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0423.
In its chapter on non-international armed conflict, the manual states:
Any belligerent reprisal actions may be taken only after the political and military leadership have given permission for them, and the competent authorities have given the necessary instructions for their execution.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1048.
New Zealand
New Zealand’s Military Manual (1992) states: “In order to be considered a reprisal, an act must have certain characteristics: … It must be authorized by national authorities at the highest political level and involve full State responsibility.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1606(4)(h).
South Africa
South Africa’s LOAC Manual (1996) states: “Reprisals are only permitted according to strict criteria. Decisions must be made at the highest level. Soldiers cannot take reprisals at their own initiative.”
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 34(e).
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “Decisions [of resorting to reprisals] must be made at the highest level. Soldiers cannot take reprisals at their own initiative.”
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(e).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Reprisals
…
- Under customary international law, reprisals against persons and objects not protected against reprisals can be justified if the reprisals meet certain criteria, including the following:
…
- Reprisals are acts of State and must be undertaken only at the highest government level.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, p. 194.
Spain
Spain’s LOAC Manual (1996), in the chapter dealing with the exercise of command and its restrictions with regard to reprisals, states:
The taking of measures which constitute violations of the law of war, as a response to violations previously committed by the enemy with the aim of making such violations cease, is decided at the highest governmental level, because of the politico-military consequences to which they give rise.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 2.3.b.(6).
The manual further states that reprisals “require a decision taken at the highest political level”.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 11.10.c.
Spain
Spain’s LOAC Manual (2007) states:
The decision to take action that constitutes a violation of the law of armed conflict in response to abuses of the law by the enemy, with a view to stopping them, can only be taken at the highest level of government, in view of the political and military implications of such decisions.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(6).
Sweden
Sweden’s IHL Manual (1991) states:
Ultimately, responsibility for observance of the system of rules of international humanitarian law, among them the conventions, lies with the government. If in special circumstances the question arises of the use of prohibited means or methods as a measure of reprisal, or even the making of significant exceptions from international humanitarian law for reasons of military necessity, the responsibility for this would fall upon the government.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 4.1, p. 91.
Switzerland
Switzerland’s Basic Military Manual (1987), in its introductory remarks, states:
In case an adversary should not respect these international rules [“rules of international public law in times of armed conflict”], only the Conseil fédéral [Federal Council] would be competent to decide which measures would be opportune, especially possible reprisals, or to give the necessary instructions to the command of the army.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Introductory remarks, p. III.
In a provision dealing with reprisals, the manual further states: “Only the Conseil fédéral [Federal Council] is competent to order possible reprisals.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 197(1).
Togo
Togo’s Military Manual (1996) states that reprisals “may only be used if: … they are ordered at a high level”.
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 13.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “Although there is no clear rule of international law on the matter, reprisals should be resorted to only by order of a commander and never on the responsibility of an individual soldier.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 645.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states that reprisals can only be taken if “they are ordered at a high level”. For cases in which the United Kingdom should have recourse to reprisals against the enemy’s civilian population or civilian objects, the manual states that “the decision to do so will be taken at Government level”.
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 4, p. 17, §§ 14(e) and 17.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “As reprisals entail state responsibility, they must only be authorized at the highest level of government.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.17; see also § 5.18.
The manual also restates the interpretative declaration made by the UK upon ratification of the 1977 Additional Protocol I (see infra).
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.19.1.
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 Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.19.2.
United States of America
The US Field Manual (1956) stipulates:
When and how employed. Reprisals are never adopted merely for revenge, but only as an unavoidable last resort to induce the enemy to desist from unlawful practices. They should never be employed by individual soldiers except by direct orders of a commander, and the latter should give such orders only after careful inquiry into the alleged offence. The highest accessible military authority should be consulted unless immediate action is demanded, in which event a subordinate commander may order appropriate reprisals upon his own initiative. Ill-considered action may subsequently be found to have been wholly unjustified and will subject the responsible officer himself to punishment for a violation of the law of war. On the other hand, commanders must assume responsibility for retaliative measures when an unscrupulous enemy leaves no other recourse against repetition of unlawful acts.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 497(d).
United States of America
The US Air Force Pamphlet (1976) states:
In order to be considered a reprisal, an act must have the following characteristics when employed:
…
(8) It must be authorized by national authorities at the highest political level and entails full state responsibility.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 10-7(c)(8).
United States of America
The US Air Force Commander’s Handbook (1980) states: “A decision to violate the law in reprisal for enemy violations must be taken at the highest levels of the US government”.
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 1-3(a)(2).
The Handbook further states: “Only the national command authorities may authorize the execution of reprisals or other reciprocal violations of the law of armed conflict by US armed forces.”
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 8-4(b)(2).
United States of America
The US Instructor’s Guide (1985) states: “The individual soldier must never decide to make a reprisal. The decision to make a reprisal must be made at the highest command level.”
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 27.
United States of America
The US Naval Handbook (1995) provides: “To be valid, a reprisal action must conform to the following criteria: 1. Reprisal must be ordered by an authorized representative of the belligerent government.” It adds: “The President alone may authorize the taking of reprisal action by U.S. Forces.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), §§ 6.2.3.1 and 6.2.3.3.
United States of America
The Annotated Supplement to the US Naval Handbook (1997), in a part dealing with the necessity for the United States that the President alone may authorize the taking of reprisal action by US forces, states that there is “always the risk that it will trigger retaliatory escalation (counter-reprisals) by the enemy”. It adds:
Other factors which governments will usually consider before taking of reprisals include the following:
1. Reprisals may have an adverse influence on the attitudes of governments not participating in an armed conflict.
2. Reprisals may only strengthen enemy morale and underground resistance.
3. Reprisals may only lead to counter-reprisals by an enemy, in which case the enemy’s ability to retaliate is an important factor.
4. Reprisals may render enemy resources less able to contribute to the rehabilitation of an area after the cessation of hostilities.
5. The threat of reprisals may be more effective than their actual use.
6. Reprisals, to be effective, should be carried out speedily and should be kept under control. They may be ineffective if random, excessive, or prolonged.
7. In any event, the decision to employ reprisals will generally be reached as a matter of strategic policy. The immediate advantage sought must be weighed against the possible long-range military and political consequences.
…
In addition to the legal requirements which regulate resort to reprisals, there are various practical factors which governments will consider before taking reprisals. For example, when appeal to the enemy for redress has failed, it may be a matter of policy to consider before resorting to reprisals, whether the opposing forces are not more likely to be influenced by a steady adherence to the law of armed conflict.
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 6.2.3.3, footnote 52.
United States of America
The US Naval Handbook (2007) states: “To be valid, a reprisal action must conform to the following criteria: 1. Reprisal must be ordered by an authorized representative of the belligerent government.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.4.1.
The Handbook also states:
The President alone may authorize the taking of a reprisal action by U.S. forces. Although reprisals are lawful when the foregoing requirements are met, there is always the risk that such reprisals will trigger counter-reprisals by the enemy. The United States has historically been reluctant to resort to reprisal for just this reason.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.4.3.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “The armed forces of the SFRY [Socialist Federal Republic of Yugoslavia] shall undertake reprisals against the enemy … only by order of a commander who is competent to determine reprisals.”
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 29.
In another provision, the manual specifies that reprisals must be ordered by a competent commander (corps commander and equal or higher rank responsible for the sector in which the violation of the adversary took place), except when a commander of a lesser rank cannot establish contact with higher command. Reprisals against an entire enemy force can only be ordered by the Supreme Command.
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 30.
Argentina
Argentina’s Constitution (1994) provides for the competence of the President to order reprisals, with the authorization and approbation of the National Congress.
Argentina, Constitution, 1994, Articles 75(26) and 99(15).
Italy
Italy’s Law of War Decree (1938), as amended in 1992, provides:
Reprisals … are ordered by means of a “decree” of il Duce or by a delegated authority from him.
Reprisals … inasmuch as they consist of military operations, can also be ordered by the supreme commander, or, when an immediate or exemplary action is necessary, by any other commander.
Italy, Law of War Decree, 1938, as amended in 1992, Article 10.
No data.
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:
2.… The prohibition [of the taking of reprisals] may be waived on condition:
…
(b) that the decision to have recourse to such measures shall be taken by the Government of the Party alleging the violation.
France, Draft Article 74 bis Additional Protocol I submitted to the CDDH, Official Records, Vol. III, CDDH/I/ 221, 19 February 1975, p. 323.
France
At the CDDH, France made another proposal for a draft article on reprisals within the 1977 Additional Protocol I – which it later withdrew – which read, inter alia, as follows:
The measures [which are designed to repress the breaches and induce compliance with the Protocol] may be taken only when the following conditions are met:
…
(b) The decision to have recourse to such measures must be taken at the highest level of the government of the victimized Party.
France, Draft Article 74 bis Additional Protocol I submitted to the CDDH, Official Records, Vol. III, CDDH/I/ 221/Rev.1, 22 April 1976, p. 324.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom stated that in the event of violations of Articles 51–55 of the 1977 Additional Protocol I by the adversary, the United Kingdom would regard itself entitled to take measures otherwise prohibited by these Articles, noting, however, that such measures would be taken “only after a decision taken at the highest level of government”.
United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § (m).
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International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber stated:
It should also be pointed out that at any rate, even when considered lawful, reprisals are restricted by … (b) the obligation to take special precautions before implementing them (they may be taken only after a decision to this effect has been made at the highest political or military level; in other words they may not be decided by local commanders).
ICTY, Kupreškić case, Judgment, 14 January 2000, § 535.
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