Practice Relating to Rule 145. Reprisals
Section A. Definition and purpose of reprisals
Italy’s IHL Manual (1991) states:
The purpose of a reprisal is to induce the enemy to respect its obligations under international law and can be carried out either by means of acts similar to those illegally committed or by means of acts of a different nature. Therefore, a reprisal does not have the nature of a punishment, but is only a measure of direct coercion in inducing the enemy to respect its obligations towards [Italy] … Given the nature and scope of a reprisal, it can, as a general rule, only be directed against the belligerent that violated the laws of war with regard to [Italy].
The manual further states that the Italian Government has declared in international fora that, in response to grave and systematic violations of the obligations relative to the protection of the civilian population and civilian objects, Italy will react by every measure permitted under international law to prevent the recurrence of such violations.
Italy’s Law of War Decree (1938), as amended in 1992, states: “Reprisals have the aim of inducing the enemy to observe the obligations deriving from international law and can be carried out either by means of acts similar to those committed [by the enemy] or by means of acts of a different nature.”
Italy’s Wartime Military Penal Code (1941) provides for the punishment of a commander who orders the taking of acts of reprisal – other than those permitted under the law or international conventions – or who does not order them to be stopped.
In the Priebke case in 1996, the Military Tribunal of Rome stated that reprisals “are to carry out an act in order to bring a violation to an end or to deter the commission of other violations [of international law]”. It went on to state that “a reprisal is based on the need to recognise the injured State a means of self-help allowing it to attack any interest of the offending State”. The Tribunal further stated:
It is useful to underline that a reprisal must have as its objective prevention or repression, but not revenge. It must aim for the cessation or non-repetition of an illegitimate injurious act, and must be carried out in a direct manner for this purpose and must not be more serious as the [initial] violation. Otherwise it becomes an act which is itself unjust and illegitimate, giving rise to an endless spiral of disproportionate reactions.
In the Hass and Priebke case
in 1997, the Military Tribunal of Rome made a similar statement to the one made in its judgment in the Priebke case
in 1996 and added: “Reprisals basically are a sanction, that is a reaction to an unlawful act. The unlawfulness of the act to which it is replying gives lawfulness to the sanctional activities.” It further recalled the definition of reprisals contained in Italy’s Law of War Decree as amended.
In its relevant parts, this judgment was confirmed by Italy’s Military Appeals Court and the Supreme Court of Cassation.
During discussions on reprisals in Committee I of the CDDH, the representative of Italy stated: that “from the standpoint of the required conditions laid down, he could accept the [French] proposal [on a prohibition of reprisals] in principle”.