Practice Relating to Rule 145. Reprisals
Section C. Proportionality of reprisals
Italy’s IHL Manual (1991) provides: “The reprisal must be sufficiently proportionate to the gravity of the offence suffered and may not consist, except in cases of absolute necessity, in belligerent acts directed against the civilian population.”
In its judgment in the Kappler case
in 1948, Italy’s Military Tribunal of Rome found that the massacre of 335 prisoners in the Ardeatine Caves, ordered as a reprisal for a bomb attack by the Italian resistance which killed 33 German military policemen, was disproportionate, because of the ratio of 10:1 and because of the ranks of the executed Italian prisoners.
In its judgment in the Priebke case
in 1996 in connection with the Ardeatine Caves massacre during the Second World War, Italy’s Military Tribunal of Rome stated: “The principle of proportionality has never been questioned by international law scholars, as it finds its origin in the unquestionable axioms of rationality.” The Tribunal found that the executions were grossly disproportionate.
In its judgment in the Hass and Priebke case
in 1997 concerning the Ardeatine Caves massacre during the Second World War, Italy’s Military Tribunal of Rome, with respect to the conditions required for a reprisal, stated: “Also such a reaction must be proportionate to the damage suffered.” It found unacceptable the disproportion between the deaths of 33 German soldiers and the execution of 335 persons.
In its relevant parts, the decision was confirmed by the Military Appeals Court and the Supreme Court of Cassation.