Practice Relating to Rule 145. Reprisals
Section F. Limitation of reprisals by principles of humanity
Italy’s IHL Manual (1991), in the part dealing with reprisals, states:
The Italian laws of war, which are modelled upon the principles of civilization and humanity as much as it is permitted by military necessity, provides for the humane treatment of enemy combatants, wounded or prisoners, as well as of the civilian population, even in cases in which there is no special obligation under international law to do so.
In the Kappler case in 1948, dealing with the Ardeatine Caves massacre during the Second World War, the Military Tribunal of Rome stated:
Reprisals are subject to a general limitation which consists in the duty not to violate those rights intended to safeguard fundamental needs. This principle … now finds clear expression in the preamble of the Hague Convention … where the activities of States are set a limit by “the principles of the law of nations, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience”.
In its judgment in the Priebke case in 1996, the Military Tribunal of Rome, with regard to the principle of proportionality to which reprisals were subject, stated:
This is confirmed by the general limit on States’ freedom to act, fixed by international custom and recalled in the preamble to the Hague Convention of 1907 which prohibits injuring fundamental rights established by “ius gentium”, by the customs of civilized States, by the laws of humanity and by the exigencies of public conscience.
In its judgment in the Hass and Priebke case
in 1997, the Military Tribunal of Rome stated that actions taken by way of reprisals could never violate the fundamental and primary requirements of humanity and public conscience.
The Report on the Practice of Italy, having discussed the decisions in the Schintlholzer
, and Hass and Priebke
cases, concludes that it is the opinio juris
of Italy that States acting by way of reprisal could never violate the general limit fixed to their actions by customary law and by the preamble to the 1907 Hague Convention (IV).