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Belligerent Reprisals Revisited*

Published online by Cambridge University Press:  07 July 2009

F. Kalshoven
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Extract

The international law of armed conflict aims to regulate the conduct of hostilities by belligerent parties and their armed forces and to protect certain especially vulnerable categories of people, such as prisoners of war and the inhabitants of occupied territories. How effective can it be in this pretension, and what mechanisms are available to promote compliance?

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Articles
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Netherlands Yearbook of International Law , Volume 21 , December 1990 , pp. 43 - 80
Copyright
Copyright © T.M.C. Asser Press 1990

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References

1. This is a mere working definition. For a fuller discussion of the concept and a definition of reprisal, see Kalshoven, F., Belligerent Reprisals (1971) Chapter I (pp. 1–44).Google Scholar

2. See the articles by the present author in this Yearbook: 2 (1971) pp. 68–90, 3 (1972) pp. 18–61, 5 (1974) pp. 3–34, 8 (1977) pp. 107–135, 9 (1978) pp. 107–171.

3. op. cit. n. 1.

4. An earlier version of the present paper appeared in German in 2 Humanitäres Völkerrecht, Informationsschriften 4 (October 1989) pp. 4–17Google Scholar. This periodical is a joint publication of the German Red Cross in the Federal Republic of Germany and the Institut für Friedenssicherungsrecht und Humanitäres Völkerrecht of the Ruhr University, Bochum.

5. Final Act, Schindler, D. and Toman, J., The Laws of Armed Conflicts, 3rd edn. (1988) p. 321.Google Scholar

6. Text of the 1906 Convention in Schindler and Toman, op. cit. n. 5, p. 301. The full title of the revised Convention is Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, signed at Geneva, 27 July 1929; Schindler and Toman, ibid. p. 325.

7. Convention Relative to the Treatment of Prisoners of War, signed at Geneva, 27 July 1929; Schindler and Toman, op. cit. n. 5, p. 339.

8. The Diplomatic Conference of 1929 saw no need to introduce a similar provision in its other product, the revised Wounded and Sick Convention (Schindler and Toman, op. cit. n. 5, p. 325). As explained by des Gouttes, P., La Convention de Genève du 27 juillet 1929, Commentaire (1930) pp. 22–24Google Scholar, the two Conventions of 1929 should be read together and the Conference consciously limited the sphere of application of the Wounded and Sick Convention to the armies on the battlefield, relegating to the Prisoners of War Convention all matters connected with the treatment of wounded or sick combatants evacuated as prisoners of war to the rear.

9. The suggestion was made in a report to the Xth International Conference of the Red Cross; see Kalshoven, op. cit. n. 1, pp. 71–72.

10. Ibid. at p. 74.

11. Ibid. pp. 79–80. It should be noted that the Conference also introduced in Arts. 86–88 of the 1929 Prisoners of War Convention, a set of rules defining the functions and powers of Protecting Powers in their role as outside supervisors and mediators, and expressing support for the ICRC in its humanitarian activities.

12. Final Act, Schindler and Toman, op. cit. n. 5, p. 367.

13. I. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Art. 46; II. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Art. 47; III. Geneva Convention relative to the Treatment of Prisoners of War, Art. 13, para. 3; and IV. Geneva Convention relative to the Protection of Civilian Persons in Time of War, Art. 33; Schindler and Toman, op. cit. n. 5, p. 367 et seq.

14. Final Act, Schindler and Toman, op. cit. n. 5, p. 741.

15. Art. 4, para. 4, of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague, 14 May 1954; Schindler and Toman, op. cit. n. 5, pp. 745–768, at p. 748.

16. Final Act, Schindler and Toman, op. cit. n. 5, p. 605.

17. ICRC, Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 46, para. 4; 1 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977) (hereinafter O.R.) Part Three, at p. 16.

18. 14 O.R. p. 109: CDDH/III/SR.14, para. 5. Mrs. Bindschedler-Robert, introducing the draft article on behalf of the ICRC, added that ‘There was of course nothing to prevent the Committee from introducing the concept of prohibition of reprisals into article 47, should it so desire.’

19. On the drafting history of the prohibitions at issue, see Nahlik, S.E., ‘Belligerent Reprisals as Seen in the Light of the Diplomatic Conference on Humanitarian Law, Geneva, 1974–1977’, 42 Law and Contemporary Problems (1978) no. 2, pp. 36–66CrossRefGoogle Scholar; also in French, , ‘Le problème des représailles à la lumière des travaux de ia conférence diplomatique sur le droit humanitaire’, in 82 RGDIP (1978) no. 1, pp. 130–169Google Scholar; Kalshoven, F., ‘Reprisals in the CDDH’, in Akkerman, R.J. et al. , eds., Declarations on Principles: A Quest for Universal Peace – Liber Amicorum Discipulorumque Prof. Dr. Bert V.A. Röling (1977) pp. 195–216, at p. 197Google Scholar; id., ‘The Belligerent Reprisals in the Light of the 1977 Geneva Protocols’, in European Seminar on Humanitarian Law (Jagellonian University, Krakow, 1979) (1980) pp. 31–46Google Scholar; Bierzanek, R., ‘Reprisals as a Means of Enforcing the Laws of Warfare: The Old and the New Law’, in Cassese, A., ed., The New Humanitarian Law of Armed Conflict (1979) pp. 232–257Google Scholar; see also Solf, W.A. in Bothe, M., Partsch, K. J. and Solf, W.A., New Rules for Victims of Armed Conflicts (1982) pp. 312–315.Google Scholar

20. Introducing in 1975 an amendment to this effect in Commission III, the present author emphasized that acceptance of the proposed ban on reprisals against civilians and civilian objects alike ‘would make it an urgent task for the Conference to continue its search for other mechanisms that could effectively contribute to enforcing the rules on protection of the civilian population.’ 14 O.R. p. 114: CDDH/III/SR.14, para. 26.

21. The vote in Commission III was 58 in favour, 3 against, with 9 abstentions; 14 O.R. p. 219: CDDH/III/SR.24, para. 16.

22. 3 O.R. p. 323: CDDH/1/221, 19 February 1975: proposal for a new Art. 74 bis; ibid. p. 324: CDDH/I/221/Rev.1, 22 April 1976, revised version of the proposal.

23. Polish proposal for a new Art. 70 bis: 3 O.R. p. 313: CDDH/III/103, 1 October 1974; simultaneous withdrawal of French and Polish proposals: 9 O.R. p. 417: CDDH/I/SR.72, paras. 1–4. See also, for a fuller discussion of the negotiating history of these proposals, Bierzanek, loc. cit. n. 19, in particular pp. 249–250.

24. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted on 8 June 1977; 1 O.R. pp. 115–183; Schindler and Toman, op. cit. n. 5, p. 621. The Conference also adopted a Protocol II on internal armed conflict: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II); 1 O.R. pp. 185–198; Schindler and Toman, ibid. p. 689.

25. Art. 51 reads as follows:

1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.

2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.

4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:

(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannot be directed at a specific military objective;

(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;

and consequently, in each such case, are of a nature to strike military objectives and civilian objects without distinction.

5. Among others, the following types of attacks are to be considered as indiscriminate:

(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and

(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

6. Attacks against the civilian population or civilian objects by way of reprisals are prohibited.

7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians to attempt to shield military objectives from attacks or to shield military operations.

8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57.

26. Art. 52 continues as follows:

1. …Civilian objects are all objects which are not military objectives as defined in paragraph 2.

2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed to be not so used.

27. Art. 53 reads as follows:

Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:

(a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;

(b) to use such objects in support of the military effort;

(c) to make such objects the object of reprisals.

28. Art. 54 reads as follows:

1. Starvation of civilians as a method of warfare is prohibited.

2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

3. The prohibitions in para. 2 shall not apply to such of the objects covered by it as are used by an adverse Party:

(a) as sustenance solely for the members of its armed forces; or

(b) if not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.

4. These objects shall not be made the object of reprisals.

5. In recognition of the vital requirements of any Party to the conflict in the defence of its national territory against invasion, derogation from the prohibitions contained in paragraph 2 may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity.

29. Para. 1 of Art. 55 provides that:

Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the civilian population.

30. Art. 56 reads as follows:

1. Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.

2. The special protection against attack provided by paragraph 1 shall cease:

(a) for a dam or dyke only if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support;

(b) for a nuclear electrical generating station only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support;

(c) for other military objectives located at or in the vicinity of these works or installations only if they are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.

3. In all cases, the civilian population and civilians shall remain entitled to all the protection accorded them by international law, including the protection of the precautionary measures provided for in Article 57. If the protection ceases and any of the works, installations or military objectives mentioned in paragraph 1 is attacked, all practical precautions shall be taken to avoid the release of the dangerous forces.

4. It is prohibited to make any of the works, installations or military objectives mentioned in paragraph 1 the object of reprisals.

5. The Parties to the conflict shall endeavour to avoid locating any military objectives in the vicinity of the works or installations mentioned in paragraph 1. Nevertheless, installations erected for the sole purpose of defending the protected works or installations from attack are permissible and shall not themselves be made the object of attack, provided that they are not used in hostilities except for defensive actions necessary to respond to attacks against the protected works or installations and that their armament is limited to weapons capable only of repelling hostile action against the protected works or installations.

6. The High Contracting Parties and the Parties to the conflict are urged to conclude further agreements among themselves to provide additional protection for objects containing dangerous forces.

7. In order to facilitate the identification of the objects protected by this Article, the Parties to the conflict may mark them with a special sign consisting of a group of three bright orange circles placed on the same axis, as specified in Article 16 of Annex I to this Protocol. The absence of such marking in no way relieves any Party to the conflict of its obligations under this Article.

31. Art. 20; the ‘persons and objects protected by this Part’ are, in the main, the wounded, sick and shipwrecked, whether military or civilian; medical and religious personnel; and medical units and transport; all of this as defined in Art. 9. The ban on reprisals in Art. 20 is, so to say, a natural prolongation of the earlier prohibitions in Conventions I, II and IV of 1949.

32. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, with annexed Protocols, of 10 October 1980; Schindler and Toman, op. cit. n. 5, p. 179.

33. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II).

34. The list in Schindler and Toman, op. cit. n. 5, pp. 769–773, based on a communication from UNESCO dated 28 July 1986, contains 74 ratifications and accessions.

35. On this, see Kalshoven, op. cit. n. 1.

36. Ibid. p. 358.

37. Draper, G.I.A.D., ‘The Implementation and Enforcement of the Geneva Conventions of 1949 and of the Two Additional Protocols of 1978’, 164 Hague Recueil (1979-II) pp. 9–53, at p. 35.Google Scholar

38. Sofaer, A.D., ‘The Rationale for the United States Decision Not to Ratify’, 82 AJIL (1988) pp. 784–787, at p. 785.CrossRefGoogle Scholar

39. Roberts, G.B., ‘The New Rules for Waging War: The Case Against Ratification of Additional Protocol I’, 26 Virg. JIL (1985) pp. 109–170, at p. 143–144Google Scholar. G.H. Aldrich, in his response to Roberts' attack on Protocol I, concedes that ‘the Protocol may have gone too far in prohibiting reprisals’: ‘Progressive Development of the Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol’, ibid. pp. 693–720, at p. 710.

40. Greenwood, C.J., ‘The Twilight of the Law of Belligerent Reprisals’, 20 NYIL (1989) pp. 35–69CrossRefGoogle Scholar. An earlier version of this essay was given as a paper to the British Institute of International and Comparative Law and published in Meyer, M.A., ed., Armed Conflict and the New Law (1989) pp. 227–250.Google Scholar

41. The interpretation Greenwood places on some of these provisions reminds the reader of objections raised by certain military circles after the adoption of the Protocol. Their objections may stem not so much from a genuine concern that faithful application of the provisions in question would expose their armed forces to an increased risk of casualties, as from a certain reluctance to accept a set of rules not of their own making and, where necessary, adjust their operations plans to the precise terms of these rules.

42. Meyrowitz, H., ‘Die Repressalienverbote des I. Zusatzprotokolls zu den Genfer Abkommen vom 12. August 1949 und das Reziprozitätsprinzip’, 5 Neue Zeitschrtft für Wehrrecht (1986) pp. 177–193, at p. 182.Google Scholar

43. For the text of Art. 56, see supra n. 30.

44. The New Humanitarian Law in War and Conflict, report of an international symposium held on 25 and 26 September 1978, under the auspices of the Netherlands Red Cross Society, at the Peace Palace in The Hague, p. 11.

45. Ibid. pp. 32–34.

46. Hampson, F.J., ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949’, 37 ICLQ (1988) pp. 818–843, at p. 843CrossRefGoogle Scholar; footnotes omitted.

47. See the history of the French and Polish proposals for new articles aiming, respectively, to restore and regulate the right of reprisal, or to ban all reprisals; supra, text at nn. 22, 23.

48. Interestingly, the Polish delegate made the withdrawal of his proposal for a ban on all reprisals ‘conditional on the agreement by other delegations, that the proposed fact-finding commission should be optional’; supra n. 23, para. 4. The Polish view at the time was, of course, that such a commission of individuals empowered to investigate violations of the law of armed conflict was totally unacceptable.

49. See the fascinating discussion by Best, G., ‘Civilians in Contemporary Wars: A Problem in Ethics, Law, and Fact’, 35 Air University Review (1984) no. 3, pp. 29–40.Google Scholar

50. It may be useful to quote the relevant paragraph from Mr. O. Bring's statement in full: ‘In the Working Group his delegation had opposed the proposed article regulating the permissibility of reprisals. Several delegations had sought to explain such opposition by the emotional revulsion generated by the very word “reprisals”. His delegation had pointed out that its stand was based not on an emotional reflex but on the knowledge that in practice counter-measures never led to observance of the law. It had attempted to show that the threat of reciprocal treatment would always be real to those who violated the rules of humanitarian law – irrespective of any legal rules – but that a formal legalisation of reprisals would be an invitation to misuse and abuse. Sweden had attempted to weigh up the pros and cons of the idea of reprisals and had found that the balance was against it. It was therefore with a sense of satisfaction that his delegation noted that the results achieved by the Conference aimed at a further limitation of the institute of reprisals in customary law’: 6 O.R. p. 210: CDDH/SR.42, para. 35.

51. The present author suggested earlier (at the 1978 Hague symposium, supra n. 44) that the prohibitions of recourse to reprisals in Arts. 51–56 do not exclude the power of belligerents to threaten such reprisals. W. A. Solf has objected that the argument is fallacious because ‘a threatened reprisal will be regarded as a bluff if made by a Party which usually complies with the law of armed conflict. The credibility of such a threat is enhanced only if there is a general cynical attitude about the effectiveness of conventional restraints on the use of force1’: Solf, op. cit. n. 19, p. 315. The criticism is repeated by Roberts, loc cit. n. 39, p. 142. While this once again amounts to a matter of ‘tossing a coin in the air’, this author is not convinced by the criticism. In his view, the potential effect of a threat of reprisal depends at least as much on the circumstances on the side of the ‘threatee’ as on that of the ‘threator’.

52. See Kalshoven, op. cit. n. 1, pp. 177–178, 358.

53. Art. 19 reads as follows:

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:

(a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or

(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

54. Lot cit. n. 39, p. 145. In the same sense: Bierzanek, lot cit. n. 19, p. 255.

55. Loc. cit. n. 39.

56. Kalshoven, ‘The Belligerent Reprisals …’, loc. cit. n. 19, pp. 40–42.

57. While the matter of acceptance and objection to reservations is not without controversy, the above text simply relies on Arts. 19–21 of the Vienna Convention on the Law of Treaties.

58. For such a line of argument, see Imbert, P.-H., Les réserves aux traités multilatéraux (1979) p. 265.Google Scholar

59. ibid. at p. 266 et seq.

60. Art. 90 provides, in the main, that an International Fact-Finding Commission consisting of fifteen members of high moral standing and acknowledged impartiality shall be established once not less than twenty High Contracting Parties have agreed to accept its competence as defined in the Article, and that those elected as members shall serve in their personal capacity; according to para. 2(c), the Commission shall be competent to: (i) enquire into any facts alleged to be a grave breach as defined in the Conventions and the Protocol or other serious violation of these instruments; (ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and the Protocol.

61. 29 Int. Rev. of the Red Cross (1989) p. 591.

62. 26 Int. Rev. of the Red Cross (1986) p. 114.

63. Meyrowitz regards the Italian declaration as an outright reservation of the right of reprisal; loc cit. n. 42, p. 192.

64. Schindler and Toman, op. cit. n. 5, p. 115.

65. Meyrowitz, lot cit. n. 42, p. 185.

66. The Convention was adopted by the United Nations Conference on the Law of Treaties on 22 May 1969 and opened for signature on 23 May 1969; text in A/CONF. 39/27.

67. In the same sense: Bierzanek, loc cit. n. 19, p. 252.

68. Art. 36 provides that ‘In the study, development, acquisition or adoption of a new weapon, means or method of warfare’ a State party ‘is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited…’

69. On this, see Kalshoven, F., ‘Arms, Armaments and International Law’, 191 Hague Recueil (1985-II) p. 251 et seq.Google Scholar

70. Art. 4, para. 2, of the Mines Protocol prohibits the use of mines that are not remotely delivered and certain other devices ‘in any city, town, village or other area containing a similar concentration of civilians in which combat between ground forces is not taking place or does not appear to be imminent, unless … measures are taken to protect civilians from their effects’.

71. The Article prohibits ‘in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons’.

72. Supra, text at n. 23.

73. This author has advanced the argument developed in the text above on an earlier occasion: lot cit. n. 19: ‘The Belligerent Reprisals in the Light of the 1977 Geneva Protocols’. The present further development and, it is hoped, clarification of the argument is in response to some critical comments by Prof. George Aldrich.

74. The text adds: ‘in particular to provisions prohibiting any form of reprisals against persons protected by such treaties’. In the context of the present argument this phrase is irrelevant, as the question at issue is precisely whether reprisals are permissible where they have not been prohibited.

75. Meyrowitz rightly points out that the reprisal itself does not imply a suspension of the rule: a reprisal, whether or not in kind, serves precisely to uphold the rule or rules involved: loc. cit. n. 42, p. 178.

76. Meyrowitz suggests that with respect to such rules, a state ratifying Protocol I might reserve the right to apply the customary principle of reciprocity: loc cit. n. 42, p. 192.

77. Grotius, H., De Jure Belli Ac Pacts, III, X, 1.1Google Scholar; and see Kalshoven, F., ‘Grotius' Jus in Bello with Special Reference to Ruses of War and Perfidy’, in Dufour, A., Haggenmacher, P. and Toman, J., eds., Grotius et l'Ordre juridique international (1985) pp. 89–100.Google Scholar

78. For the facts mentioned in the text and for further detailed information, see the list of signatures, ratifications, accessions and notifications of continuity in Schindler and Toman, op. cit. n. 5, p. 117.

79. It did, on the other hand, accompany its ratification with a long statement reserving to the President the right to resort to the use of tear-gases in certain well-defined situations; 40 US Federal Register, No. 70 (1975) p. 16187; reprinted in 14 ILM (1975) p. 794; see also Kalshoven, loc cit. n. 69, pp. 269–270.

80. Vienna Convention on the Law of Treaties, Art. 21, para. 1(b).

81. The neglect applies to the conferences of 1949 and 1954, the refusal to that of 1974–1977.

82. As noted in the ICRC's Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) p. 1372Google Scholar note 18, ‘Several delegations argued that rules on reprisals concerned only relations between States, as subjects of international law possessing facultas bellandi’.

83. 10 O.R. pp. 181–296, at pp. 234–235: CDDH/405/Rev.1: Report of Committee 1, Annex II: Report of Working Group B, Addendum: Report of Sub-Group on Reprisals in Draft Protocol II; pp. 217–219: consideration of proposals in Working Group B.

84. 7 O.R. p. 109: CDDH/SR.51, para. 16. On the occasion of the vote, the representative of the United States of America, Aldrich, ‘said he hoped that if put to the vote, [the proposed article] would be rejected, since the whole concept of reprisals had no place in Protocol II’; ibid. p. 108: para. 7. In this, he was immediately supported by Dixit, the representative of India; ibid. para. 8. While Aldrich may have had a legal argument in mind, Dixit definitely was only considering the political aspect of the matter.

I. Detter de Lupis suggests that the failure to incorporate reprisals in Protocol II may be a result of ‘the confused notion of belligerent reprisals as being undefined and mistaken for having similar characteristics and legal effects as State reprisals’: to her, ‘belligerent reprisals are of a completely different type: they are not used to retaliate against a State for what that State has done in violation of international law. In a large majority of cases it is individuals who have committed an act of hostility, perhaps in violation of the laws of war by using civilian status, or by abusing the protective status of an open town, and the reprisals are taken against other innocent individuals, usually against civilians’. The Law of War (1987) pp. 254–255, 258Google Scholar. Needless to say, the present author does not endorse her redefinition of belligerent reprisals.

85. Supra n. 83. See also Bothe, Partsch and Solf, op. cit. n. 19, pp. 636–637.

86. Art. 4 is headed ‘Fundamental guarantees’. Paras. 1 and 2 read as follows:

1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.

2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever:

(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

(b) collective punishments;

(c) taking of hostages;

(d) acts of terrorism;

(e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

(f) slavery and the slave trade in all their forms;

(g) pillage;

(h) threats to commit any of the foregoing acts.

87. Op. cit. n. 82, p. 1372: para. 4528.

88. Supra n. 17.

89. Op. cit. n. 82, pp. 1372–1373: paras. 4530–4531.

90. Ibid. p. 1374: para. 4536.

91. Ibid. p. 1373: para. 4531.

92. Art. 1, para. 4, provides that the situations to which it applies ‘include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’.

93. As this author wrote earlier, ‘after the participants to the Conference, it will be the turn of the participants in actual hostilities to demonstrate their willingness to take, in terms of Article 57, paragraph 1 [of Protocol I], “constant care …to spare the civilian population, civilians and civilian objects”.’: 9 NYIL (1978) pp. 107–171, at p. 146