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The Twilight of the Law of Belligerent Reprisals

Published online by Cambridge University Press:  07 July 2009

C. Greenwood
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Extract

Belligerent reprisals have long occupied a curious position in the law of armed conflict. They are one of the oldest means for the enforcement of that law, and, until recently, were widely regarded as indispensable. Yet the scope for abuse and the danger that reprisals, far from enforcing the law, can produce an escalating spiral of atrocities completely undermining respect for the law have also long been recognized. Thus, the Lieber Code of 1863 states that:

‘The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilised nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage’.

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Articles
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Netherlands Yearbook of International Law , Volume 20 , December 1989 , pp. 35 - 69
Copyright
Copyright © T.M.C. Asser Press 1989

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References

1. See Kalshoven, F., Belligerent Reprisals (1971).Google Scholar

2. General Orders No. 100, Art. 27, promulgated by the United States Government in 1863. The text appears in Schindler, D. and Toman, J., eds., The Laws of Armed Conflict, 3rd edn. (1988) p. 3.Google Scholar

3. Ibid. Art. 28(2).

4. British Manual of Military Law (1929 edn.) Amendment No. 12, 1936, substituting a new Chap. 14, entitled ‘The Laws and Customs of War on Land’, para. 454. The 1958 Manual ceases to make a virtue out of the effect of reprisals on the innocent but continues to regard the belligerent reprisal as an important sanction; see British Manual of Military Law, Part III, para. 642.

5. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1977, Cmnd. 6927. See Schindler and Toman, op. cit. n. 2, p. 621.

6. Whether belligerent reprisals continue to take place outside the law is, of course, another matter.

7. 38 Annuaire (1934) pp. 708–711.

8. Oppenheim, L.F.L., International Law, Lauterpacht, H., ed., vol. II, 7th edn. (1952) pp. 136–137Google Scholar. See also Sandoz, Y., Swinarski, C. and Zimmerman, B., eds., Commentary on the Additional Protocols, an ICRC publication (1987) pp. 242–243 and 982–983 (hereinafter ‘ICRC Commentary — Protocols’).Google Scholar

9. See Bowett, D.W., ‘Reprisals Involving Recourse to Armed Force’, 66 AJIL (1972) p. 1CrossRefGoogle Scholar, and Barsotti, R., ‘Armed Reprisals’, in Cassese, A., ed., The Current Legal Regulation of the Use of Force (1986).Google Scholar

10. The prohibitions on reprisals against specified targets contained in the Geneva Conventions and in Protocol I do not, therefore, prohibit a State from taking measures of retorsion against such targets. See ICRC Commentary — Protocols, op. cit. n. 8, p. 243.

11. 94 LNTS (1929) p. 65.

12. See Kalshoven, op. cit. n. 1, pp. 347–348.

13. Fourth Geneva Convention, 1949, Art. 19, 75 UNTS (1950) p. 287; Schindler and Toman, op. cit. n. 2, p 495. Cf., Protocol I, n. 5 supra, Art. 13.

14. On this subject in general, see Meron, T., ‘The Geneva Conventions as Customary Law’, 81 AJIL (1987) p. 348.CrossRefGoogle Scholar

15. See the text accompanying nn. 66–67.

16. Some military manuals add a further condition that reprisals may be ordered only by the highest authorities (see, e.g., the United States Department of the Army Field Manual, The Law of Land Warfare (FM-27–10) (1956) p. 177). While the serious consequences which reprisals may entail make it desirable that such a decision should be taken at the highest level, that would seem to be more a matter of military discipline than international law. See the British Manual of Military Law (1958) Part III para. 645.

17. (1948), 15 AD (1948) 632 at 637.

18. ‘Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict …’ (Fifth preambular paragraph).

19. ‘The Limits of the Operation of the Law of War’, 30 BYIL (1953) p. 206 at p. 212Google Scholar. See also Greenwood, C., ‘The Relationship between ius ad bellum and ius in bello’, 9 Rev. Int. Studies (1983) p. 221.CrossRefGoogle Scholar

20. This view is taken by, inter alia, Kalshoven, op. cit. n. 1 at p. 157 and McDougal, M. and Feliciano, F., Law and Minimum World Public Order (1961) p. 681.Google Scholar

21. Pact for the Renunciation of War, 1928, 94 LNTS (1929) p. 57.

22. See the discussion in Kalshoven, op. cit. n. 1, pp. 115–160 and Rowson, S., ‘Modern Developments in Prize Law’, 23 BYIL (1946) p. 346.Google Scholar

23. (1949), 16 AD (1949) 526; Kalshoven, op. cit. n. 1, pp. 242–255.

24. See Hampson, F., ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949’, 37 ICLQ (1988) p. 818 at pp. 822–823.CrossRefGoogle Scholar

25. The United Nations conducted investigations into both the use of poison gas and the treatment of prisoners of war.

26. The problem is rendered particularly acute by the fact that Protocol I now seems unlikely to attract the almost universal acceptance given to the 1949 Conventions. The difficult question of which of the provisions of the Protocol reflect customary international law thus becomes all the more important.

27. Greenspan, M., The Modern Law of Land Warfare (1959) pp. 410–411Google Scholar; Hampson, loc. cit. n. 24, at p. 823. See the discussion of the question of imputability in the case of Kappler (the ‘Ardeatine Caves’ case) 15 Ann. Digest 471, where an Italian court had to consider the imputability of acts of the Italian resistance to the Government of Italy; the case is discussed in Kalshoven, op. cit. n. 1, pp. 233–242.

28. Order in Council of 11 June 1940, S.R. & O. 1940, No. 979, extending the maritime reprisals to Italy (discussed by Kalshoven, op. cit. n. 1, pp. 120 and 156). On the measures against Japan, see Rowson, loc. cit. n. 22.

29. See, e.g., the British Manual of Military Law (1958) Part III para. 648; Kalshoven, op. cit. n. 1, pp. 341–342; Greenspan, op. cit. n. 27, p. 412. Stone, J., Legal Controls of International Conflict, 2nd edn. (1959) pp. 354–355Google Scholar, doubts that this requirement can realistically be insisted upon, but his is a minority view.

30. Oxford Manual, The Laws of War on Land, published by the Institut de droit international in 1880, Art. 86; Schindler and Toman, op. cit. n. 2, p. 48. See also the texts cited in n. 29 supra.

31. Op. cit. n. 20, p. 682.

32. Ibid.

33. See, e.g., the decisions in Rauter, n. 23 supra, List, n. 17 supra, and Von Leeb (1948), 15 AD (1948) 376.

34. Op. cit. n. 1, pp. 341–342.

35. (1948), 15 AD (1948) 471. See also the trials of Von Mackensen and Maelzer, 8 War Crimes Reps. 1 and Kesselring, 8 War Crimes Reps. 9, in which two British Military Courts tried senior German officers in respect of the same incident.

36. The court considered the question of proportionality, because there was at that time some ground for believing that the execution of reprisal prisoners in this fashion was lawful, so long as the reprisal was proportionate; see the decision in List, n. 17 supra, and the criticism of this view by Lord, Wright, ‘The Killing of Hostages as a War Crime’, 25 BYIL (1948) p. 296Google Scholar. Reprisal killings of this kind would undoubtedly be unlawful today, regardless of whether they were proportionate.

37. British Manual of Military Law (1958) Part III pp. 184–185, and the United States Department of the Army Field Manual, The Law of Land Warfare (FM-27–10) (1956) at p. 177.

38. Thus, the secrecy of Hitler's Commando Order, ordering the execution of captured commandoes, removed any possibility that the order might have been justified as a reprisal.

39. Op. cit. n. 1, p. 147 et seq.

40. Ibid.

41. See the British and United States Manuals, supra n. 37.

42. 2 RIAA (1928) 1013.

43. See, e.g., the British Manual, op. cit. n. 37, para. 646, and the United States Field Manual, op. cit. n. 37, para. 497.

44. Op. cit. n. 1, p. 340.

45. See, e.g., the decision of the International Court of Justice in the Case Concerning the United States Diplomatic and Consular Staff in Tehran, ICJ Rep. 1980 p. 3.

46. McDougal and Feliciano, op. cit. n. 20, pp. 688–689; British Manual, op. cit. n. 37, para. 646; United States Field Manual, op. cit. n. 37, para. 497(b).

47. E.g., the Oxford Manual, op. cit. n. 30, Art. 86(3).

48. For the modern position, see section 4 of this article. Considerations of humanity probably constitute a general principle which has acted as the inspiration for many of these developments of the law of reprisals but it must be questioned whether they constitute a separate customary law requirement.

49. See Kalshoven, op. cit. n. 1, pp. 342–344.

50. Portugal v. Germany (1929), 5 AD (1929–1930) 487.

51. Ibid. See also Greenspan, op. cit. n. 27, p. 583.

52. Lauterpacht, op. cit. n. 8, vol. II, 7th edn. (1952) pp. 677–680.

53. See Greenwood, C., ‘The Concept of War in Modern International Law’, 36 ICLQ (1987) p. 283 at pp. 297–301.CrossRefGoogle Scholar

54. For a discussion of the law of naval warfare in the Gulf conflict, see Gray, C., ‘The British Position in Regard to the Gulf Conflict’, 37 ICLQ (1988) p. 420CrossRefGoogle Scholar; Leckow, R., ‘The Iran-Iraq Conflict in the Gulf: the Law of Zones’, 37 ICLQ (1988) p. 629CrossRefGoogle Scholar and the panel discussion in Proceedings of the American Society of International Law 1988 (forthcoming).

55. Both belligerents tended to attack neutral shipping outside the zones which they had proclaimed and often for no apparent reason. In addition, Iran attacked ships trading with Kuwait on the ground that Kuwait was giving financial assistance to Iraq. Neither side consistently rationalised its acts by reference to traditional concepts of reprisals.

56. See Greenwood, loc. cit. n. 53, and Ronzitti, N., ‘The Crisis in the Law of Naval Warfare’, in Ronzitti, N., ed., The Law of Naval Warfare (1988) pp. 48–50.Google Scholar

57. See Gray, loc. cit. n. 54, for a discussion of certain British statements on this question.

58. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 UNTS (1950) p. 31 (‘First Convention’); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1949, 75 UNTS (1950) p. 85 (‘Second Convention’); Geneva Convention Relative to the Treatment of Prisoners of War, 1949, 75 UNTS (1950) p. 135 (‘Third Convention’); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, 75 UNTS (1950) p. 287 (‘Fourth Convention’). The texts of all four Conventions are also reproduced in Schindler and Toman, op. cit. n. 2.

59. Geneva Convention Relative to the Treatment of Prisoners of War, 1929, 118 LNTS (1930) p. 303.

60. See Kalshoven, op. cit. n. 1, pp. 178–199. The most famous such incident is the dispute between the United Kingdom and Germany over the shackling of prisoners, op. cit. at p. 178.

61. There are 165 parties to the Geneva Conventions. Apart from a few newly independent States, the only State which is not a party is Burma, which remains bound by the 1929 Conventions.

62. ‘Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals’. (Art. 4(1)).

63. See infra, the text accompanying nn. 89–96.

64. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1977, Cmnd. 6927, Schindler and Toman, op. cit. n. 2, p. 621.

65. See ICRC Commentary – Protocols, op. cit. n. 8, pp. 982–986.

66. For a discussion of the debates at the Conference, see Bierzanek, R., ‘Reprisals as a Means of Enforcing the Laws of Warfare’, in Cassese, A., ed., The New Humanitarian Law of Armed Conflict (1979) p. 233Google Scholar; Kalshoven, F., ‘Belligerent Reprisals in the Light of the 1977 Geneva Protocols’, in Jagellonean University and the ICRC's European Seminar on Humanitarian Law (1979) p. 31Google Scholar; and Nahlik, S., ‘Belligerent Reprisals as Seen in the Light of the Diplomatic Conference on Humanitarian Law’, 42 Law and Contemporary Problems (1978) no. 2, p. 36.CrossRefGoogle Scholar

67. Under Art. 52(2), a civilian object is defined as any object which is not a military object. The latter term is confined to ‘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’.

68. This provision adds little to Art. 4(4) of the Hague Convention for the Protection of Cultural Property, 1954, 249 UNTS (1956) p. 240, for those States party to that Convention.

69. This provision is highly complex, since such works and installations lose their protection in certain circumstances. The significance of Art. 56(4) is that an attack which is contrary to Art. 56(1) cannot be justified by reference to the doctrine of reprisals.

70. Protocol I applies between parties to the Protocol in cases of international armed conflicts and, by virtue of Arts. 1(4) and 96(3) between a party to the Protocol and a national liberation movement which qualifies as such under those two provisions. At the time of writing there were 76 parties to Protocol I. Of the major military powers, France and the United States had decided not to become parties, the USSR and the United Kingdom had not announced a decision. China alone of the permanent members of the Security Council had ratified the Protocol.

71. See ICRC Commentary — Protocols, op. cit. n. 8, pp. 986–987. Nahlik, lot cit. n. 66, p. 56, suggests that the express prohibitions of reprisals also leave open the possibility of taking reprisals against a number of other persons and objects but most of those which he lists are either covered by the provisions of the Protocol or the Conventions or constitute military objectives in any event.

72. On this subject, compare, Bothe, M., Partsch, K.J. and Solf, W., New Rules for Victims of Armed Conflicts (1982) pp. 290–292Google Scholar, with Rauch, E., The Protocol Additional to the Geneva Conventionsfor the Protection of Victims of International Armed Conflicts and the United Nations Convention on the Law of the Sea: Repercussions on the Law of Naval Warfare (1984) pp. 57–61.Google Scholar

73. Ronzitti, op. cit. n. 56, pp. 48–50.

74. Supra n. 68.

75. Supra n. 11.

76. Kalshoven, op. cit. n. 1, p. 103 et seq.

77. Convention on the Prohibition of Military or Other Hostile Use of Environmental Modification Techniques, 1977, Cmnd. 7469, Schindler and Toman, op. cit. n. 2, p. 163.

78. 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, 1980, Cmnd. 8370, Schindler and Toman, op. cit. n. 2, p. 179.

79. Kalshoven, F., ‘Arms, Armaments and International Law’, 191 Hague Recueil (1985-1911) p. 183 at pp. 298–299 and 303–304.Google Scholar

80. E.g., Protocol I on Non-detectable Fragments.

81. Hague Declaration No. 3, 1899, 187 CTS 459, Schindler and Toman, op. cit. n. 1, p. 109.

82. Draper, G., ‘The Implementation and Enforcement of the Geneva Conventions of 1949 and the TWo Additional Protocols’, 164 Hague Recueil (1979-III) p. 1 at p. 35.Google Scholar

83. Ibid. at p. 45. A glance at the list of States which have so far made declarations under Art. 90 (Sweden, Finland, Norway, Switzerland, Denmark, Austria, Italy, Belgium, Iceland, the Netherlands and New Zealand) reinforces this conclusion. It is difficult to envisage a conflict between any of these States.

84. CDDH/SR.58, para. 81.

85. In the words of the United States Military Tribunal in List, supra n. 17, ‘military necessity or expediency do not justify a violation of positive rules … the rules of international law must be followed even if it results in the loss of a battle or even a war’.

86. Pictet, J., Commentary on the Fourth Convention (1958) p. 15.Google Scholar

87. ICRC Commentary — Protocols, op. cit. n. 8, pp. 34–38.

88. Nahlik, while firmly opposed to preserving any right of reprisal in the law of Geneva, accepts that such a right is a necessary feature of the law of The Hague (although he regards the provisions of Protocol I as lying wholly outside the scope of Hague Law); supra n. 23, pp. 65–66.

89. See Cassese, A., ‘The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law’, 3 UCLA Pacific Basin LJ (1984) p. 55Google Scholar; and Greenwood, C., ‘The Application of the Geneva Protocols of 1977 and their Impact on General Humanitarian Law’, in Condorelli, L., ed., Proceedings of the Geneva Colloquium on the Protocols of 1977 (forthcoming).Google Scholar

90. See the discussion of the different views in Kalshoven, op. cit. n. 1, pp. 112–114, 173–178 and 357–361.

91. See, e.g., the decision in List, n. 85 supra.

92. See Kalshoven, op. cit. n. 1, p. 361.

93. For the importance of this factor, see Baxter, R.R., ‘Multilateral Treaties as Evidence of Customary International Law’, 41 BYIL (1965-1966) p. 275 at p. 286.Google Scholar

94. Cassese, loc. cit. n. 89, p. 103.

95. See, e.g., ICRC, Annual Report (1983) p. 58 and Security Council Resolution 540.

96. See the stringent test laid down by the International Court of Justice in the North Sea Continental Shelf cases, ICJ Rep. 1969 p. 3 at para. 71, and the more recent discussion of this question in Nicaragua v. United States, ICJ Rep. 1986 p. 3 at p. 97 et seq. See also Meron, T., ‘The Geneva Conventions as Customary Law’, 81 AJIL (1987) p. 348.CrossRefGoogle Scholar

97. Protocol I, Art. 54(4).

98. The United States' Naval Commander's Handbook, issued after the United States announced that it would not ratify Protocol I, proceeds on the assumption that reprisals against an enemy's civilian population (other than those protected by the Fourth Convention) are not prohibited by customary international law.

99. Vienna Convention on the Law of Treaties, 1969, Art. 19.

100. 6 CDDH/SR. 41 Annex, p. 187.

101. Kalshoven, loc. cit. n. 66, p. 41. See also Hampson, loc. tit. n. 24, pp. 832–835.

102. 9 CDDH Official Records 73.

103. Italy, however, made the following declaration on ratification:

‘Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent further violations.’ (26 Int. Rev. of the Red Cross (1986) p. 114).

104. CDDH/SR. 42, para. 32.

105. Loc cit. n. 66, p. 65.

106. Kalshoven, op. cit. n. 1, pp. 178–184.

107. Bowett, loc. cit. n. 9.

108. Pictet, op. cit. n. 86, p. 39.

109. See Cassese, A., ‘The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’, 30 ICLQ (1981) p. 416.CrossRefGoogle Scholar

110. See Greenwood, loc. cit. n. 89.

111. ICRC Commentary — Protocols, op. cit. n. 8, at pp. 1372 and 1374.