FACULTY OF LAW
2014/2015
Subject: Thesis (Final) Draft
A thesis submitted in a partial fulfillment of academic requirements for the award of a Master Degree in International and European Law and the Title of Master of Laws (LLM)
By,
Protogène DUSABE
Supervisor: Prof H.G. van der Wilt
Amsterdam, 26 June 2015
The Critical Analysis on the ‘Belligerent Reprisals’ as Means
of Enforcement of International Humanitarian Law:
Inconsistency between International Humanitarian Law and
International Criminal Law and Legitimacy Issues
DECLARATION
I, DUSABE Protogène, here-by declare that, this research work entitled “The Critical Analysis on the ‘Belligerent Reprisals’ as Means of Enforcement of International Humanitarian Law: Inconsistency between International Humanitarian Law and International Criminal Law and Legitimacy Issues” is to the best of my knowledge and belief original, apart from where acknowledged in the text, and has not previously been submitted in any institution for the award of a Degree or Diploma.
DUSABE Protogène
DEDICATION
To The Almighty God;
To our spouse Kayitesi M. Assumpta; To our daughters Glenda and Ingrid;
To our deceased father; To our much-loved mother;
ACKNOWLEDGEMENTS
This thesis is an achievement that leaves me highly indebted to The Almighty God for his blessings throughout my life, as well as to many individuals and institutions for their moral and financial support; and I hereby extend to them my opportune appreciation.
I wish to express my deepest thanks to Prof. H.G.van der Wilt for having accepted the idea of this thesis and for his learned guidance. I wholeheartedly thank the Governments of Rwanda and The Netherlands for their support throughout my study period. My most sincere thanks are due to ‘Universiteit van Amsterdam (UvA)’for not only having ensured adequate knowledge in the Faculty of Law, but most importantly for the Amsterdam Merit Scholarship that greatly contributed towards my academic cost. Too, I would like to thank my family whose continuous support and encouragement was vital. My deep appreciation goes to my learned friends in the International and European Law program 2014/2015, more particularly those in Public International Law track with whom I used to exchange ideas in many discussions. Also, worth acknowledgement is due to the socialization geared by the continuous friendship with Y. Foliant, A. Marvin, Mees van Ojik, A. Jonkers, A. Haalebos and H. Valentijn for their invaluable friendship in Amsterdam. I am proud of that comradeship.
All of you thank you ever so much!
P. DUSABE June 2015
LIST OF ACRONYMS AND ABBREVIATIONS
§ Paragraph
AJIL American Journal of International Law
AP Additional Protocol
ASIL American Society of International Law B.O. Bulletin Officiel
CCW (UN) 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
CUP Cambridge University Press
Doc. Document
Ed. Edition
e.g. Exampli gratia (For example)
EJIL European Journal of International Law
et al. et alii (and others)
et seq. Et Sequens [And the following (pages)]
GC Geneva Conventions
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the Former Yugoslavia ICTR International Criminal Tribunal for Rwanda
Ibid. (Short of Ibidem) In the same place (as before)
IHL International Humanitarian Law
ILC International Law Commission
IRRC International Review of the Red Cross JICJ Journal of International Criminal Justice Law & Contemp. Probs Law and Contemporary Problems
LOAC Law of Armed Conflict
LWT Law Reports of Trials of War Criminals Mich.L.R. Michigan Law Review
Mil.L.Rev. Military Law Review
n. Note (footnote)
N.J. New Jersey
N.Y. New York
OUP Oxford University Press
p./pp. Page/Pages
PoW Prisoner(s) of War
Res. Resolution
RSK Republic of Serbia Krajina
UK United Kingdom
UN United Nations
UNGA United Nations General Assembly
UNRIAA United Nations Reports of International Arbitral Awards
UNSC United Nations Security Council
UNTS United Nations Treaty Series
USA United States of America
viz. Videlicet (Namely)
VCLT Vienna Convention on the Law of Treaties (1969)
Vol. Volume
Table of International Instruments
26 October 1945 Charter of the United Nations, 26 October 1945, 1 UNTS XVI
17 July 1998 Rome Statute of the International Criminal Court as amended by the Resolutions adopted by the Review Conference in June 2010 concerning article 8 (Res 5) and the crime of aggression (Res 6) (2187 UNTS 3)
12 August 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I)
12 August 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II)
12 August 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War (GC III) 12 August 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of
War (GC IV)
22 May 1969 The Vienna Convention on the Law of Treaties (VCLT) 1155 UNTS 331
8 June 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I)
14 may 1954 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention
2 December 1983 The Protocol (II) on the prohibitions or restrictions on the use of mines, booby-traps and other devices as amended on 03 May 1996 (Protocol II to 1980 CCW) 10 October 1980 United Nations 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 as amended on 21-12-2001, 1342 UNTS 137
27 July 1929 Geneva Convention relative to the Treatment of Prisoners of War
8 August 1945 London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal
18 October 1907 The Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land 9 September 1880 The Laws of War on Land, Manual published by the Institute of International
Law (Oxford Manual)
24 April 1863 General Orders, No. 100: Instructions for the Government of Armies of the United States in the Field (Lieber Code)
Table of Judgments
Nuremberg Trials
Law Reports of Trials of War Criminals (LWT), Selected and prepared by the United Nations War Crimes
Commission, Vols. IV, VIII, XII, s. (London: His Majesty’s Stationery Office, 1947-1949) [via online
http://www.loc.gov, accessed April-May 2015]:
The German High Command Trial, United States v. Wilhelm Von Leeb and Thirteen Others, United
States Military Tribunal, Nuremberg, Case No. 72, Judgment of 30th December, 1947-28th October, 1948, Vol. XII, 1-127
The Hostage Case Trial, United States of America v. Wilhelm List et al., Judgment, 19 February 1948,
Case No. 47, Vol. VIII
The Dostler case, Trial of Gen. Anton Dostler (United States Military Commission, Rome, 8th -12th October, 1945), Case No. 2, Vol. I
The Einsatzgruppen Case, , USA v Otto Ohlendorf et al., Military Tribunal II , Case No.9, Vol. IV,
Nuernberg, October 1946– April 1949
International Court of Justice
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Judgment, 27 June 1986, Merits, ICJ Reports 1986. [Via Online www.icj-cij.org, accessed 26-03-2015]
International Criminal Tribunal for the Former Yugoslavia
ICTY, Prosecutor v. Milan Martić, Case No. IT-95-11, Appeals Chamber Judgment, 08.08-2008 ICTY, Prosecutor v. M. Martic, Case No. IT-95-11, Trial Chamber 2 Judgment,12-06-2007
ICTY, Prosecutor v. Kupreškić et al., Case No. IT-95-16, Appeals Chamber Judgment, 23-10-2001 ICTY, Prosecutor v. Kupreškić et al., Case No. IT-95-16, Trial Chamber Judgment, 14-01-2000 ICTY, A. Furundžija Case, ICTY, Case No.: IT-95-17/1, Trial Chamber Judgment, 10-12-1998 The International Arbitration Tribunal
The Portuguese Colonies Case (Naulilaa incident), Portugal v. Germany (31 July 1928) 2 UNRIAA 1011-1033 (2006)
FOREWORDS
1. “…for honor is a recognition of superiority; but the man who endures such an injury shows that
in a superior degree he possesses the virtue of long-suffering , and thus rather increases his honor than diminishes it…………..that it is characteristic of a small soul not to be able to bear an
insult”
- Stephen C. Neff (Ed. & Annoted), Hugo Grotius on the Law of War and Peace (CUP, 2012), at 86.
2. “Revenge is the most worthless weapon in the world. It ruins the avenger while more firmly
confirming the enemy in his wrong. It initiates an endless flight down the bottomless stairway of rancor, reprisals, and ruthless retaliation.”
ABSTRACT
The thesis seeks to analyze the reason behind the gap between IHL and international criminal law with respect to the traditional and controversial mechanism of enforcing the laws of war: "Belligerent reprisals." Traditionally, the doctrine of belligerent reprisals was the only available and effective mechanism of enforcing the laws of war. In 20th century, the need to restrict to only military target the so-called evil of wars against humanity arose and the 1949 Geneva Conventions codified important restrictions that were extended in their 1977 AP I.
However, the narrow scope of reprisals resulting from 1974-1977 Conferences has not gained support from major powers of the West. Consequently, some states claim that the prohibition of reprisals against civilians is not part of customary international law and there is a possibility to target enemy civilians despite the requirement of conformity in all cases to the laws of humanity and morality. This decentralized coercive order through the primitive self-help measures shows
that the international law is in statu nascendi.
Actually, the place of reprisals under the IHL as means of enforcement has increasingly been interpreted differently in modern eye of humanitarian law by international criminal law. The latter law has been growing towards the rejection of defenses of such an inhumane practice of enforcing rules of humanity. The thesis examines reasons behind that inconsistency. The research challenges the enforcement of the humanitarian law by way of the practice intrinsically unlawful and which contravenes the raison-d’être of the humanitarian law. The ultimate aim of the study is to analyze the inappositeness of reprisals as means of enforcing IHL in the world of today. Their questionable efficacy and subsidiarity requirement to which they are subjected, as well as their inhumane character prove the reason to dismiss reprisals which characterize the society lacking a centralized coercive order.
TABLE OF CONTENTS
DECLARATION... i
DEDICATION... ii
ACKNOWLEDGEMENTS ... iii
LIST OF ACRONYMS AND ABBREVIATIONS ... iv
Table of International Instruments ... vi
Table of Judgments ... vii
FOREWORDS ... viii
ABSTRACT ... ix
TABLE OF CONTENTS ... x
GENERAL INTRODUCTION: Research Design ... 1
I. Introduction ... 1
II. The Problem Statement ... 1
III. Research questions ... 2
IV. Hypotheses ... 3
V. The connection between the problem statement and the research sub-questions ... 4
VI. Research Objective ... 4
VII. Research Methodology ... 4
VIII. The scope of the research study ... 5
IX. Provisional Outline ... 5
Chapter One: BELLIGERENT REPRISALS: A General Understanding on Forcible Self-Help Measures of States under International Law ... 6
1.0. Introduction ... 6
1.1. Reprisals ... 6
B. Historical background of ‘reprisals’ ... 8
C. Conditions to resort to reprisals ... 10
1.2. (National) Self-Defence ... 12
A. General ... 12
B. The Legal criteria for the invocation of the right of (national) self-defence ... 13
C. Self-defense Criteria: Immediacy, Necessity and Proportionality ... 14
D. Modalities of Self-defence ... 15
(a) On-the-spot reaction ... 15
(b) Defensive armed reprisal ... 15
(c) War ... 16
1.3. Conclusion ... 17
Chapter II: INCONSISTENCY BETWEEN IHL AND ICL IN THE CONTEXT OF BELLIGERENT REPRISALS ... 18
2.1. General ... 18
2.2. The Scope of Reprisals Under the Modern LOAC ... 18
A. Duty of States to respect and ensure respect of IHL ... 19
B. Prohibitions of belligerent reprisals under IHL ... 20
1. Prohibitions under the 1949 GCs ... 21
2. Prohibitions of reprisals under 1977 AP (I) ... 21
3. Prohibitions under the Protocol II to the 1980 CCW ... 22
2.3. ICL and The Doctrine of Belligerent Reprisals ... 22
A. Justification ... 23
B. Defences of Reprisals in Criminal Trials ... 24
1. WWII Criminals’ Trials ... 24
a. The Germany High Command Trial ... 25
2. Defence of reprisals before the ICTY ... 26
C. The Rome Statute and reprisals ... 27
2.4. Effects of Reprisals on LOAC ... 29
2.5. Conclusion ... 29
Chapter III: BELLIGERENT REPRISALS AS MEANS OF ENFORCEMENT OF IHL IN THE WORLD OF TODAY ... 31
3.1. General ... 31
3.2. Means of Law Enforcement ... 31
A. Reprisals and the principle of subsidiarity ... 32
B. Criminal proceedings ... 33
C. Other Means of enforcement ... 34
3.3. Inappositeness of Belligerent Reprisals ... 35
A. Uncertain efficacy of reprisals ... 35
1. Reprisals leading to reprisals-series ... 35
2. Affecting innocent people ... 37
B. Illegitimacy and the growing unpopularity of reprisals ... 38
3.4. Conclusion ... 38
GENERAL CONCLUSION ... 39
GENERAL INTRODUCTION: Research Design
I. Introduction
1. Under international law, a ‘Belligerent reprisal’, despite the unlawfulness of the authors’ conduct(s) or an act(s) itself, because it violates the identical or another norm of international law,1 is not prohibited when used in reaction to unlawful acts of an opponent,2 and not directed to protected persons and proper ties under the law of armed conflicts.3 These prima facie unlawful measures apply coercion with a view to bring about the change to the opponent’s unlawful conduct, and their ultimate aim is the enforcement of the humanitarian law.
2. The present research study seeks to make a critical analysis on ‘Belligerent reprisal’ as means of enforcing the international humanitarian law. By so doing, not only the effectiveness of reprisals in today’s times will be assessed, but also their illegitimacy as well as the gap between international humanitarian law and international criminal law in the context of reprisals will be made.
II. The Problem Statement
3. It is morally controversial for one to justify the violation of the law on the plea of compelling the other (adversary) to comply with the same law. As underlined by F. Kalshoven, in his famous treatise full of humane aspirations of international law, “It is perplexing to go in using inhumanity as a way of enforcing IHL whose basis is the interests of humanity.”4 In fact, the reprisals are not formally prohibited, for instance, as regards methods and means of warfare.5
1 F. Kalshoven (ed.), Belligerent Reprisals, Martinus Nijhoff Publishers 2005, Leiden, (2nd ed., vol. 11), p. 33. 2 J. M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian law (vol. I: Rules (Rule No. 145) (Cambridge University Press, ICRC 2005) [hereinafter ICRC Study], p. 513.
3 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 [GC] (I)], art. 46; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 [GC II], art. 47; Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949 [GC III], art. 13(3); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949 [GC (IV)], art. 33 (3); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977[Hereinafter AP I], arts. 20, 51-56. 4 F. Kalshoven, n. 2, p. XVII.
5 F. Kalshoven and L. Zegveld, Constraints on the waging of war, (Geneva , ICRC 2001), p. 144, cited in E. van Sliedregt, Individual Criminal Responsibility in International Law (OUP, London, 2012), p. 261.
And it is regrettably uncertain as to how the core IHL principles of humanity will be observed, despite the aforesaid prohibitions under the modern humanitarian law6 and strict conditions subjected to ‘belligerent reprisals’.7
The same concern is due to some states’ reservations to 1949 Geneva Conventions (GCs) and their Protocols which presume the likelihood to resort to reprisals in kind taken in most extreme situations.8
4. Though, reprisals are not totally banned under IHL, their legitimacy is still questionable since, nowadays, there are other available mechanisms to enforce the LOAC. Again, the ICL did not explicitly include the defences of reprisals to preclude the criminal responsibility. Therefore, the same gap between the two branches of public international law, which leads to different conclusions, ushered the researcher to assess it, in order to come up with a conclusion answering today’s reality.
III. Research questions
5. From the above problematic, some questions and sub-questions arose. The main questions are the following:
a. Are reprisals legitimate means of enforcing the modern international humanitarian law? b. How are reprisals affecting the international law?
Sub-questions
a. Why have ‘reprisals’ become unpopular?
b. Why is there inconsistency between ICL and IHL?
6 J. M. Henckaerts and L. Doswald-Beck (eds.), Above n. 3.
7 Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, CUP 2010, Cambridge, (2nd ed.), pp. 254-6. Those conditions are: (i) they are a reaction to prior serious violation of IHL; (ii) measure of last resort; (iii) be proportionate; (iv) decided at the highest level of the government; (v) immediate cessation upon compliance by the adversary.
8 UK reservation to the 1977 AP I: “If any adverse party makes serious and deliberate attacks against the
civilian population or civilian objects, the UK will regard itself entitled to take measures otherwise prohibited to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government.”
IV. Hypotheses
6. According to the 1969 Vienna Convention on the Law of Treaties, the principle of reciprocity does not apply “to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.”9 Besides, while IHL allows its violation at the expense of its enforcement by reprisals, the conceptualization of the defence of reprisals is lacking under ICL. The international criminal law is developing towards the ban of such practice as means contravening its role of enforcing the humanitarian law. In the most recent case-laws, where reprisals were raised to exclude the criminal liability, the ICTY Trial Chamber did not support the practice of reprisals affecting the civilians and civilian population;10 and reciprocity was rejected in violations of LOAC.11
7. Though, on one hand it might be true to argue that reprisals traditionally used to be effective means to enforce IHL due to lack of alternative and effective mechanisms to enforce the law in the past,12 or when a party to a conflict knows that the opponent has superior means that can be used by way of reprisal,13 their effectiveness remains doubtful since it lies in the mere hope of subjugating the adversary to the respect of the law and the most likely counter-reprisals whose results are further escalations of the conflict, on the other. In fact, some resolutions of the UNSC and UNGA,14 the commentaries of the International Law Commission,15 and the scholarly writings prove the will to prohibit forcible reprisals.16
9 Vienna Convention on the Law of Treaties (22 May 1969), 1155 UNTS 331, art. 60 (5).
10 ICTY, Judgment of 14-01-2000, Case No. IT-95-16-T (Prosecutor v Kupreškic et al.) [Hereinafter
Kupreškic et al. Case], §516-36.
11 Ibid., § 517. 12 See Below n.124.
13 This may have an psychological effect on the party which would endeavor to resort to reprisals.
14 See S. Darcy, ‘Retaliation and Reprisals’, in M. Weller (ed.), The Oxford Handbook of The Use of Force in
International Law, (OUP, 2015), p. 880; UNGA Res 2625 (XXV), 24 October 1970 [Adopted on a Report from the Sixth Committee (A/8082)] A/RES/25/2625, §1(6). According to the resolution: “States have a duty to refrain from acts of reprisal involving the use of force” [Online]; UNSC Res. 188 [UN Doc S/5650 (1964)]. This resolution relates to a complaint by Yemen regarding a British air attack on Yemeni territory, the Security Council declared that it ‘condemns armed reprisals as incompatible with the purposes and principles of the United Nations’.
15 See Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) Commentary on article 22 of Draft Articles on the State Responsibility, at 77. The term ‘Reprisal’ as a ‘defence’ has not been expressly included the ILC Draft Codes because of its association with the law of belligerent reprisals involving the use of force.
16 O. Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law, Hart Publishing Ltd. 2010, Oxford, pp. 234–236; R. Barsotti, ‘Armed Reprisals’, in A. Cassese (ed.), The Current Legal Regulation of the Use of Force, Martinus Nijhoff Publishers, Dordrecht 1986, pp. 79-110, at 79.
V. The connection between the problem statement and the research sub-questions
8. Seeing the advancement of technology and available solutions to better enforce IHL, the study’s problem statement is about the legitimacy of ‘belligerent reprisals’ in the present-days’ conflicts. In this vein, the sub-questions are useful to better understand the reason behind the unpopularity of ‘reprisals’ in the world of today and to analyze the reason behind the existing gap between international criminal law (ICL) and international humanitarian law (IHL) as regard reprisals.
VI. Research Objective
9. The present study provides arguments to find out what is right: a matter of perspective. Seeing the controversy posed by ‘reprisals’, this research study aims at assessing their legitimacy in present-days’ conflicts and those in days to come. Indeed, it was deemed pivotal to analyze not only the possible reason(s) behind the inconsistencies between international criminal law and its major source, the international humanitarian law, with regard to reprisals, but also their growing unpopularity among the international community of States. The result of the study will eventually give rise to comments of other scholarly works, thus contributing to the fair and effective enforcement of the LOAC to suit today’s realities.
VII. Research Methodology
10. The choice of appropriate techniques and methods is useful to conduct a reliable research. Therefore, it has been of central importance to resort to different techniques and methods. In the research process of the present thesis, a documentary technique was used to get a doctrinal contribution to the raised problematic viz. the literature review of textbooks, case-laws and some international law journals relating to the concept of ‘belligerent reprisal’.
11. In addition, the descriptive and analytical methods were also useful. The descriptive method was used to come up with the today’s reality on ‘belligerent reprisals’ as they were being opposed with other mechanisms of enforcing IHL. The analytical method, on the other hand, facilitated to use the available facts or information, and analyze them to make a critical evaluation of the material and practice.
VIII. The scope of the research study
12. This study is part of public international law, more particularly the combination of international humanitarian law and international criminal law. The study analyzes the gap between the aforesaid branches of law in the context of belligerent reprisals and the growing unpopularity of reprisals, thus challenging their legitimacy as means of enforcing the humanitarian law. Indeed the concept of ‘reprisal’ takes a different description depending on the point in time when it is assessed. Reprisals resorted to during peacetime are called peacetime or armed reprisals and taken by one State against another in response to a prior violation of international law by the latter.17 And reprisals taken during an ongoing armed conflict situation are termed “Belligerent reprisals”.18
The present research merely confines its analysis to the latter.
IX. Provisional Outline
13. Apart from the general introduction and conclusion, the present thesis comprises three chapters. The first chapter sifts on the general consideration on reprisals by differentiating the latter from the concept of ‘self-defence’, another form of self-help measures used by States under international law. Seeing the gap between IHL and ICL as regards the conceptualization of reprisals, the second chapter delves into the gap between ICL and IHL in the context of reprisals as well as the reason behind the same inconsistency.
14. Actually, the ‘belligerent reprisals’ do not seem to replace the criminal justice or other modes of disputes settlement, but to justify the illegality on one hand, and ultimately to induce the enforcement of law on the other. From this perspective, a critical analysis on the reprisals as means of enforcing the current IHL is made in the third chapter. Moreover, a sub-question as to why reprisals eventually became unpopular and other means of sanctions, as well as the reprisals’ connection to legitimacy are analyzed in the same chapter to confirm the hypothesis regarding the legitimate means of enforcing a law which correspond to the current social needs. Finally, a conclusion justifies the required changes to adequately ensure ultimate and most suitable enforcement of IHL: the absolute ban of reprisals.
17 Y. Dinstein, War, Aggression and Self-Defence, CUP 1994 (2nd ed.), pp. 215-226. 18 F. Kalshoven, n. 2.
Chapter One: BELLIGERENT REPRISALS: A General Understanding on Forcible Self-Help Measures of States under International Law
1.0. Introduction
15. Under international law, it is accepted that international law may be enforced by way of the self-help measures of the affected or injured State(s). Until the beginning of the twentieth (20th) century, States could rely on use of military force not only to settle their differences with other States and pursue their interests, but also to enforce their rights.19 The doctrine of reprisals, also dubbed by scholars as ‘forcible self-help’ measures,20
taken to induce compliance with international obligations and the inherent right of national self-defence are both forms of forcible ‘self-help’ measures taken by States.21
16. The present chapter seeks to present an overview on the (belligerent) reprisal. But, because the latter concept is not the only coercive means of States under international law, it is deemed important to show its difference with the concept of self-defence, thus shedding more light on the former concept. So, Section One goes through belligerent reprisals whereas the concept of self-defence is discussed in Section II before making a concluding remark.
1.1. Reprisals
17. The reciprocal character of classical international law and of the law of armed conflicts in particular, is manifested in the doctrine of reprisals.22 While armed reprisals or measures of counter-force, short-of-war are prohibited, unless they have a defensive purpose (see Chap. 1, Sect. 2), belligerent reprisals are resorted to by belligerents in the midst of the ongoing hostilities.23 This section gives a descriptive definition of the concept of ‘reprisals’, its brief historical background and the conditions under which they are allowed.
19 A. Cassese, International Law, OUP 2001, p. 229. 20 R. Barsotti, n. 17.
21 T. D. Gill, ‘Temporal Dimension of Self-defence: Anticipation, Pre-emption, Prevention and Immediacy’ [Chap. 5], in M. N. Schmitt, J. Pejic (eds.), International Law And Armed Conflict, Exploring the Faultlines: Essays in Honour of Yoram Dinstein, Martinus Nijhoff Publishers 2007, pp. 113-155, at 152.
22 T. Meron, The Humanization of International Law, Martinus Nijhoff Publishers 2006, The Hague Academy of International Law, (Vol. 3), pp. 11-12.
A. Definition
18. The scholarly writings define the concept of ‘reprisal’ in international armed conflict as an act by one belligerent, otherwise in violation of one or more rules of the law of armed conflict, in response to an unlawful act of war by the adverse party, and carried out to compel that other belligerent to stop unlawful acts of war and to comply henceforth with its obligations under the laws of war.24 F. Kalshoven (2005), has defined ‘reprisals’ taking into consideration of other reprisals occurring during peacetime and taken by not only states but also other entities enjoying a degree of international personality.25
19. The classic definition of reprisals in international law contexts is found in the Naulilaa case, in which the international arbitration tribunal stated:
“Reprisals are an act of self-help on the part of the injured states, responding after an unsatisfied demand to an act contrary to international law on the part of the offending State . . . . They would be illegal if a previous act contrary to international law had not furnished the reason for them. They aim to impose on the offending State reparation for the offense or the return to legality in avoidance of new offenses.”26
20. In the afore-mentioned dispute (Naulilaa case), the October 1914 military raid carried out by Germany which sank the Portuguese ship and destroyed the property it was carrying, in response to the prior mistaken killing of three German nationals, could not be qualified as the ‘legitimate reprisals’ because the killing was in a manner that did not violate international law. The International Arbitral Tribunal rejected the German claim on all three grounds or prior conditions under which the Germany’s six (6) reprisals would be subjected in order to gain legitimacy. Those grounds are: (i) a previous act by the other party that violated international law; (ii) an unsatisfied prior demand for reparation or compliance with the violated international law; and (iii) reprisal to be commensurate to the offence.27 These and other further conditions required to be fulfilled before resorting to reprisals will be discussed in a separate paragraph.
24 Y. Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, CUP 2004, p. 220; F. Kalshoven and L. Zegveld (eds.), Constraints on the Waging of war: An Introduction to International Humanitarian Law, ICRC, Geneva 2001(3rd ed.), p. 76; T. Meron, Above n. 23; S. Darcy, ‘Retaliation and Reprisals’, n. 15, p. 879.
25 F. Kalshoven, n. 2, p. 33.
26 Portuguese–Germany Mixed Arbitral Tribunal, Portuguese Colonies Case [Hereinafter referred to as
Naulilaa incident], Portugal v. Germany (UNRIAA, vol. II, p. 1011-1033, Lausanne, 31-07-1928), pp.1025-1026.
B. Historical background of ‘reprisals’
22. The practice of reprisals dates from the period of Christian Just War period when States had the right to punish other states and most violence was inspired by what St Augustine called libido dominandi or lust for domination.28 Traditionally, the concept of “reprisal” was used to cover otherwise unlawful action, including forcible action, taken by way of self-help in response to a breach.29 They emerged as private reprisals in the context of international relations, and they could be taken against individual persons (foreigners) by or on behalf of private persons to claim and collect external debts by confiscating goods of foreign debtor because of the obvious impracticability of collecting the debt by way of normal means including the enforcement of a legal title.30
23. In fact, the ‘self-help’ practice of States has been a result of the lack of a centralized body to enforce the legitimate claims in the international community,31 like it was the case, for instance during the Roman Empire, such as protection of the national sovereignty. And “redressing an injury” has been one of the permissible causes of war.32
Regrettably, the revenge was a motive for attacks and the brutality in wars was characterized by killing the entire population or enemies, both combatants and non-combatants.33
24. The doctrine of ‘reprisals’ continued to raise concern in the laws of war. In the 1880 conference, the Institute of International Law resolutely discussed reprisals in its “Oxford Manual on the Laws of Land Warfare”, and stated that they (reprisals) would remain necessary to recall the enemy to respect the law, but on condition that the persons who committed war
28 Augustine, Concerning the city of God Against the Pagans 556-558 (H. Bettenson trans., Penguin Books, 1972, Harmondsworth, England).
29 E. de Vattel, The Law of Nations; or the Principles of Natural Law, (1758) (Washington D.C., Carnegie Institution) vol. II, chap. XVIII, §342, p. 283.
30 F. Kalshoven, n. 2, at 1; W. Spiegel (Hans), ‘Origin and Development of Denial of Justice’, in A. Media (ed.),
International in the Twentieth Century (ASIL, 1969), pp. 518-536, at 521 et seq.
31 F. Kalshoven, n. 2, p. 3.
32 A.C. Arend and R. J. Beck, International Law and the use of Force: Beyond the UN Charter Paradigm, Routledge 1993, N.Y., p. 13.
33 R. Stacey, ‘The Age of Chivalry’, in M. Howard et al., The Laws of War; Constraints on Warfare in the Western
crimes were not individually punished in accordance with penal provisions,34 and reiterated that the reprisal action “must conform in all cases to the laws of humanity and morals”.35
25. Like the Oxford Conference, the Brussels’ Conference, although it had declined to discuss the topic on reprisals, reiterated that belligerents do not have unlimited power even to injure the enemy,36 neither do they have to murder individuals belonging to the hostile nation as well as the PoWs.37 Later on, the subject of reprisals was raised in the Hague Peace Conferences of 1899 and 1907 but did not find its way in Hague Rules.38
26. Though the scholarly writings from other States did not support the reprisals during WWI, reprisals were frequent especially on the part of Germans with an open support of their scholars who maintained the position that reprisals were not subject to any limitations.39 At the beginning of the 20th century, Oppenheim, the German jurist brought into the open the recourse to reprisals as a way of enforcing the law in reaction to a prior violation:
“... If members of the armed forces commit violations by order of their Government, they are not war criminals and cannot be punished by the enemy; the latter can however, resort to reprisals……”40
27. Later on in 1940s, the formulation of the UN Charter was inspired by the principle of the (general) prohibition on the use of force in the international relations between States,41 and armed reprisals short-of-war could be excluded,42 and replaced by the ‘countermeasures’ or
34 Oxford Manual), art. 84. See also D. Schindler and J. Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher 1988, pp. 36-48.
35 Ibid., art. 86 (3). 36 Ibid., art. 4.
37 Project of an International Declaration concerning the Laws and Customs of War (Brussels Conference of 1874, Brussels, 27.08.1874), art. 12, 13 (b) (c). see also D. Schindler and J. Toman, n. 35, pp. 22-34.
38 The Hague Peace Conferences of 1899 and 1907 (The Hague, Netherlands). These are a series of negotiated international treaties and declarations which never made any reference to belligerent reprisals but recalled the respect for the laws of war (e.g. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907 (Entry into force 26/01/1910; 187 CTS 227; 1 Bevans 631);S. C. Neff, Justice in Blue and Gray: A Legal History of Civil War, Harvard University Press 2010, p. 64.
39 K. Strupp, Élément du Droit International Public 344 (2nd ed., 1930), cited in S. E. Nahlik, Belligerent Reprisals in the Light of the Diplomatic Conference on Humanitarian Law Geneva, 1974-1977 (42 Law & Contemp. Probs. 2, 1978), p. 39.
40 L. F. L. Oppenheim, International Law (vol. 2, London, 1906), at 264-5 cited in Y. Dinstein, The Defence of
‘Obedience to Superior Orders’ in International Law, Sijthoff 1965, Leiden, p. 38.
41 UN Charter, art. 2 (4).
‘non-armed reprisals’ and the doctrine of ‘belligerent reprisals’ during situations of the international armed conflicts (IAC) when the law of armed conflict is violated was not totally banned under IHL.43 More recently, the term “reprisals” has been taken as equivalent to ‘belligerent reprisals’ or limited to action taken in time of international armed conflict.44 It is seemingly the reason behind the introduction of the term ‘countermeasure’ to replace the term ‘reprisal’ which is strongly associated with ‘armed reprisals’ which are illegal during peacetime by virtue of the general prohibition on the use or threat of force in international relations of States under the article 2 (4) of the UN Charter. All in all, the right to take a reprisal action is subject to a number of conditions discussed in the next paragraph.
C. Conditions to resort to reprisals
28. The international community of states restricted the extent to which those laws may be breached by way of belligerent reprisal; seemingly to increase the protection of the protected group viz. civilians and those who are no longer taking part in hostilities as well as their properties.45 Hence, reprisals are subject to five strict conditions:46
(i) the purpose of reprisals;
(ii) reprisal being a measure of last resort; (iii) proportionality;
(iv) decision to be taken at the highest level of government; and
(v) terminating reprisal as soon as the offending State(s) complies with its international obligation(s).
29. Firstly, ‘reprisals’ are illegal ab initio, but they are considered lawful in case they are taken in reaction to a prior serious violation of international law, and only for the purpose of inducing the adversary to comply with the law. In addition to a return to legality by the avoidance of further offences, the international arbitral tribunal, in the Naulilaa incident case, added "effecting reparation from the offending state for the offence” as a second object of a
43 Y. Dinstein (2004), n. 25.
44 ILC, Yearbook of the International Law Commission 2001, vol. II, Part Two (A/CN.4/SER.A/2001/Add.1), p. 128.
45 Reprisals against protected persons and property are expressly prohibited in all four Geneva Conventions of 1949 and in the Hague Convention of 1954 on Cultural Property.
reprisal.47 Nonetheless, it is open to further argumentations as to how the reparation of the injury can be made by way of reprisals. It stands to reason that in the situation of belligerent reprisals, the object of effecting reparation carries skepticism in itself.
30. Secondly, reprisals may only be carried out as a measure of last resort. This precondition implies the principle of subsidiarity. The reprisal action is not an automatic reaction following the injury, but the right to take a reprisal is only exercised when there are no other available means of enforcing the laws of war. Moreover, reprisal may only be resorted to after a warning is issued beforehand to the violator or offending party has remained unheeded.48 The notice must be a formal warning to the offending State of the reprisal action due to be carried out. Therefore, reprisals carried out in secret should be deemed illegitimate as they may not have deterrent effect.49 However, the requirement of “unsatisfactory demand” for reparation is not uniformly supported by State practice or scholarly writings, hence inappropriate in some situations.50 31. Thirdly, reprisal action must be commensurate to the violation it aims to stop. The proportionality is necessary to protect the subjective interests of the State (to which the reprisal is directed) against over-reaction.51 Though proportionality is a customary demand to legitimize the response to unlawful conduct, it is not easy to determine the standard by which the proportionality has to be measured. Above all, the ultimate aim of a belligerent reprisal is to bring the offending State back to the legal status quo ante.52 And it stands to reason that the damage and suffering inflicted on the adverse party should not exceed the level of damage and suffering resulting from its unlawful conduct. The proportionality principle plays a pivotal role to ensure the response to a violation of law is proportional to the violation thus making it clear to the party that violated the law that this is a so-called legal reprisal or lawful action. Under the law of belligerent reprisals, the proportionality is no longer measured by the immediate
47 Naulilaa Case, p. 1026.
48 Ibid., §203.
49 M. S. McDougal & F. P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of
International Coercion, Yale University Press 1967, New Haven, p. 689.
50 P. Malanćzuk, ‘Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission's Draft Articles on State Responsibility’, in M. Spinedi and B. Simma (eds.), United Nations Codification of State Responsibility, Oceana Publications 1987, N.Y., pp. 197-286, at 197 & 214.
51 E. Cannizzaro, ‘The Role of Proportionality in the Law of International Countermeasures, EJIL 12 (2001), p. 890.
52 K. Anderson, “Quick note on proportionality jus ad bellum and the law of belligerent reprisal” (Jul 26, 2006) [Online].
provocation, but by a State’s assessment of the underlying threat to avoid the culmination to a full conflict.53
32. Fourthly, the decision to engage in belligerent reprisals must be taken by a competent authority. The belligerent reprisal can only be resorted to with the authorization of the commander in chief,54 who is, in most cases, the supreme leader of the country but that might vary from country to country. Fifthly, and finally, the reprisal action must cease as soon as the adversary or the original violator complies with the law or in other words he has stopped violation of LOAC. Therefore, reprisals have a temporary character.
1.2. (National) Self-Defence
A. General
31. The concept of self-defence under international law refers to the lawful reaction of the injured State(s) to quash the unlawful behavior, which led to the injury, of another State. Dinstein, a famous scholar in his publications on the use of force under international law, defined the concept of ‘(national) self-defense’ as: “The right of a State to forcibly respond to an armed attack originating or controlled and directed from outside its territory against its territory, citizens, vessels, aircraft or military personnel stationed abroad, or which are situated in international sea or airspace.”55
32. B. Simma gave the gist of the armed attack:
“….State is bound to endure acts of force that do not reach the intensity of an armed attack, thus remaining devoid of any effective protection until the SC has taken remedial measures. … It cannot be overlooked that being caught in the ‘dilemma between security and justice,’ the UN Charter deliberately gives preference to the former.”56
53 Ibid.
54 S. Darcy, ‘What Future For Belligerent Reprisals?’, in H. Fischer & A. McDonald (eds.), Yearbook of
International Humanitarian Law – 2002, CUP 2011, p. 108.
55 Y. Dinstein, War, Aggression and Self-Defence, (4th ed., CUP, 2005), p. 175 et seq. cited by T. D. Gill, ‘Legal Basis of the right of self-defence under the U.N. Charter and Under Customary International Law’, in T. D. Gill and D. Fleck (eds.), The Handbook of International Law of Military Operations, OUP 2010, London, pp. 187– 198, at 187.
33. Unlike the belligerent reprisals, the right of States of self-defense carries a preventive or protective aspect in itself instead of being sanctions of law like the former concept. In addition, while reprisals are taken in response to prior violation of humanitarian law, the right of self-defense is exercised to what merely amounts to an ‘armed attack’ to legitimize the use of force.57 For the purpose of the present chapter, it is important to contextualize the concept of self-defence on the restrictive view of the UN Charter as a coercive measure taken after suffering a particular injury in order to differentiate it from ‘belligerent reprisal’, thus making the latter concept more explicit.
B. The Legal criteria for the invocation of the right of (national) self-defence
34. Under international law, there exist two bases in determining the legality and recourse to the right of national self-defence viz. the article 51 of the UN Charter and customary international law, concomitantly alluded to in the aforesaid provision of the Charter as a pre-existing customary international law; in the term "inherent right" of individual or collective self-defence, which is not impaired by the UN Charter in the event qualified as an ‘armed attack’.58
It stands to reason that an ‘armed attack’ activates the action in self-defence.
35. Though, when a State facing an ‘armed attack’ may exercise the right to defend itself by use of force against the unlawful conduct of the attacker till the Security Council (SC) is able to take action,59 the legitimacy of the action(s) in self-defense also depends, inter alia, on meeting the customary law demands of immediacy, necessity and proportionality,60 reasonably considered in response to force by counter-force.61 Besides, the application of those principles in the ‘armed attack takes into account a number of factors such as the scale of the force; the
57 ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) 1986, Merits, ICJ. Reports 1986, p. 14, at §176) [Online]. According to the court, ‘an ‘armed attack’ must be understood as including not merely action by regular armed forces across an international border’.
58 Ibid..
59 A. C. Arend and R. J. Beck (eds.), International Law and the Use of Force: Beyond the U.N. Charter Paradigm, Routledge 2014, p. 31.
60 T.D. Gill, ‘The Temporal Dimension of Self-Defence: Anticipation, Pre-Emption, Prevention and Immediacy ’, 11 J Conflict & Security Law 3 (2006), pp. 368-369.
61 K. W. Quigley, ‘A Framework for Evaluating the Legality of the United States Intervention in Nicaragua’, 17
NYUJILP 155, 180 (1984-5) cited in Y. Dinstein, War, Aggression and Self-Defence, CUP 2011 (5th ed.), p. 233; R. Ago, ‘Special Rapporteur to the International Law Commission’, Eighth Report on State Responsibility, (1980) ILC Yrbk, ii, I, 13, §120, UN Doc A/CN.4/318/ADD.5–7.
military nature of the attack; the identity of the attacker; the availability of alternatives; likelihood of outside assistance, etc.62
C. Self-defense Criteria: Immediacy, Necessity and Proportionality
36. The principles of necessity and proportionality to limit the scope of self-defence as well as the requirement of immediacy supplement the conditions set out under the jus ad bellum (under the UN Charter). While ‘necessity’ is generally taken to refer to the last resort to force, rather than to non-forcible measures, requirement of attack and foreseeability of the continuity of the attack, ‘proportionality’ assesses the magnitude of the force used.63
37. The immediacy means that there should not be an undue time-lag between the armed attack and reaction in self-defence,64 and has the connotation of imminence of the threat and a requirement for taking an action in self-defence within a short span of time subsequent to an attack in order to make a clear distinction between self-defence and reprisal. In fact, the immediacy serves as the dividing line between the use of force in self-defense and the armed reprisal or reprisal short-of-war which lacks a legal basis under modern international law.65 If the counter-attack does not occur with the reasonable time, it would instead amount to reprisal short-of-war.
38. Therefore, the boundaries between self-defence and armed reprisal remains blurring since immediacy does not serve as a requirement that the force in self-defence must immediately follow the suffered attack.66 This holds true since it might not be possible for the attacked State for various reasons including, but not limited to, the degree of preparedness including the battlefield area evaluation, threat evaluation and threat integration, all entailed in the operational planning process up to the deployment of the combat power, etc.
62 T. D. Gill, ‘Legal Basis of the right of self-defence under the U.N. Charter and Under Customary International Law’, in T. D. Gill and D. Fleck (eds.), The Handbook of International Law of Military Operations, OUP 2010, London, pp. 187–198, at 190.
63 Y. Dinstein (2011), n. 62, p. 232; E. Cannizzaro, ‘Contextualizing proportionality: jus ad bellum and jus in
bello in the Lebanese War’, 88 IRRC 864 (2006), p. 779; A. Cassese, International Law, OUP 2005, London (2nd ed.), p. 355.
64 Y. Dinstein (2011), n. 62; T. Gazzini, The Changing Rules on the Use of Force in International Law (Manchester University Press, 2005), at 143;
65 T. D. Gill, ‘Temporal Dimension of Self-defence: Anticipation, Pre-emption, Prevention and Immediacy’, in M. N. Schmitt & J. Pejic (eds.), International Law And Armed Conflict, Exploring the Faultlines: Essays in Honour of Yoram Dinstein, Martinus Nijhoff Publishers 2007, pp. 113-155, at 151.
D. Modalities of Self-defence
39. Dinstein has made distinction between three main modalities of self-defence viz. (i) On-the spot reaction; (ii) Defensive armed reprisals; and (iii) war.67
(a) On-the-spot reaction
40. This modality of self-defence consists of the situation of small-scale armed attack most-likely taking place on the borders of States or on High Sea waters where two States’ forces might collide. Dinstein believed that the concept of ‘On-the-spot reaction’ is more accurate than ‘unit self-defence’. The latter concept is, however, valid in the scholarly writings to denote the unit level expression of national self-defense of the State,68 and must be in response to an attack or an imminent attack.69 In this situation, the tactical military commander is the one assessing the customary demands of necessity and proportionality, and the latter criterion requires the force and counter-force to be similar in ‘scale and effects’.70
(b) Defensive armed reprisal
41. While reprisals short-of-war are unlawful, the argument of Y. Dinstein is controversial when he acknowledges the permissibility of defensive armed reprisals under the scope of article 51 of UN Charter. However, like ‘On-the-spot’ reaction, defensive armed reprisals are guided by the norms of jus in bello,71 and their legality falls within the scope of the jus ad bellum. While for some scholars the illegitimacy of ‘armed reprisals’ is assessed on the fact that they take place after the harm has already taken place and hence their purposes is punitive rather than defensive,72 Schachter could infer that: “whereas punitive armed reprisals are forbidden, ‘defensive
retaliation’ is justified when its prime motive is protective.”73
67 Y. Dinstein (2011), n. 62, p. 242 et seq.
68 F. R. B. Hosang (Hans), ‘Force Protection, Unit Self-Defence, and Extended self-Defence’, in T. D. Gill & D. Fleck, The Handbook of International Law of Military Operations, OUP 2010, London, pp. 415-427, p. 420. 69 D. Stephens, ‘Rules of Engagement and the Concept of Unit Self Defence’ 45 Naval Law review (1998), pp. 126-151, cited by F. R. B. Hosang (Hans), above n. 69.
70 T. Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice, CUP 2010, p. 181.
71 Y. Dinstein (2011), n. 62, p. 246.
72 D. W. Bowett, ‘Reprisal involving recourse to armed force’, 66 AJIL 1 (1972), pp. 1-36, at 3.
42. The same reasoning was supported by some legal scholars who justified the legitimacy of the armed reprisal when they are merely defensive under the realm of UN Charter.74 During the conduct of the defensive armed reprisals, the responding State hit a different target from the one(s) of the original armed attack,75 at the same time taking into account third party’s rights. Like in ‘On-the-spot reaction’, the proportionality in defensive armed reprisal seeks to approximate the unlawful force and lawful counter-force in ‘scale and effects’.76
43. Theoretically, coercive measures against a rogue State should not serve as a punishment. However, the inconsistency of States practices prove it practically different and it does not hold true for most, if not all, situations. For instance, the incident of November 11, 1966, in which an Israel border patrol vehicle ran over a land mine, and lost its three soldiers, led to a retaliatory action of Israeli Defence Force (IDF) into Jordanian territory that killed several civilians and some Jordanian soldiers and hundreds of houses destroyed by Israeli tanks, and followed by a mere condemnation of UNSC.77
(c) War
44. In case the attempt of an amicable settlement of the conflict is not reached, an isolated armed attack is followed by full-scale hostilities. States are not willing to be overrun for the sake of negotiating peaceful solutions. Thus, it becomes a necessity to resist the ongoing hostilities.78 As regards proportionality in the war of self-defense, it has to be assessed throughout the hostilities in the course of war,79 instead of the approximation in ‘scale and effects’ between the unlawful force and lawful counter-force in situations of ‘On-the-spot’ reaction and ‘defensive armed reprisals’.
74 Y. Dinstein, n. 64, p. 245; 75 Ibid.
76 T. Ruys, Above n. 71.
77 J. Quigley, The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War, CUP 2012, p. 9.
78 Y. Dinstein, (2005), n. 56, p. 237.
1.3. Conclusion
45. To wind up, it was argued that self-defence and belligerent reprisals are both coercive and self-help measures an affected State can take under international law. Reprisals resemble actions of self-defense in that they are meant to prevent illegalities of a belligerent State and ensure they are not repeated. In other words, reprisals and self-defence are forward-looking and non-retaliatory in intention. However, they differ in terms of their purposes and objectives.80 While ‘belligerent reprisal’ is a law enforcement measure,81 the self-defence is a lawful reaction to quash an unlawful armed attack and defeat it. In fact, the reprisal action consists of a violation of LOAC; and an action in self-defence should abide by the ius in bello.
46. Lastly, reprisals continued to be a part of laws of war with slight acceptance in the written law. During the pre-Charter period, the right to take a reprisal was principally accepted, but subject to customary and necessity to avoid escalation of hostilities. Traditionally, reprisals have been an important medium to enforce the law by unusual severity and their efficacy has been indisputable due to lack of alternative means of enforcing the law, but they might not be carried out as a revenge or punishment,82 and their scope during the post-WWII era is assessed in the next Chapter.
80 Y. Dinstein (2011), Above n. 62, p. 152. 81 T. Gazzini, n. 65, p. 163 et seq.
Chapter II: INCONSISTENCY BETWEEN IHL AND ICL IN THE CONTEXT OF BELLIGERENT REPRISALS
2.1. General
47. It is important to understand the complementarity of IHL and ICL, as subsets of public international law, from which an inference regarding their gap in the context of reprisals is drawn. While IHL protects the war victims, ICL punishes the acts, in violation of IHL obligations, amounting to international crimes. Under the IHL, some actions amounting to war crimes or crimes against humanity may not lead to any liability of the offending party as long as they are connected to an armed conflict.83 This way of undermining the values of humanitarian law might be seen in the doctrine of ‘belligerent reprisals’ or in other words violation of IHL serving as enforcement mechanism.
48. However, the defence of the aforesaid violations is not upheld by the current international criminal law as it will be seen later in section 3 of this chapter. The present chapter seeks to analyze the gap between these two branches of international law in the context of reprisals. Section I discusses the place of reprisals as a legal concept under the international humanitarian law. Secondly, the position of the international criminal law with regard to reprisals is looked at in Section 2. Thirdly, the effects of reprisals on IHL will be briefly discussed in the third section. Finally, the answer to the question regarding the possible reasons behind the gap between IHL and ICL, as far as the belligerent reprisals are concerned, is contained in the concluding remark.
2.2. The Scope of Reprisals Under the Modern LOAC
49. The practice describing the purpose of reprisals and conditions to which they are subjected refers to ongoing inter-States’ armed conflicts. So, the present Section does not cover the situation of a non-international armed conflict character whose parties do not have the right
to resort to belligerent reprisals,84 and the non-materialization of reprisals in NIAC situations was confirmed by the ICRC study of 2005.85 In order to understand the place of reprisals under IHL, it is important to discuss the States’ duty to respect IHL. The first paragraph covers the duty of the High contracting parties (States) to Geneva Conventions and their 1977 Additional Protocols to ensure the better compliance with their humanitarian obligations. The second paragraph summarizes the prohibitions of reprisals laid down in the 1949 Geneva Conventions, the 1977 Additional Protocol I and 1980 CCW.
A. Duty of States to respect and ensure respect of IHL
50. The duty to respect and ensure respect of IHL stems from the general principles of IHL to which the 1949 Geneva Conventions give specific expression.86 The respect for GCs is stipulated in article 1 common to the four Geneva Conventions, and it reads: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” The same wording of the said article was reiterated in 1977, referring to respect for the Protocol (I) Additional to the 1949 GCs.87
51. In its commentary on common Article 1 of the 1949 Geneva Conventions, the ICRC has reiterated that the duty to “ensure respect” is not limited to behavior by parties to a conflict, but includes the requirement that States do everything in their power to ensure that international humanitarian law is respected on the international plane.88 In fact, ensuring respect of the IHL carries the erga omnes obligations of the High Contracting parties to the 1949 Geneva Conventions and their 1977 Additional Protocols. Additionally, ensuring respect for IHL is a practice reflected in the inference drawn by the IHL customary rule 144 which reads that:
84 ICRC, Rule No. 148; See also UN General Assembly, Res.48/152(A/RES/48/152, 85th plenary meeting of 20 December 1993) and Res.49/207,(UNGA A/RES/49/207, 94th plenary meeting of 23 December 1994) on Situation of human rights in Afghanistan. In these resolutions, the UNGA strongly condemned measures of reprisals against civilians in Afghanistan.
85 ICRC Study, Above n. 3, p. 527. 86 ICJ, Nicaragua Case, §220.
87 AP I (1977), art. 1(1): «The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances». Article 1 AP I was adopted by 87 votes in favor, 1 against and 11 abstentions. 88 Y. Sandoz et al. (eds.), Commentary on the Additional protocols, ICRC 1987, Geneva, §45.
“States may not encourage violations of international humanitarian law by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of international humanitarian law.” (IHL Customary Rule 144).
52. It may be interpreted that “….do all in their power to ensure that IHL is respected universally” implies that an injured High Contracting party (due to prior violation of IHL rules) may, in return, take a reprisal action purposely to stop further violations of IHL and ensuring potential respect for it. However, the interpretation of the condition of taking reprisal action as a measure of last resort, when no other possibility is available, should not ignore that States must take into account the possibility of appealing to other States and international organizations to help put a stop to the violations.89 The 1977 Protocol Additional to four GCs (AP I) provides that:
“In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.”90
B. Prohibitions of belligerent reprisals under IHL
53. Under modern international humanitarian law, belligerent reprisals have been limited but
not completely outlawed.91 The purpose of such limitations is undoubtedly the protection of the
defined classes of persons and objects, as well as the environment;92 thus ensuring the respect of
the underlying principles of humanity. The prohibitions of belligerent reprisals are laid down in
the Four Geneva Conventions of 12 August 1949, the 1977 Protocol Additional to the 1949 Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (AP I), as well as the 1980 Mines Protocol (II) and its 1996 Amendment, attached to the 1980 Conventional Weapons Convention.
89 See also commentary to IHL Customary Rule 144, in J-M. Henckaerts and L. Doswald-Beck, Customary
International Humanitarian Law, CUP 2005, (Vol. I: Rules), p. 512.
90 AP I (1977), art. 89. The voting of this article, however, got a considerable abstention: adopted by 50 votes in favor, 3 against and 40 abstentions.
91 S. Darcy, ‘The Evolution of the Law of Belligerent Reprisals’, 175 Military Law Review (2003), pp. 184-251. All four GCs (1949) prohibit reprisals against, respectively, wounded combatants, shipwrecked survivors, PoW, and civilians, as well as certain buildings and property. The 1977 Protocol additional to 1949 GCs (AP I) extends the protection to cover historic monuments, works of art and places of worship [See 2.2.B].
92 S. Oeter, ‘Methods and means of combat’, in D. Fleck (ed.), The Handbook of International Humanitarian
