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Reprisals are measures of pressure that derogate from the normal rules of international law: they are carried out by a State in response to unlawful acts committed against it by another State and are intended to force that State to respect the law. Reprisals may also be carried out in response to an attack. The question of the legality of reprisals has been in debate since conventional (positive) international law—which includes the UN Charter—posited that States are prohibited from using force, except in case of individual or collective self-defense (Art. 51 of the UN Charter).
In times of conflict, reprisals are considered legal under certain conditions: they must be carried out in response to a previous attack, they must be proportionate to that attack, and they must be aimed only at combatants and military objectives.
Humanitarian law hence forbids all reprisals against civilian persons and objects protected by the 1949 Geneva Conventions and their 1977 Additional Protocols. These include wounded, sick, or shipwrecked persons; medical or religious personnel, units, transports, or material; prisoners of war; civilian persons or civilian objects; cultural property or places of worship; objects indispensable to the survival of the civilian population; the natural environment; works and installations containing dangerous forces; and buildings and material used for the protection of the civilian population (GCI Art. 46; GCII Art. 47; GCIII Art. 13; GCIV Art. 33; API Arts. 20 and 51–56).
It is important to distinguish between reprisals, acts of revenge, and retaliation. Acts of revenge are never authorized under international law, while retaliation and reprisals are foreseen by humanitarian law.
Measures of retaliation are acts by which a State responds to unfriendly, but lawful, acts by another State (for instance, reciprocal expulsion of diplomats).
Reprisals must always be proportionate to the attacks to which they are responding and must never aim at civilians or protected objects. If these conditions are not respected, then it is an act of revenge.
Conditions of Reprisals under Customary IHL
Under customary international humanitarian law, the use of reprisals is subjected to strict conditions. Those conditions are provided for in the study on the rules of customary international humanitarian law published by the ICRC in 2005.
- Rule 145: Where not prohibited by international law, belligerent reprisals are subject to stringent conditions in international armed conflicts.
- Rule 146: Belligerent reprisals against persons protected by the Geneva Conventions are prohibited in international armed conflicts.
- Rule 147: Reprisals against objects protected under the Geneva Conventions and Hague Convention for the Protection of Cultural Property are prohibited in international armed conflicts.
- Rule 148: Parties to non-international armed conflicts do not have the right to resort to belligerent reprisals. Other countermeasures against persons who do not or who have ceased to take a direct part in hostilities are prohibited.
In case of reprisals, military commanders have the duty to implement the precautionary measures foreseen by international law with regard to methods of warfare. Humanitarian law specifies the individual responsibility of each member of the armed forces with regard to such actions.
The ICTY considered that customary international law prohibits reprisals against civilian population and goods (ICTY Trial Chamber, Martic Case , 8 March 1996, paras. 15–17). This is due to the fact that humanitarian law is a law that protects individuals—as human beings—rather than States. Therefore, violations of humanitarian law by a party may not justify in return reprisals against a civilian population (ICTY Trial Chamber, Kupreskic Case , 17 January 2000, paras. 527–36).
For Additional Information: Kalshoven, Frits. Belligerent Reprisals . Leiden: Martinus Nijioff, 2005.
Nahlik, Stanislaw-Edward. “From Reprisals to Individual Penal Responsibility.” In Humanitarian Law of Armed Conflict: Challenges Ahead; Essays in Honor of Frits Kalshoven , edited by Astrid J. M. Delissen and Gerard J. Tanja, 165–76. The Hague: Martinus Nijhoff, 1991.
Obradovic, Konstantion. “Prohibition of Reprisals in Protocol I: Greater Protection for War Victims.” International Review of the Red Cross 320 (September–October 1997): 524–28.