Iron Swords - Law - Reprisal
Traditionally, international law did not contain a centralized enforcement mechanism. It was against this background that injured States resorted to reprisals as a self-help or self-protection measure. Reprisals would be contrary to international law unless they were taken by the injured State in response to an internationally wrongful act committed by a responsible State, in order to induce the latter to comply with its obligations. ‘Reprisal’ or ‘belligerent reprisal’ are the terms commonly used in the context of international armed conflict, whereas they have become known as ‘countermeasures’ outside of this context.
Belligerent reprisals are measures taken in the context of an international armed conflict by a Party in reaction to a violation of international humanitarian law by an adversary.[134] Such reprisals may not be carried out for the purpose of revenge or punishment, but only with the aim of putting an end to a violation and inducing the adversary to comply with the law. Although acts constituting belligerent reprisals are in principle unlawful, their wrongfulness is precluded because of the particular circumstances in which they are taken, i.e. in response to a violation committed by an adversary.
Furthermore, reprisals may be carried out only as a measure of last resort, when no other lawful measures are available to induce the adversary to respect the law.[137] Reprisals must cease as soon as the adversary again complies with the law.[138] It is widely recognized that reprisal action must be proportionate to the violation it aims to stop.
In international law, a reprisal is a breach of international humanitarian law that is considered lawful in exceptional cases. Reprisals are measures of pressure that are taken by one state against another in response to a prior violation by the latter. The purpose of reprisals is to coerce the other state to observe the laws in force. Reprisals are illegal if taken alone, but become legal when adopted by one state in retaliation for the commission of an earlier illegal act. Counter-reprisals are generally not allowed. Under international law, as in domestic law, there can be no reprisal against reprisal.
Reprisals are carried out by a State in response to unlawful acts committed against it by another and are intended to force the offending party to respect the law. Reprisals may also be carried out in response to an attack. The law of reprisal is a fraught topic on which the United States and some of its closest allies part legal ways.
International law has long recognized that the material breach of a treaty can be grounds for the party injured by the breach to terminate or withdraw from the treaty. It is a general principle of law that a right of termination on account of breach must be presumed to exist in respect of all treaties, except as regards provisions relating to the protection of the human person contained in treaties of a humanitarian character. The silence of a treaty as to the existence of such a right cannot be interpreted as implying the exclusion of a right which has its source outside of the treaty, in general international law.
All four of the 1949 Geneva Conventions included prohibitions on reprisals, as did the 1977 Additional Protocol I to those instruments. Although specific provisions of the Geneva Conventions rule out "reprisals" of particular kinds, they do not rule out reprisals as such. Thus, Article 13 of Geneva Convention III, while defining certain misconduct with respect to prisoners of war as constituting a "serious breach" of the Convention, also states categorically that "[m]easures of reprisal against prisoners of war axe prohibited." Article 60(5) of the Vienna Convention states that the usual rules permitting treaty suspension in some instances "do 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".
That provision seems to be an implicit prohibition only of a particular class of reprisals, not of all reprisals. Accordingly, it appears to be permissible, as a matter both of treaty law and of customary international law, to suspend performance of Geneva Convention obligations on a temporary basis. It also appears permissible to engage in reprisals in response to material breaches by an enemy, provided that the reprisals do not give rise to "grave" breaches or to reprisals against protected persons.
Reprisals are measures contrary to law, but which, when taken by one State with regard to another State to ensure the cessation of certain acts or to obtain compensation for them, are considered as lawful in the particular conditions under which they are carried out. This would be the case, for example, if a belligerent employed weapons forbidden by the Hague Regulations to counter the use of the same weapons by his adversary. A distinction is generally drawn between reprisals and retortion which, while it constitutes a severe countermeasure to the acts which it is wished to end, nevertheless remains in accordance with ordinary law. Thus, a belligerent would be able to withdraw from civilian internees privileges he had granted them over and above the treatment laid down in the Convention.
In 1874, the Brussels Conference, and in 1880, the Institute of International Law, had emphasized the need for regulations to cover reprisals, "an exception to the general rule of equity, that an innocent person ought not to suffer for the guilty."
The International Committee of the Red Cross has always raised its voice against reprisals, notably in respect of prisoners of War. It expressed this idea openly in its appeal to all the belligerents in 1916. The belligerents took account of this in certain special agreements made towards the end of the war and Article 2, paragraph 3 , of the Geneva Convention of 1929 forbids all measures of reprisal against prisoners of war.
This rule, which emphasizes a principle of far-reaching importance, was generally respected during the Second World War.
With regard to civilians, at the beginning of the Second World War the International Committee of the Red Cross had obtained agreement that enemy civilians interned in the territory of a belligerent should benefit by analogy from the provisions of the 1929 Convention relative to the Treatment of Prisoners of War. All reprisals against these internees were consequently prohibited, but it proved impossible [p.228] to obtain the same decision in regard to civilians in occupied territory and it was not until the drawing up of the Geneva Convention relative to the Protection of Civilian Persons in Time of War that the prohibition of reprisals against civilians was given its general form. The principle of the prohibition of reprisals against persons has now become part of international law in respect of all persons, whether they are members of the armed forces or civilians protected by the Geneva Conventions.
The prohibition of reprisals is a safeguard for all protected persons, whether in the territory of a Party to the conflict or in occupied territory. It is absolute and mandatory in character and thus cannot be interpreted as containing tacit reservations with regard to military necessity.
|
NEWSLETTER
|
| Join the GlobalSecurity.org mailing list |
|
|
|
