REPRISAL : VENGEANCE OF INTERNATIONAL LEVEL

Picture Courtesy: https://static1.squarespace.com/static/50438d1dc4aa994481346f77/t/555f88c8e4b0fcaf8c916229/1432324297667/?format=500w

This article was written by Shambhavi Suyesha, a student of KIIT School of Law.

INTRODUCTION:

Reprisal is an act which is illegal and has been adopted by one state in retaliation for the commission of an earlier illegal act by another state.[1] The doctrine of reprisal in the laws of war authorizes execution of an otherwise illegal act under the law of armed conflict if it meets certain conditions, including a prior illegal act by the first party and an effort to redress that wrong short of conflict. The responding illegal act becomes authorized under the law of war if it is proportionate to the original wrong and is done to compel the offending state to comply with the laws of war. International conventions have limited the targets subject to reprisal, such as prohibiting them against prisoners of war, but the doctrine survives.[2]

Reprisal is an otherwise illegal act done in response to a prior illegal act by a state, proportionate to the original wrong. International law has evolved in its application of the doctrine of reprisal to avoid an increasing spiral of violence as one side reprises against another’s illegal acts generating increasingly violent bloodshed, when the laws of war are designed to regulate and limit such harm.

United Nations General Assembly in 1970, declared in its Resolution 2625 that “States have a duty to refrain from acts of reprisal involving the use of force”[3]

There are two types of reprisal:-  Reprisals taken during a situation of armed conflict are described as belligerent reprisals, while those resorted to during peacetime are referred to as peacetime, pacific or armed reprisals.[4]

Reprisal includesseizure of property or ships on the high seas, and even bombardment or occupation of   territory in response to a previous wrong, such measures being classified as falling short of war.[5]

Reprisal connotes coercive measures adopted by one state against another for the purpose of settling some disputes brought about by the latter’s illegal or unjustified act.[6]

The classic case dealing with the law of reprisal is the Naulilaa[7] dispute. In this case, the tribunal laid down the following, principles:

• Reprisals are illegal unless they are based upon a previous act contrary to International law.
• There must be a certain proportion between the offence and the reprisals as a necessary condition for the legitimacy of the latter.
• Reprisals are only legitimate when they have been preceded by an unsuccessful demand of redress. In fact, the employment of force is only justified by necessity.[8]

The reprisal need not and usually cannot be directed against those persons on the adverse side who are responsible for the unlawful conduct, and hence tends mainly to affect people who are “innocent” of that conduct. Also, the adversary often regards an alleged reprisal as a plainly unlawful act that in turn justifies reprisals, leading to a spiral of increasingly serious damage and suffering.[9]

Kelsen defined reprisals as “act which are although normally illegal but are exceptionally permitted as reaction on one state against violation of its rights by another state.”[10]

According to 1934 Resolution of Istitut de droit International -“Reprisals are measures of coercion, derogating from the ordinary rules of international law, decided and taken by a State, in response to wrongful acts committed against it, by another State, and intended to impose on it, by pressure exerted through injury, the return to legality.”[11]

CONDITIONS FOR REPRISAL:

Five conditions must be met in order for belligerent reprisals against permitted categories of persons and objects not to be unlawful. Most of these conditions are laid down in military manuals and are supported by official statements. These conditions are:

• Purpose for Reprisal: Reprisals may only be 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. Because reprisals are a reaction to a prior serious violation of international humanitarian law, “anticipatory” reprisals or “counter-reprisals” are not permissible, nor can belligerent reprisals be a reaction to a violation of another type of law. In addition, as reprisals are aimed at inducing the adversary to comply with the law, they may not be carried out for the purpose of revenge or punishment. Reprisals are used against another State in order to induce that State to stop the violation of international law.[12]
• Measure of last resort: Reprisals may only be carried out as a measure of last resort, when no other lawful measures are available to induce the adversary to respect the law. According to the Draft Articles on State Responsibility, before taking countermeasures an injured State must call on the responsible State to fulfil its obligations, notify the responsible State of any decision to take countermeasures and offer to negotiate with that State. In its judgment in the Kupreskic case[13] in 2000, the International Criminal Tribunal for the former Yugoslavia confirmed what had already been stated by the Special Arbitral Tribunal in the Naulilaa case[14] in 1928, namely that reprisals may only be carried out after a warning to the adverse party requiring cessation of the violations has remained unheeded.[15]
• Proportionality: Reprisal action must be proportionate to the violation it aims to stop. This condition was already laid down in 1880 in the Oxford Manual and was recently reaffirmed in the Draft Articles on State Responsibility[16]. Most of the practice collected requires that acts taken in reprisal be proportionate to the original violation. Only a few pieces of practice specify that proportionality must be observed with regard to the damage suffered.[17]
• Decision at the highest level of government: The decision to resort to reprisals must be taken at the highest level of government. In its judgment in the Kupreskic case[18] in 2000, the International Criminal Tribunal for the former Yugoslavia held that the decision to resort to a reprisal must be taken at the highest political or military level and may not be decided by local commanders.[19]
• Termination: Reprisal action must cease as soon as the adversary complies with the law. This condition, formulated as a formal prohibition in the event that the original

wrong had been repaired, as stated in Draft Articles on State Responsibility[20]. In its judgment in the Kupreskic case[21] in 2000, the International Criminal Tribunal for the former Yugoslavia confirmed that reprisal action must stop as soon as the unlawful act has been discontinued.[22]

NAULILAA INCIDENT:

In October 1914 when Portugal was neutral, a German group entered the Portuguese-African territories from the German South West Africa. Thereafter the incident that took place at Portuguese port, Naulilaa due to some misunderstanding it mainly occurred due to inefficiency of German interpreters, Lt. Sereno thought he was being threatened and, therefore he took the action in his self-defence. And because of all this misunderstanding shots were fired resulting in the death of a German officer and his two subordinate officers. As a reprisal, the Governor of German South-West-Africa sent a military party to the Portuguese territory which had a confrontation with the Portuguese soldiers which were sent to the southern border territory of Angola to suppress the people of a certain tribe and the Portuguese soldiers were defeated in this confrontation. After this the German military returned back to their territory but then the natives of Portugal revolted and this caused great harm to the state of Portugal. As a reprisal Portugal expelled the German Consul from its country. Germany contended that her action was justified as a valid reprisal. The Arbitral Court held that Germany was liable to pay compensation as her action was not justified as a reprisal.[23]

ISRAEL V.PALESTINE:

Another example of reprisal is the conflict going between Israel and Palestine. After World War II, Jewish wanted their own country. They were given a large part of Palestine, which they considered their traditional home but the Arabs did not accept the new country. In 1948, the two sides went to war. When it ended, Gaza was controlled by Egypt and another area, the West Bank, by Jordan. They contained thousands of Palestinians who fled what was now the new Jewish home, Israel. But then, in 1967, after another war, Israel occupied these Palestinian areas and Israeli troops stayed there for years. Israel finally left Gaza in 2005 but soon after; a group called Hamas, a terrorist organisation won elections and took control there. It refuses to recognise Israel as a country and wants Palestinians to be able to return to their old home and for this they used the force. Since then, Israel has held Gaza under a blockade, which means it controls its borders and limits that can get in and out.[24]

During the 1948 and 1967 wars hundreds of thousands of Palestinians left, or were forced out of, their homes and moved to neighbouring countries to become refugees. More than 4.6 million Palestinians are refugees and their descendants, many living in camps in the West Bank, Gaza Strip, Syria, Jordan and Lebanon. They get help from the United Nations.[25]

From Palestinians rockets are regularly fired from Gaza into Israel. In the years since Israel withdrew its troops in 2005, Gaza has seen several Israeli offensives. Israel says these were aimed at putting a stop to rocket fire.[26]

Because this satisfy the conditions for reprisal that against the illegal attack of a state another state is also using illegal means to stop it. The rational choice for both parties is to end these tit-for-tat reprisals.

 

REPRISAL IN TODAY’S SCENARIO:                                                                                

Today, reprisal has almost entirely disappeared from the canon of International Humanitarian Law.  Each successive revision of International Humanitarian Law treaties has put additional categories of combatants and civilians beyond the reach of reprisal actions.

The 1923 Italian bombardment stands as one of the few twentieth century examples of a state representative unambiguously categorising action as an armed reprisal. Israeli military operations against neighbouring states “are generally taken to constitute the main nucleus of modern practice on armed reprisals”. The Security Council has condemned Israeli actions as unlawful reprisals or retaliation contrary to the United Nations Charter.[27]The 1949 Geneva Conventions extended the prohibition from prisoners of war to those civilians protected by the Fourth Geneva Convention, and Additional Protocol I of 1977 specifically extends the protection to civilians of any kind as well as to “civilian objects.” Perhaps the only circumstance, in which International Humanitarian Law today still permits reprisal actions, if at all, is as a response to the use of illegal methods or weapons against other state. The trend, clearly, is to outlaw reprisal under all circumstances.[28]

After 1945, as a result of the general prohibition on use of force imposed by Article 2(4) of the UN Charter, armed reprisals in time of peace are no longer legal, but the possibility remains of non-armed reprisals i.e. countermeasures as well as belligerent reprisals during hostilities when the law of international armed conflict (LOIAC) is violated. The legal reprisals, which were done by the Germans in World War II[29], are now called “war crimes.[30]

The adoption of the 1949 Geneva Conventions represented a significant development in the law of reprisals. They prohibited:

(a) Reprisals against soldiers who are wounded or sick, medical personnel, or medical buildings or equipment;

(b) Reprisals against naval personnel who are wounded, sick, or shipwrecked, naval medical personnel, hospital ships or equipment;

(c) Reprisals against prisoners of war; and

(d) Reprisals against civilians and their property in occupied territory and internment.[31]

Most of the expansion resulted from the Fourth Geneva Convention, which prohibited reprisals against civilian internees and inhabitants of occupied territories. These were previously some of the most common targets for reprisals. While the 1949 Geneva Conventions significantly expanded the class of persons and property protected from reprisals, unmentioned was whether civilians and civilian objects in enemy, non-protected territory should also be protected from reprisals. The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable to Armed Conflicts, Geneva, 1974-1977, resolved this issue. The Conference resulted in two additional protocols to the Geneva Conventions of 12 August 1949, of which Protocol I was particularly important in relation to reprisals. Protocol I apply between parties to the Protocol in cases of international armed conflicts, and apply between a party to the Protocol and a national liberation movement. Article 20 of Protocol I prohibits reprisals against persons and objects protected by Part II of Protocol I. This includes the wounded, the sick and shipwrecked, and those medical and religious personnel, buildings, vehicles and aircraft protected by Articles 8 through 34 of Protocol I. Article 52(1) of Protocol I states, “Civilian objects shall not be the object of attack or reprisals.” Civilian objects are defined as all objects that are not military objectives. This provision recognizes that reprisals against civilian objects often result in incidental loss of lives and often affect the important interests of civilians. Article 53 of Protocol I prohibits making “historical monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples . . . the object of reprisals.”[32]

The Commentary on the Charter of the United Nations considered “that reprisal, once the most frequently used form of force, is today likewise only admissible in so far as it does not involve the use of armed force”.[33]

In 1964, the Security Council adopted a resolution regarding British military action in Yemen, in which it “Condemns reprisals as incompatible with the purposes and principles of the United Nations”. The United Kingdom did not dispute the unlawfulness of reprisals, but rather challenged the categorisation of the military action in question as either a reprisal or retaliation. The Security Council condemned an attack by Israel on villages in Southern Lebanon in 1969 as a violation of the Charter and of previous resolutions, and declared that: “such actions of military reprisal and other grave violations of the ceasefire cannot be tolerated and that the Security Council would have to consider further and more effective steps as envisaged in the Charter to ensure against repetition of such acts.”[34]The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States sets out that “States have a duty to refrain from acts of reprisal involving the use of force”.[35]

The General Assembly’s 1981 Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States proclaimed that the duty of States to refrain from armed intervention and interference also covers “acts of reprisal involving the use of force”.[36]

In Nicaragua v. United States[37], the Court drew on Resolution 2625, finding that it “affords an indication of States’ opinio juris as to customary international law”, and it identifies reprisals as a prohibited “less grave form of the use of force”.[38]

CONCLUSION:

Reprisal means retaliation in common language but it is a legal term in international law describing a particular kind of retaliation. Reprisal is an act which is unlawful, against another State in response to a prior illegal act of the State to which the reprisal is directed. To be a reprisal, it must be undertaken for the purpose of forcing, or inducing, enemy forces to cease their own violation of International Humanitarian Law. When it is done for the purpose of forcing an adverse party to cease violating International Humanitarian Law, it may become a legal act, providing all the legal criteria are met. Moreover, an act of reprisal, to be a reprisal and not mere retaliation, must be proportionate. The main elements of reprisal are:

• Subsidiarity -failure of all other available mean,
• Notice -formal warning of the planned action,
• Proportionality- the damage and suffering inflicted on the adverse party not to exceed the level of damage and suffering resulting from its unlawful conduct,
• Temporary – termination of the reprisal when the adversary stops violating the law.

With the time the act of reprisal is limited for the states through treaty law and international practice, in relation to protected objects and persons under the Geneva Conventions and Additional Protocol I. The Geneva Conventions have limited the ambit of the act done illegally under the meaning of reprisal. Now days each and every type of retaliation is not treated as reprisal.

 After the Second World War the term reprisal has been limited to legal retaliation or illegal retaliation with certain restrictions and mainly when another state against which retaliation is done has acted illegally. There are certain conditions given in Naulilaa[39] case which has to be applied while measuring the illegality of the reprisal. In the Kupreskić[40] case, the ICTY held that reprisals are subject to international rejection. Rule 145 of the ICRC Customary Law Study has stated the conditions where the act of reprisal is not prohibited.

Reprisals, through various incidents and different decisions of International Court of Justice and Security Council have proved to be productive of greater violence rather than a deterrent to violence. So if it is done, it should be done within the ambit of International Law and it should be done according to the conditions given by Geneva Conventions and Additional Protocol 1977 and without harming the civilians and civilian’s object.

[1]MALCOM N. SHAW , INTERNATIONAL LAW, pg. 1023 (5^th edition , 2007)

[2]COLONEL NORMAN F.J. ALLEN III, REPRISAL UNDER INTERNATIONAL LAW: A DEFENSE TO CRIMINALCONDUCT? USAWC CLASS OF 2009, pg.11 (2009)

[3]SHANE DARCY, RETALIATION AND REPRISAL, Forthcoming in Marc Weller (ed.), pg. 1 (2013)

[4]Id. at pg. 3

[5]Id. at pg. 6

[6]DR. S. K. KAPOOR, INTERNATIONAL LAW AND HUMAN RIGHTS, Pg. 709  (19th edition 2014).

[7]GERMANY V.PORTUGAL (1928)2 RIAA 1012, 1019

[8]Id.

[9]FRITSKALSHOVEN, REPRISAL, pg.1(last visited on August 13, 2017) , http://www.crimesofwar.org/a-z-guide/reprisal/

[10]SHANE DARCY, RETALIATION AND REPRISAL, Forthcoming in Marc Weller (ed.), pg. 2 (2013)

[11]Id. at pg. 4

[12]Rule 145. Reprisals, ICRC CUSTOMARY IHL, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule145 (last visited on August 13, 2017)

[13]Case No.: IT-95-16-T

[14]GERMANY V.PORTUGAL(1928)2 RIAA 1012, 1019

[15]Rule 145. Reprisals, ICRC CUSTOMARY IHL, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule145 (last visited on August 13, 2017)

[16]DRAFT ARTICLE ON STATE RESPONSIBILITY,  ARTICLE 51

[17]Rule 145. Reprisals, ICRC CUSTOMARY IHL, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule145 (last visited on August13, 2017)

[18]Case No.: IT-95-16-T

[19]Rule 145. Reprisals, ICRC CUSTOMARY IHL, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule145 (last visited on August 13, 2017)

[20]DRAFT ARTICLE ON STATE RESPONSIBILITY,  ARTICLE53

[21]Case No.: IT-95-16-T

[22]Rule 145. Reprisals, ICRC CUSTOMARY IHL,https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule145 (last visited on August 13, 2017)

[23] DR. S. K. KAPOOR, INTERNATIONAL LAW AND HUMAN RIGHTS, Pg.710 (19th edition. 2014).

[24]Guide: Why are Israel and the Palestinians fighting over Gaza?, pg. 1 (last visited on August. 13, 2017) http://www.bbc.co.uk/newsround/20436092

[25]Id.

[26]Id.

[27]SHANE DARCY, RETALIATION AND REPRISAL, Forthcoming in Marc Weller (ed.), pg. 20 (2013)

[28]KENNETH ANDERSON, pg.1 (last visited on August 13, 2017)http://www.crimesofwar.org/a-z-guide/reprisal-killings/

[29]The reprisal at Oradour-sur-Glane in France, and the reprisal against Italian partisans at the Ardeatine Caves in Italy.

[30]COLONELNORMANF.J. ALLENIII, REPRISAL UNDER INTERNATIONAL LAW: A DEFENSE TO CRIMINAL CONDUCT? ,USAWC CLASS OF 2009,pg. 11 (2009)

[31]ANDREWD. MITCHELL,DOES ONE ILLEGALITY MERIT ANOTHER?THE LAW OF BELLIGERENTREPRISALS INTERNATIONAL LAW,pg.162-163 (2001)

[32]Id. at 164-165

[33]SHANE DARCY, RETALIATION AND REPRISAL, Forthcoming in Marc Weller (ed.), pg. 13 (2013)

[34]Id. at pg. 14

[35]Id.

[36]Id. at pg. 15

[37]I.C.J. (1986) Rep. 14

[38]SHANE DARCY, RETALIATION AND REPRISAL, Forthcoming in Marc Weller (ed.), pg. 15 (2013)

[39]GERMANY V.PORTUGAL (1928)2 RIAA 1012, 1019

[40]Case No.: IT-95-16-T