The Evolution of the Law of Belligerent Reprisals

• Author: Shane Darcy
• Pages: 04

184 MILITARY LAW REVIEW [Vol. 175

THE EVOLUTION OF THE LAW OF BELLIGERENT REPRISALS

SHANE DARCY1

Revenge is a kind of wild justice; which the more mans nature runs to, the more ought law to weed it out. For as for the first wrong, it doth but offend the law; but the revenge of that wrong putteth the law out of office.

-Francis Bacon, Essays: Of Revenge (1597).

I. Introduction

One of the major shortcomings of the laws of armed conflict is the failure of that regime to provide for adequate means of enforcing those laws. Belligerent reprisals have been employed on the battlefield for centuries and are one of the few available sanctions of the laws of war. They are defined as "intentional violations of a given rule of the law of armed conflict, committed by a Party to the conflict with the aim of inducing the authorities of the adverse party to discontinue a policy of violation of the same or another rule of that body of law."2 Effectively, belligerent reprisals allow for derogation from the laws of armed conflict to ensure compliance with those same laws. It is unsurprising, therefore, that modern international humanitarian law has increasingly sought to restrict the extent to which those laws may be breached by way of belligerent reprisal. This article examines the evolution of the law of belligerent reprisals and

assesses the desirability of those laws governing recourse to belligerent reprisals.

Section II begins by establishing the various customary requirements that must be met before any reprisal actions may be undertaken. This section also discusses the important established principles that must be observed in the exercising of belligerent reprisals. Having set out these basic rules, Section III examines the numerous restrictions that international humanitarian law treaties have placed on a belligerent's right to take reprisals. Section IV then enumerates those remaining permissible belligerent reprisals that may lawfully be taken. The discussion here differentiates between reprisals permitted in international armed conflicts and those allowed in non-international conflicts. Section V seeks to establish the customary law of belligerent reprisals. This section examines some of the more recent developments in the law of belligerent reprisals, in particular, some recent jurisprudence of the International Criminal Tribunal for the former Yugoslavia. The final section discusses some of the main arguments for and against the use of belligerent reprisals and also alludes to other means of enforcing compliance with the laws of armed conflict. First, however, it is necessary to discuss briefly the concept of reprisals under international law generally and to distinguish belligerent reprisals from some similar concepts.

1. Reprisals Under International Law

   Belligerent reprisals under the laws of armed conflict are closely related to reprisals under international law generally; as Kalshoven puts it, "belligerent reprisals . . . are a species of the genus reprisals."3 Belligerent reprisals, therefore, bear many of the characteristics of reprisals in general and are bound by similar principles that govern use of the latter. Reprisals under international law are prima facie unlawful measures taken by one State against another in response to a prior violation by the latter and for the purpose of coercing that State to observe the laws in force.4 It is this law enforcement function that places reprisals in the category of sanctions of international law and that grants them legitimacy, despite their inherently unlawful character. To maintain this legitimacy, the act of reprisal must respect the "conditions and limits laid down in international law for justifiable recourse to reprisals; that is, first of all, objectivity, subsidiarity,

   and proportionality."5 In addition to their law enforcement function, reprisals are seen as a forcible means of settling disputes between States and for securing redress from another State for its misdeeds.6 These functions would be more properly classified, however, as subsidiary effects of the primary goal of law enforcement.

2. Closely Related Concepts

   One must distinguish reprisals from the closely related concepts of retaliation and retorsion. The law of retaliation, the lex talionis, demands that a wrongdoer be inflicted with the same injury as that which he has caused to another.7 The term retaliation does not find a place in modern legal terminology; instead, the word tends to mean any action taken in response to the earlier conduct of another State. Hence, one can view reprisals as measures taken in retaliation, although not in revenge, for an earlier unlawful act. Similarly, acts of retorsion are retaliatory in nature, although they differ from reprisals in that they are lawful responses to prior unfriendly, yet lawful, acts of another State. The aim of retorsion is to induce the other State to cease its harmful conduct. Examples of acts of retorsion include severance of diplomatic relations and withdrawal of fiscal or trade concessions.8

3. Belligerent Reprisals as Distinct from Armed Reprisals

   One category of reprisals that must be distinguished from belligerent reprisals are armed or peacetime reprisals. These reprisals are measures of force, falling short of war, taken by one State against another in response to a prior violation of international law by the latter.9 The legality of the resort to armed reprisals is within the proper remit of the jus ad bellum, although the actual military action taken must be "guided by the basic

   norms of the jus in bello."10 Despite their proximity, this articles confines its analysis to the law of belligerent reprisals.

   II. Customary Rules Governing Recourse to Belligerent Reprisals

   A number of conditions that must be met for an act to qualify as a legitimate reprisal are implicit in any correct definition of belligerent reprisals. For example, McDougal and Feliciano set out that legitimate "war reprisals" are "acts directed against the enemy which are conceded to be generally unlawful, but which constitute an authorized reaction to prior unlawful acts of the enemy for the purpose of deterring repetition of antecedent acts."11 Two primary requirements emerge from this formulation:

   (1) the reprisal measures must be in response to a prior violation of international humanitarian law; and (2) they must be for the purpose of enforcing compliance with those laws. Customary international law also demands that any resort to belligerent reprisals must be in strict observance of the principles of proportionality and subsidiarity.

   Early codifications of the laws of war specify that retaliatory actions must be in conformity with these basic principles. The Lieber Code12 of

   1863, although clearly not a treaty, is regarded as the first attempt to codify the laws of war. In this regard, the document acknowledges retaliation as a common wartime practice and attempts to set some basic limitations on the use of retaliatory measures:

   Article 27. The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.

   Article 28. Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution. Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine war of savages.13

   Although the Lieber Code does not expressly use the term reprisal, it is clear from these provisions that the retaliation taken must be in response to prior violations or "misdeeds" and that those measures are not for the purpose of revenge but "as a means of protective retribution," namely, to halt and prevent the recurrence of the original, or similar, offending acts.

   In a similar vein, the Oxford Manual (Manual),14 adopted by the Institute of International Law in 1880, gave express consideration to the issue of belligerent reprisals as a means of sanction. Article 84 of the Manual sets out inter alia that

   if the injured party deem the misdeed so serious in character as to make it necessary to recall the enemy to a respect for law, no other recourse than a resort to reprisals remains.

   Reprisals are an exception to the general rule of equity, that an innocent person ought not to suffer for the guilty. They are also at variance with the rule that each belligerent should conform to the rules of war, without reciprocity on the part of the enemy.15

   Having enumerated a right of retaliation, the Manual then proceeds to set a number of limits on the exercise of that right. It stipulates that resort to reprisals is prohibited when "the injury complained of has been repaired."16 In deference to the principle of proportionality, Article 86 establishes that the "nature and scope" of the reprisal must "never exceed the measure of the infraction of the laws of war committed by the enemy."17 Furthermore, the exercise of this right must be in observance of

   the "laws of humanity and morality," and the authorization for such measures can only be given by the commander in chief.18

   The template for the customary law of belligerent reprisals can be found in these two historically important documents. The drafters of the Lieber Code and the Manual clearly endorsed the principles of proportionality, subsidiarity, and humanity. They also established that resort to belligerent reprisals must be for the purpose of law enforcement and that such measures must be in response to a prior...