Legal Regulation of Belligerent Reprisals in International Humanitarian Law: Historical Development and Present Status

• Jurisdiction: South Africa
• Author: Brian Sang YK
• Published date: 22 August 2019
• Pages: 134-184
• Date: 22 August 2019

134

Legal Regulation of Belligerent

Reprisals in International

Humanitarian Law: Historical

Development and Present Status

Brian Sang YK*

A reckless enemy often leaves to hi s opponent no other means of secur ing

himself again st the repetition of barbarous outrage.1

[No army] could reasonably be ex pected to renounce in war s o effective

and powerful a weapon for the re dress or cessation of a reported intolerable

wrong upon its own nationals at the ha nds of the enemy as immediate or

threatened reprisa l on enemy units in its own hands.2

[R]eprisals instead of bei ng a means of secur ing legitimate warfa re may

become an effect ive instrument of its wholesale and c ynical violation in

matters constituting t he very basis of the law of war.3

1 INT RODUCTION

In 1952, Sir Hersch Lauterpacht, a highly disting uished publicist of

international law, famously remarked that if international law is, in

some ways, at the vanishing point of law, then ‘perhaps even more

conspicuously’ at its vanishing point is the law of armed con ict –

international humanitarian law.4 Decades later, and in spite of the

progressive changes that this law has undergone, this statement

still rings somewhat true at present; par tly, because the legal regime

governing armed conict is considere d subjective, indeterminate and

* LLB (MU ), LLM (UCT), PhD (Can) (UCT), Depart ment of Public Law, University

of Cape Town.

1 Article 27, General Orders No 100 Instru ctions for the Government of Armie s of the

United States in the Field (‘Liebe r Code’) reprinted i n D Schindler and J Toman

(eds) The Laws of Armed Conicts (1973) 7.

2 Tenth International Confere nce of the Red Cross quoted in Frits K alshoven

Belligerent Repr isals (1971) 74.

3 Hersch Lauterpacht (ed) 2 Lassa Oppenh eim’s International Law: Disputes, War and

Neutral ity (1952) 565.

4 Hersc h Lauterpacht ‘The problem of t he revision of the law of war ’ (1952) 29

British Yearbook of Internat ional Law 360, 381-382; see also Ma rco Sassòli et al

How Does Law Protect i n War? Vol I (2011) chapter 2.

(2012) African Yearbook on International Humanitarian Law 134

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LEGAL REGU LATION OF BELLIGEREN T REPRISALS 135

deeply contentious in certain respects,5 a nd also because it hardly

supplies adequate organic mechanisms or procedures for effect ive

enforcement.6 These supposed inadequacies have, however, not been

insuperable impediments to ensuri ng respect for this law in practice.7

Historically, the law of armed conict has found in the ‘time-honored,

but controversial, institution of belligerent reprisal’ potent sanct ion for

its effective enforcement.8 Belligerent reprisals are l imited and specic

‘intentional violations of a given rule of the law of armed conict,

committed by a Party to the con ict with the aim of inducing t he

authorities of the adverse party to discontinue a polic y of violation of

the same or another rule of that body of law’.9 Traditionally, belligerent

reprisals have been regarded as lawf ul means to which an aggr ieved

belligerent may recourse in order to ‘coerce the cessation of serious

violations of the law’ of armed conict; for instance, g rave, manifest,

deliberate and unrelenting unlaw ful attacks, by the adversa ry.10 This

denotes the ‘transformative character’ of reprisal as ‘extraordinary

measures’11 of self-help through which otherwise illegal conduct is

justied: while its constitutive acts would ordina rily be unlawfu l,

they acquire the sanction of law by vir tue of the aggressor’s previous

5 See Frits Kalshoven and Liesb eth Zegveld Constraints on th e Waging of War (20 01)

12-14; Philip Sutter ‘The continuin g role for belligerent repris als’ (2008) 13(1)

Journal of Conict and Se curity Law 93-12 2.

6 Andrew D Mitchel l ‘Does one legality mer it another? The law of belligere nt

reprisals in i nternational law’ (20 01) 170 Military Law Review 155, 155; Shane

Darcy ‘The evolution of the law of b elligerent reprisals’ (2001) 175 Military Law

Review 184, 184; see also Sa ssòli op cit note 4 chapter 13 at 3.

7 Michael A Newton ‘Reconside ring reprisals’ (2010) 20 Duke Jour nal of Comparative

and International Law 361, 362; Oscar Schacter ‘United Nations law’ (1994) 88

American Journal of Inte rnational Law 1, 10.

8 George H Ald rich ‘The laws of war on la nd’ (2000) 94(1) American Journ al of

International La w 57; Stanislaw E Nahli k ‘Belligerent reprisals a s seen in the light

of the diplomatic conference on hum anitarian law, Geneva, 1974-1977’ (1978)

42(2) La w and Contemporary Problems 36, 37; see art 27 Lieber Cod e: ‘The law of

war can no more wholly disp ense with retaliation than can t he law of nations,

of which it is a branch. Yet civil ized nations acknowledged r etaliation as the

sternest feature of wa r.’ See also art 84, Inst itute of International L aw Oxford

Manual of the Laws of War (1880) (‘Oxford Manual’) repr inted in D Schindler and

J Toman op cit note 1 at 35: ‘[I]f the injured party deem t he misdeed so seriou s

in character as to ma ke it necessary to re call the enemy to a respect for law, no

other recourse t han a resort to reprisals rema ins’.

9 Frits Kalshoven Constraints on the Waging of War (1987) 6 5.

10 Aldrich op cit note 8 at 57; Kalshoven op cit note 2 at 367-369.

11 Mitchell op cit note 6 at 155; Hans Kelsen Principles of Interna tional Law (1952)

23.

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136 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

misconduct which is an international delinquency.12 Yet, within

the province of the law of armed conict, the question of the legal

regulation of belligerent reprisal s remains one of its most controversial

issues; in some ways, it is situated at the vanishing point of this law.13

On the one hand, it is argued that while the deterre nt effect of reprisals

against wartime v iolations is well-established, their perm issibility may

‘provide an ostensible rationale for otherwise unthinkable atrocit y’.14

Indeed, as was astutely observed by Oppe nheim, rather than being

legitimate means of securing complia nce with the law of war, if

unregulated, reprisa ls may become an effective instr ument of the

‘wholesale and cynical violation’ of matters funda mental to this law.15

The 1977 Additional Protocols to the 1949 Geneva Conventions, which

all but completely outlaw belligerent reprisals, appear to be treat y law

developments in response to its abuse by States during post-Second

World War conicts, and the consequent disrepute into which they

came.16 On the other hand, there have been notable expressions of

dissatisfaction, cyn icism and even overt rejection regarding the

unconditional prohibition of belligerent reprisals, part icularly in

the face of widespread and persistent violations of international

humanitarian law.17 The increasing incidents of terrorism by non-State

armed groups are poigna nt examples of the present challenge which

confronts States; in such instances, it has been vigorously arg ued

by, among others, the United States that the absolute prohibition of

reprisals is hardly practical:

In the event of massive and continuing v iolations of the [law of armed

conict], this ser ies of prohibitions of reprisals may prove unworkable.

Massive and continuing attac ks directed aga inst a nation’s civilian

population could not be absorbed w ithout a response in kind. By de nying

12 A ntonio Cassese Inter national Law (2005) 29 9; Milan Kuhli a nd Klaus Günther

‘Judicial lawma king, discou rse theory, and the ICTY on b elligerent repris als’

(2011) 12(5) German Law Journal 1261, 1268: ‘The extent to which t he parties

to an armed con ict are entitled to take b elligerent repris als is one of the

most controversial issues i n modern internationa l humanitaria n law’; Edward

Kwakwa The Inte rnational Law of Ar med Conict: Personal and Mat erial Fields of

Application (1992) 130-131.

13 Nah lik op cit note 8 at 36; Edward Kwak wa ‘Belligerent repr isals in the law of

armed conic t’ (1990-1991) 27 Stanford Journal of Internatio nal Law 49, 49.

14 Newton op cit note 7 at 372; Mitchell op cit note 7 at 155: ‘Although reprisal s

may have a useful deter rent effect, they can cycle out of control into an or gy of

violence, and even when they do not, the y typically i nict great su ffering on

innocents.’ See also Ku hli and Günther op cit note 12 at 1268.

15 Lauterpacht op cit note 3 at 565.

16 Kalshoven and Zegveld op cit note 5 at 76; Frits Kalshoven ‘ Belligerent reprisals

revisited’ (1990) 21 Netherlands Yearbook of International Law 43, 54.

17 Michae l J Matheson, Depart ment of State Legal Advisor ‘Com ments to

the Humanitar ian Law Conferenc e’ (1987) 2 American University Jour nal of

International Law and Policy 419, 426: ‘The U.S. does not suppor t [the provisions]

of art 51 and subsequent Protocol I … proh ibiting the use of reprisals and [does]

not regard such prohibitions to ree ct customary international law.’

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