Military law/Laws of war—what exactly IS allowed in a "Reprisal"?

Factual Questions
1

I’ve done a little reading on the (occasionally rather murky) laws and treaties of war, but there’s something I’ve been puzzling over for awhile—the “belligerent reprisal.”

Wiki defines a Reprisal as “a limited and deliberate violation of international law to punish another sovereign state that has already broken them.” The US Commander’s Handbook on the Law of Naval Operations has a similar definition—noting that “The sole purpose of a reprisal is to induce the enemy to cease its illegal activity and to comply with the law of armed conflict.”

However, both seem to say that many acts that would violate the Geneva Convention are still prohibited as a form of Reprisal—like “you’re allowed to breach the law, as long as you don’t breach the law.”

IANAL, obviously, so I’m scratching my head over what IS allowed in a Reprisal. So far, I think I’ve got…

•The use of military force at all (to satisfy some strict definitions on lawful military action).
•Attacks that would kill civilians in an enemy area of control (…? The sources seem to differ on this point. And this comes with specific exclusions for hospitals and cultural landmarks, it seems, on top of that).
•Using otherwise forbidden weapons. (i.e. nuclear, biological, or chemical weapons. I guess hollow-point bullets and tear gas come in, too.)

If not for the targeting enemy civilians part, the Reprisal concept would seem to me to be tailored specifically to a point of “if the enemy commits war crimes, you’re allowed to retaliate with WMDs” But then, again, I’m not a lawyer, jurist, diplomat, military historian, or a trained strategist, so I’m sure I’m missing a lot in my interpretation.

So, can anyone help enlighten me? [del]Before I unleash my deadli[/del] I’d be most grateful and fascinated to find out more.

2

I think, not being a party to any of the activities mentioned, that it sounds like what would happen if you get hit by a sneak attack, then its payback time.

Declan

3

It may refer to things like the German shackling of POWs during WW2 in reprisal for some of the Germans captured in the Dieppe raid reportedly having had their hands tied (see the “POW Policies” section about 2/3 of the way down). This led to reprisal shackling of German POWs and ended with the Red Cross talking everyone into behaving again.

4

Most of the law on the subject comes form the Naulilaa Case.

here’s part of the holding:

“Reprisals, retorsions, and countermeasures are all measures of self-help taken by states. A reprisal is a state act taken in response to another state’s internationally wrongful act. Reprisals would themselves be illegal, except for the prior illegality of the other states.”

Emphasis mine.

Retorsions, on the other hand, are acts that are entirely legal within themselves, albeit meant to make another state, or encourage them to, cease illegal activities.

eta: whether or not proportionality is required with respect to reprisals is debates, even within the Naulilaa case. I wouldn’t expect a clean answer on that one. What is absolutely required is a demand that the specific illegal acts in question be stopped, prior to initiating reprisals.

5

You have to distinguish between reprisals as a general instrument in international law, and reprisals within armed conflicts.

In international law in general, the existence of reprisals and their effect of removing the illegality of an otherwise illegal act is well-accepted. This does not mean, however, that you may do anything you want to once the other side violates international law; rules exist, such as the proportionality rule Darth Panda mentioned. Some areas of international law also establish what is called a self-contained regime, meaning that the remedies states may seek when other states violate the law are listed explicity (such as taking the case before an international court established between the parties to a treaty, whose judgment is accepted as authoritative and binding) and reprisals are excluded.

In the law of armed conflict, in particular, international law is particularly hesitant to accept reprisals, largely based on the reasoning that civilians of state X are not the ones to blame if state X violates the laws of war, so enemy state Y should not retaliate against these civilians in a reprisal. The 1977 Protocol to the Geneva Convention largely limits the use of reprisals in armed conflict; Article 51(6), for instance, states: “6. Attacks against the civilian population or civilians by way of reprisals are prohibited.”, removing civilians from the possibility of taking reprisals entirely.

6

This law journal article may also be of interest.

7

One time my friend’s then 2½ year old son approached me with his eyes welling with tears and his bottom lip sticking out a half mile. I asked him what was the matter and very indignantly and almost sobbing, he said “Ashley (his older sister) hit me back!” I considered explaining reprisals, the Hague conferences and Rules of Land Warefare and such to him and then decided the best course I could take was to direct him to the other room where his father was working.

:slight_smile:

8

I think that is incorrect.

Things actually culminated with Hitler’s notorious “Commando Order” which called for the immediate execution of all captured Allied commandos.

9

Not much to add, except that I recently read Justice in Blue and Gray by Stephen C. Neff, about legal issues in the American Civil War. Pretty good book. He touches on reprisals a bit - they were common in the Civil War and were, under the law of war at the time, supposed to be carefully proportional and limited in scope to address whatever bad act led to them. As you might expect, reprisals can lead to tit-for-tat attacks until it’s easy to lose track of who’s paying who back for what.