The continuing role for belligerent reprisals

Journal of Conflict and Security Law

Volumn 13, Issue 1, 2008, Pages 93-122

  Sutter, Philip ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 55149117081     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/krn008     Document Type: Article

References (177)

1. The United States has determined that war crimes committed by captured enemy combatants will be adjudicated in military tribunals, United States Military Commission Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (17 October 2006) (authorizing the President to establish military commissions to try terrorists and unlawful enemy combatants for violations of the law of war and other offences).
2. See generally F. Kalshoven, International Humanitarian Law Series: Belligerent Reprisals (2nd edn., 2005).
3. The need for a doctrine to prevent current violations is clearly necessary, for example, on 20 January 2007, insurgents disguised as US soldiers stormed a compound in Karbala capturing four soldiers, the insurgents then abandoned the compound with their prisoners and attempted to escape, under pursuit from American soldiers and Iraqi police, the insurgents abandoned their vehicles and executed their prisoners, J. Glanz and M. Mazzetti, 'Iran May Have Trained Attackers That Killed 5 American Soldiers, U.S. and Iraqis Say', New York Times 31 January 2007, p. A10; the execution of captured American servicemen in Iraq appears limited by lack of access rather than the restraints of the law of war.
4. Two paratroopers from the 82nd Airborne Division were captured, tortured and then executed by Sunni insurgents, see, E. Wong, 'Insurgent Group Posts Video of 2 Mutilated U.S. Soldiers', New York Times, 11 July 2006, p. A10
5. see also D. Cave, '5 Killed and 3 Missing in Attack on American Patrol South of Baghdad', New York Times, 13 May 2007 (stating that only three insurgent attacks in Iraq have successfully captured American soldiers and two such attacks have resulted in executed American prisoners of war).
6. 1949 Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter Geneva Convention III).
7. 1949 Protocol Additional to the Geneva Conventions, Art. 18, and 1977 Relating to the Protection of Victims of International Armed Conflicts (hereinafter Additional Protocol I).
8. This article is concerned with jus in bellum or belligerent reprisals providing a remedy for law of war violations during a conflict and it will not cover jus ad bellum reprisals providing a remedy for an unlawful attack in peacetime; see Kalshoven, op. cit., fn. 2, pp. 11-44 (distinguishing between the two doctrines)
9. see also Naulilaa Case, Arbitration Between Portugal and Germany, Award of 31 July 1928, Reports of International Arbitral Awards, vol. II, p. 1011 (explaining the doctrine of jus ad bellum reprisals).
10. United States Army's Field Manual 27-10, The Law of Land Warfare (1956) para. 497(a) (hereinafter Law of Land Warfare).
11. United Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict (2004) 419 (hereinafter UK Defence Manual of Armed Conflict).
12. C. Greenwood, 'The Twilight of the Law of Belligerent Reprisals', (1989) 35 Neth. YBIL, 40-41. Greenwood reached his conclusion by determining that the law of war binds combatants without consideration for the legality of the conflict itself.
13. L. Oppenheim and H. Lauterpacht, International Law (1948) vol. II, para. 248, no. 2
14. see also Law of Land Warfare, op. cit., fn. 7, para. 497(b), a reprisal is only a legitimate response to a violation when it possesses such a nature that 'the safety of the troops requires immediate drastic action'.
15. Kalshoven, op. cit., fn. 2, p. 41.
16. See infra notes 19-28.
17. Geneva Convention III, op. cit., fn. 4, Art. 130.
18. Law of Land Warfare, op. cit., fn. 7, para. 495
19. see also UK Defence Manual of Armed Conflict, op. cit., fn. 8, p. 419 (must first exhaust other reasonable means of securing compliance before reprisals can be justified).
20. Law of Land Warfare, op. cit., fn. 7, para. 495.
21. UK Defence Manual of Armed Conflict, op. cit., fn. 8, p. 419.
22. See op. cit., fns. 9-13 and accompanying text.
23. See infra notes 24-28.
24. See C. W. Russell (ed.), The Memoirs of Colonel John S. Mosby (1917) 300-303
25. See also W. E. Boyle, Jr., 'Under the Black Flag: Execution and Retaliation in Mosby's Confederacy', (1994) 144 Mil. L Rev. 148, 155-162 (finding Mosby's reprisal to be lawful under the then existing laws of war).
26. Boyle, loc. cit., fn. 19, pp. 155-162.
27. Charles Wells Russell, (ed.), op. cit., fn. 19, pp. 302-303.
28. Ibid.
29. Ibid., p. 370.
30. See generally, The United States of America v Wilhelm List, et al. (1948) 8 Law Reports of the Trials of War Criminals 34 (hereinafter Hostages Trial); the trial determined the legality of German counter-insurgency operations in the Balkans. There, German commanders were fighting a prolonged guerrilla war that they sought to suppress by taking hostages and then executing them alongside any captured partisans. Their counter-insurgency operations also included burning villages and deporting civilians to concentration camps.
31. The United States of America v Otto Orlendorf et al., (1948) 9 Law Reports of the Trials of War Criminals 1 (hereinafter Einsatzgruppen Trial).
32. Trial of Kriminalsekretar Richard Wilhelm Hermann Bruns, (1946) 3 Law Reports of the Trials of War Criminals 12 (hereinafter Bruns Trial).
33. Trial of General von Mackensen and General Maelzer, (1945) 7 Law Reports of the Trials of War Criminals 43 (hereinafter Trial of von Machensen).
34. In re Kappler, Military Tribunal of Rome (20 July 1948) (hereinafter Ardeatine Cave Massacre Trial), in H. Lauterpacht (ed.), Ann. Dig. and Rep. of Pub. IntL Law Cases (1948) 471 at 472.
35. These customary law principles are further reflected in the military law manuals: UK Defence Manual of Armed Conflict, op. cit., fn. 8, pp. 418-420
36. Law of Naval Operations, infra note 145, para. 310
37. Law of Land Warfare, op. cit., fn. 7, para. 497.
38. 'Individual U.S. soldiers and units do not have the authority to execute a reprisal. That authority is retained at the national level.', D. I. Grimes, J. Rawcliffe and J. Smith, (eds) Operational Law Handbook (2006) 25.
39. See Law of Land Warfare, op. cit., fn. 7, para. 497(d)
40. UK Defence Manual of Armed Conflict, op. cit., fn. 8, p. 421.
41. See op. cit., fn. 28 and accompanying text.
42. Hostages Trial, op. cit., fn. 24, p. 65 (authorizing German commanders in the field to execute reprisals for partisan attacks and establishing the scope of those reprisals).
43. Law of Land Warfare, op. cit., fn. 7, para. 497(d).
44. A.R. Albrecht, 'War Reprisals in the War Crimes Trials and in the Geneva Conventions of 1949', (1953) 47 AJIL 590, 600.
45. S. Darcy, 'The Evolution of the Law of Belligerent Reprisals', (2003) 175 Mil. L Rev. 184, 193.
46. Ibid.
47. Canadian Joint Doctrine Manual of National Defence, Law of Armed Conffict at The Operational and Tactical Levels (2001) paras 1508-1509. Available at (hereinafter Canadian Armed Conflict Manual).
48. M. S. McDougal and F. P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion, (1961) 682.
49. Ibid.
50. Hostages Trial, op. cit., fn. 24, p. 39.
51. Ibid., p. 65.
52. Ardeatine Cave Massacre Trial, op. cit., fn. 28, p. 471.
53. Boyle, op. cit., fn. 19, pp. 155-162.
54. Law of Land Warfare, op. cit., fn. 7, para. 497(e).
55. UK Manual of Armed Conflict, op. cit., fn. 8, Art. 16.17(f).
56. A US military tribunal found the Topola reprisal to be excessive and unlawful based solely on the disproportionate nature of the act. Hostages Trial, op. cit., fn. 24, p. 65.
57. See Hostages Trial, op. cit., fn. 24, p. 65.
58. See also Trial of von Mackenson, op. cit., fn. 27, p. 45.
59. Adreatine Cave Massacre Trial, op. cit., fn. 28, p. 472.
60. Law of Land Warfare, op. cit., fn. 7, para. 497(b).
61. Darcy, op. cit., fn. 36, p. 190.
62. Adreatine Cave Massacre Trial, op. cit., fn. 28, p. 472.
63. Einsatzgruppen Trial, op. cit., fn. 25, p. 42.
64. Charles Wells Russell, (ed.), op. cit., fn. 19, pp. 302-303.
65. Bruns Trial, op. cit., fn. 26, p. 22.
66. Ardeatine Cave Massacre Trial, op. cit. fn. 28, p. 472.
67. Boyle, op cit., fn. 19, pp. 155-162.
68. Russell, op cit., fn. 19, pp. 302-303.
69. Francis Lieber, 'Instructions for the Government of Armies of the United States in the Field', United States Army General Order No. 100, (24 April 1963) Art. 28 (hereinafter Lieber Code).
70. H. Lauterpacht, 'The Limits of the Operations of the Law of War', (1953) 30 BYIL 206, 212.
71. F. Lieber, op. cit., fn. 59, Art. 59.
72. Ibid., Art. 22.
73. Trial of von Machensen, op. cit., fn. 27, p. 43.
74. A. R. Albrecht, loc. cit., fn. 35, p. 59, Albrecht considered the impact of the Nuremburg Trials and the Geneva Conventions of 1949 on the execution of belligerent reprisals, focusing on the prohibition of reprisals against civilians in occupied territory. Albrecht concluded that prohibiting reprisals against civilians in occupied territory would increase instances of illegality as frustrated occupation forces executed unlawful acts in response to partisan attacks.
75. Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter Geneva Convention of 1929).
76. R. H. Bailey, Prisoners of War (1982) 36, 112
77. the Wehrmacht Legal Division took the position that the Geneva Convention of 1929 did not apply to Polish and Soviet soldiers who should have been entitled to POW protection. Their legal reasoning was that Poland had ceased to exist as a state and the Soviet Union had not signed the Convention, ibid., pp. 11-14.
78. See generally, J. M. Bauserman, The Malmedy Massacre (1995)
79. see also H. Cole, The Ardennes: The Battle of the Bulge (2001)
80. A. De Zayas, The Wehrmacht War Crimes Bureau 1939-1945 (1989) 298 (receiving an order on 27 December 1944, not to take German prisoners. 'In a period of three or four days, Source saw one group of about 20 German prisoners "machine gunned."').
81. Hostage Trial, op cit., fn. 24, pp. 77-79.
82. See op. cit., fns. 4 and 5.
83. T. Meron, Crimes of War Project: Customary Law (2007). Available at ('There is considerable judicial and scholarly support, which is also endorsed by the international Committee of the Red Cross (ICRC), that the rules contained in the four Geneva Conventions of 1949 for the Protection of Victims of War and in the Hague Convention (IV) of 1907 on the Laws and Customs of War on Land (except for administrative, technical, and logistical provisions) reflect customary law.').
84. International Committee of the Red Cross, State Signatories, Ratification and Reservations to Additional Protocol I. Available at (last accessed 13 December 2007) (hereinafter State Reservations to Additional Protocol I).
85. Ibid.,
86. see also international Committee of the Red Cross, State Signatories without Ratification to Additional Protocol I. Available at (last accessed 13 December 2007).
87. See M. J. Matheson, 'The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions', (1987) 2 Am. U. J. Int'l and Pol'y 419, 427-428
88. see also A. D. Sofaer, 'The U.S. Decision Not to Ratify Protocol I to the Geneva Convention', (1988) 82 AJIL 784 (stating the US decision was due to the elimination of the distinction between lawful and unlawful combatants as well as the near total prohibition upon reprisals against civilians located in enemy territory).
89. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (hereinafter Geneva Convention IV); Art. 33 prohibits reprisals against 'protected persons [civilians] and their property'.
90. Additional Protocol I, op. cit., fn. 5, Art. 51(6).
91. H. S. Levie, The Code of International Armed Conflict, vol. 1, (1986) 114.
92. Additional Protocol I, op cit., fn. 5, Art. 53.
93. Ibid., Art. 54(2), (4).
94. Ibid., Arts. 55, 56
95. examples of installations containing dangerous forces are dams, dykes and nuciew power stations, ibid., Art. 56(1).
96. State Reservations to Additional Protocol I, op. cit., fn. 71.
97. International Committee of the Red Cross, UK Reservation Text, Art. g (2002). Available, at (hereinafter UK Reservation To Additional Protocol I).
98. State Reservations to Additional Protocol I, op. cit., fn. 71.
99. Amnesty International, Report 2006. Available at (last accessed April 2007).
100. Ibid.
101. Levie, op. cit., fn. 76, p. 114.
102. See infra notes 100 and accompanying text.
103. See op. cit., fn. 81 and accompanying text;
104. see also Albrecht, loc. cit., fn. 35, p. 600.
105. 'A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender or capitulation.' Lieber Code, op. cit., fn. 59, Art. 49, they are 'exposed to all the inconveniences as well as entitled to all privileges of a prisoner of war.'; the key consideration for the Lieber Code seems to be whether a combatant was attached to a hostile army, Art. 81: 'Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured they are entitled to all the privileges of a prisoner of war.'; however, '[m]en or squads of men, committing hostilities... without being part and portion of the organised hostile army, without sharing continuously in the war but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of semblance of peaceful pursuits... are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.'
106. Ibid., Art. 82.
107. 'Briefing on Geneva Convention, EPW's and War Crimes', DOD News, 7 April 2003. Available at (hereinafter DOD News Briefing) (interviewing W. Hays Parks, Special Assistant to Army Judge Advocate General).
108. Lieber Code, op. cit., fn. 59, Art. 49 (declaring a prisoner of war to be 'a public enemy armed or attached to the hostile army for active aid')
109. partisans wearing the uniform of the enemy army fighting behind the lines of the army are also entitled to prisoner of war protection, ibid., Art. 81.
110. Ibid., Arts. 82, 84 and 85.
111. The Laws and Customs of Land Warfare (Hague Convention IV) Arts. 1, 2 and 3
112. Geneva Convention, op. cit., fn. 65, Art. 1 (referring directly to the Hague Convention IV in its first article).
113. Ibid.
114. Geneva Convention III, op. cit., fn. 4, Art. 4.1.2.
115. Article 45 prohibits reprisals against 'the wounded, sick, personnel, buildings or equipment protected by the Convention'. 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (hereinafter Geneva Convention I); Art. 13 prohibiting reprisals against prisoners of war. Geneva Convention III, op. cit., fn. 4, Art. 13; Art. 33 prohibits reprisals against 'protected persons [civilians] and their property'. 1949 Convention Relative to the Protection of Civilian Persons in Time of War (hereinafter Geneva Convention IV).
116. Levie, op cit., fn. 76, p. 114.
117. Additional Protocol I, op. cit., fn. 5, Art. 44(3).
118. Ibid., Art. 44(4).
119. State Reservations to Additional Protocol I, op. cit., fn. 71.
120. Sofaer, loc. cit., fn. 73, p. 786.
121. Matheson, loc. cit., fn. 73, pp. 427-428.
122. Lieber Code, op. cit., fn. 59, Art. 88, 'A spy is a person who secretly, in disguise or under false pretence, seeks information with the intention of communicating it to the enemy. The spy is punishable with death by hanging by the neck, whether or not he succeeds in obtaining the information or in conveying it to the enemy.'
123. Additional Protocol I, op. cit., fn. 5, Art. 47.
124. Convention with Respect to the Laws and Customs of War on Land, Art. 29 (hereinafter Hague Convention II).
125. USC Section 700 (2006). Spies captured outside military jurisdiction are liable to punishment in civil courts under the espionage laws. 18 USC Section 794 (2006).
126. Hague Convention II, op. cit., fn. 104, Art. 29.
127. Ibid.
128. Ibid., Art. 31.
129. Additional Protocol I, op. cit., fn. 5, Art. 46(3).
130. Ibid.
131. Law of Land Warfare, op. cit., fn. 7, para. 77.
132. Wesbster's Ninth Collegiate Dictionary (1991) 742.
133. The Geneva Conventions of 1949 did not mention mercenaries, and their status as combatants not part of the regular military of their nation or employer depends upon meeting the requirements under Art. 4. Geneva Convention III, op. cit., fn. 4, Art. 4.
134. Additional Protocol I, op. cit., fn. 5, Art. 47.
135. They are part of the country's armed forces, they are not paid substantially more than regular soldiers, and they are not recruited for one conflict. UK Defence Manual of Armed Conflict, op. cit., fn. 8, p. 47 n. 43.
136. See B. Kennedy, 'Soldiers of Misfortune: Mercenaries Play Major Roles in 20th Century Conflicts', CNN Interactive, (1989), Episode 17. Available at .
137. See G. Best, Humanity In Warfare (1980) 374-375 (arguing satirically that anyone who can actually meet the definition of mercenary in Additional Protocol I in light of all its exceptions 'should be shot and his defence lawyer with him.').
138. 'Death for War Dogs', Time, 12 July 1976 (covering the Luanda Trial in Angola which sentenced captured mercenaries to death or prison sentences ranging from 16 to 30 years).
139. When considering remedies to violations of the law of war, it is important to remember that lawful combatants have a legal right to assault and murder one another and destroy property used for the war effort. Therefore, an enemy who commits a violation of the law of war - an unlawful act - is not punished by a lawful attack on its forces.
140. There may be a greater moral satisfaction in targeting the command and control of a violating adversary, as commanders are responsible for maintaining the adherence of their forces with the law of war. E. J. Wallach, Law of War Interactive Casebook 4.1 (2007). Available at (discussing the duty of commanders to maintain the law of war among their subordinates).
141. Darcy, loc. cit., fn. 36, pp. 211-215.
142. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (hereinafter Chemical Weapons Convention).
143. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxic Weapons and on their Destruction (hereinafter Biological Weapons Convention).
144. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects. Available at (last accessed 11 April 2007) (hereinafter Banned Conventional Weapons Treaty)
145. see generally W. Hays Parks, 'Means and Methods of Warfare', (2006) 38 Geo. Wash. Int'l. L. Rev. 511 (discussing the conventional weapons conventions and reasoning behind banning certain conventional weapon systems).
146. Banned Convention Weapons Treaty, Protocol on Prohibitions or Restrictions on the Use of Mines, Booby- Traps, and Other Devices (Protocol II), Art. 3(2). 'It is prohibited in all circumstances to direct weapons to which this Article applies, either in offence, defence or by way of reprisals, against the civilian population as such or against individual civilians.'
147. Additional Protocol I, op. cit., fn. 5, Art. 44(4) (granting unlawful combatants the protection of prisoners of war but not the status).
148. Levie, op. cit., fn. 76, p. 114.
149. M. F. Noone, Jr., 'Applying Just War Jus in Bello Doctrine to Reprisals: An Afghan Hypothetical', (2001) 51 Cath. U.L. Rev. 27.
150. Cf. R. K. Goldman, Crimes of War Project: POWs or Unlawful Combatants (January 2002). Available at (suggesting that the Taliban as the government of Afghanistan should have been considered under Geneva Convention III Art. 4(1) and awarded protection as lawful combatants)
151. and E. J. Wallach, 'Afghanistan, Quirin, and Uchiyama, Does the Sauce Suit the Gander?', (2003) Army Lawyer 18 (suggesting that the Taliban could meet numerous Geneva Convention III classifications for protection during Operation Enduring Freedom and they should have been treated as lawful combatants)
152. with Lt. Col. Joseph P. 'Dutch' Bialke, 'Al-Qaeda and Taliban Unlawful Combatant Detainees, Unlawful Belligerency, and the International Laws of Armed Conflict', (2004) 55 A.F. L. Rev. 1 16 (restating the US government position by adding the requirement that a government must ensure that its forces comply with the law of war before gaining protection as lawful combatants)
153. see White House: Fact Sheet: Status of Detainees at Guantanamo, United States Policy (7 February 2002). Available at .
154. Law of Land Warfare, op. cit., fn. 7, para. 73 (determining that unlawful combatants are still 'protected persons' and entitled to basic rights)
155. 'The United States is not a party to Protocol I but has long viewed Article 75 as customary law, binding on all states.' A. Roberts, 'The Prisoner Question: If the U.S. Has Acted Lawfully, What's All the Furor About?', Washington Post, 3 February 2002, p. B01.
156. Additional Protocol I, op. cit., fn. 5, Art. 75(2).
157. Ibid., Art. 75(4) (No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognised principles of regular judicial procedure...).
158. State Reservations to Additional Protocol I, op. cit., fn. 71
159. see Sofaer, op. cit., fn. 73, pp. 785-787.
160. See Darcy, op. cit., fn. 36, p. 251.
161. A. D. Mitchell,'Does One Illegality Merit Another?, The Law of Belligerent Reprisals in International Law', (2001) 170 Mil. L. Rev. 155, 177.
162. Kalshoven, op. cit., fn. 2, p. 377.
163. See generally, Additional Protocol I, op. cit., fn. 5.
164. J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Vol. II: Practice (2005) 3504; the Red Cross' position seems to be confused with certain commentators stating that reprisals are prohibited and others stating they are possible subject to restrictions so strict to render it impossible to execute a lawtul reprisal.
165. Ibid.
166. See op. cit., fns. 130-133 and accompanying text.
167. Ibid.
168. Henckaerts and Doswald-Beck, op. cit., fn. 138, p. 3503.
169. D. Fleck, The Handbook of Humanitarian Law in Armed Conflicts (1995) 204-205.
170. See infra note 151 and accompanying text.
171. US Department of the Navy, The Commander's Handbook on the Law of Naval Operations (NWP 1-14M) 6.1 (1995) (hereinafter Law of Naval Operations).
172. Kalshoven, op. cit., fn. 2, pp. 193-200, Kalshoven believed that FFI forces in 1944 were meeting the Geneva Convention of 1929 for protection.
173. Ibid.
174. Ibid.
175. The possibility of the United States or the Iraqi government executing reprisals does not support the proposition that only states are capable of suffering violations of the law of war or executing lawful reprisals. In particular, death squads operating from within the Iraqi government were heavily involved in the sectarian fighting which occurred after the bombing of the Samara Golden Mosque in February 2006, E. Knickmeyer and K. I. Ibrahim, 'Bombing Shatters Mosque in Iraq: Attack on Shiite Shrine Sets of Protests, Violence', Washington Post, 23 February 2006, p. A01; Iraqi insurgents while undeniably responsible for their own violations of the law of war may well have a significant cause for reprisals. The doctrine of belligerent reprisals does not concern itself with which combatants are capable of executing reprisals, however the minimum requirement to execute a lawful reprisal must be in compliance with the law of war. A combatant cannot enforce the law if they do not obey it themselves.
176. 'Iraqs Death Squads', Washington Post, 4 December 2005, p. B06.
177. Y. Dinstein, 'Comments on Additional Protocol I', (1997) 320 Int. Rev. of the Red Cross 515, 517. Available at .