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Commentary - Art. 46. Chapter VIII : Execution of the convention
    ARTICLE 46 -- PROHIBITION OF REPRISALS


    1. ' General '

    Reprisals, in international law, are acts committed by a State to the prejudice of another State in order to put an end to offences committed [p.342] by the latter to the prejudice of the former, or to obtain reparation for them. The acts in question are not normally legal, but they are regarded as being legal in the particular circumstances which exist at the time. We may take, as an example, the action of a belligerent who makes use of poisoned weapons, which are prohibited under Article 23 of the Hague Regulations of 1907 , in reply to similar action by his adversary. A distinction is generally made between reprisals and retortion; the latter is also a form of retaliation, but the measures taken do not break the law, and are in reply to acts which are themselves generally admitted to be lawful. The acts in question on both sides are matters within the competence of the States concerned. A case of retortion would, for example, be the withdrawal by one belligerent from retained personnel of privileges accorded over and above those accorded under the Convention, where the adverse Party had withdrawn privileges, whether in the same or in another connection, from the corresponding personnel in his hands.
    The majority of jurists regard reprisals as a means of coercion under international law; as such, they are an example of the inorganic character of international law, inasmuch as they allow each State to take the law into its own hands.
    Major wars have the general effect of paralysing the more highly developed institutions of international society, and in particular the legal processes which enable States to assert their rights without resorting to reprisals. Reprisals accordingly assume increased importance in time of war, and further become more dangerous, since experience has shown that the freedom left to belligerents to make use of them as a means of coercion may easily lead, in the tension of war psychology and by an inevitable train of events, to serious abuses, while at the same time completely failing to attain its object -- namely, the reassertion of rights.
    Attempts were accordingly made, first at the Brussels Conference of 1874 and later by the Institute of International Law meeting at Oxford in 1880, to regulate reprisals. The Institute in its Manual of the Laws of War on Land laid down, in particular, that they "must conform in all cases to the laws of humanity and morality". (1)
    In spite of this call for humanity in the application of reprisals, the reprisals in the First World War involved so much increased hardship [p.343] for the victims of the conflict -- in particular, prisoners of war -- that the idea of finally prohibiting all reprisals against the latter continued to gain ground, and found official endorsement in special agreements concluded between belligerents towards the end of the war. The idea had already been voiced by the International Red Cross Conference of 1913, and had been again brought to the notice of the belligerents by the appeal of the International Committee of the Red Cross in 1916. (2) It was proposed at the Diplomatic Conference which drew up the Geneva Conventions of 1929 that reprisals should be authorized in exceptional cases, but that the Protecting Power should at the same time be charged with the elimination, if possible, of the causes of such reprisals; but in the end the Conference adopted the rule that reprisals against prisoners of war must be prohibited in all
    circumstances, and thus introduced a principle of international law of far-reaching significance.
    In the Second World War this rule was generally observed, thanks (it must be said) to incessant efforts by the Protecting Powers and the International Committee of the Red Cross to eliminate both the effects and the causes of reprisals. During the preliminary work on the revision of the 1929 Conventions certain of the Government experts recognized the ineffectiveness of recourse to such measures as a means of protecting nationals who have fallen into the hands of the enemy (3), and the International Committee's proposal that the prohibition should be inserted [p.344] in all four Conventions was approved unanimously without opposition of any sort.
    The fact that this prohibition was not also inserted in 1929 in the Convention dealing with the wounded and sick -- not explicitly, that is to say, for it follows by implication from the principle of the respect to which they are entitled -- can only have been due to an oversight. The public conscience having disavowed reprisals against prisoners of war, that disavowal is a fortiori applicable to reprisals against military personnel who, like the wounded and sick, are defenceless and entitled to protection.
    To fill the gap, the Commission of Experts convened by the International Committee of the Red Cross in 1937 to study the revision of the Geneva Convention of 1929, advocated a clause prohibiting reprisals, not only against medical personnel and the wounded and sick, but also, by a logical extension, against material and property intimately bound up with the safeguarding of those concerned. This idea appeared to the Commission to be in accordance with the principle already enunciated that the Convention was applicable "in all circumstances". (4)
    The Commission of 1937 did not at the time decide where exactly the new clause was to appear in the Convention. It left the point for decision by the Diplomatic Conference, and the latter adopted the arrangement in the International Committee's draft, which placed the clause in the Chapter dealing with the execution of the Convention; the Conference rightly decided, however, to make the clause into a separate Article.
    One would certainly have liked to see a principle of such importance placed at the beginning of the Convention among the other fundamental principles. But the necessity, on the one hand, of avoiding changes in the arrangement of Articles in Chapter I, which was common to all four Conventions, and on the other hand, of inserting the principle at a point where it could cover the whole body of persons and property to which it was to apply, led to the clause being left where it appeared in the draft, i.e. in Chapter VIII. It is desirable that it should, at any rate, be restored to its proper place when the Convention is being studied or disseminated.

    [p.345] 2. ' Scope of the provision '

    The prohibition of reprisals is absolute, and remains so when an offence, which would formerly have justified reprisals under international law, is committed -- no matter what the nature of the offence may be.
    When the offence has no connection whatsoever with persons or property covered by the Geneva Convention -- for example where one of the belligerents violates the rule prohibiting the pillage of a locality -- it is, as a rule, readily agreed that retaliation, if any, by the adverse Party cannot be against the wounded and sick or the medical personnel in his hands. On this point the prohibition is in full accordance with public sentiment, as reflected, in the attempts to produce rules governing reprisals, by the principle of proportionate action.
    But the prohibition goes further than that. It applies equally to a form of reprisals which public opinion, basing itself on the ' lex talionis, ' would be more readily inclined to accept -- namely, reprisals against persons or property protected by the Geneva Convention, where such reprisals are in reply to an offence of the same nature. A belligerent may sometimes be tempted to reply to an offence by taking identical, or at any rate similar, action. The temptation may be increased -- quite mistakenly -- by a desire for rapid results, or by the pressure of excited public opinion, or even by the opinion of jurists who regard reciprocity as the basis of humanitarian law. (5)

    A. ' Theoretical and practical justification of the prohibition of reprisals. ' -- The Government concerned should therefore realize, and make its population realize, that recourse to reprisals exposes protected persons on each side of the conflict to the risk of rapid and disastrous increases in the severity of the measures taken against them, and that it is essential to resort instead to the various means afforded by the Convention for the settlement of differences (good offices of the Protecting Powers, enquiry procedure, etc.). The Government concerned must also insist on the formal and absolute nature of the obligation it assumed on becoming a Party to the Convention, and on the fact that to violate the latter with [p.346] the idea of asserting one's rights is only to add a further offence of one's own to the offence for which the enemy is blamed.
    It should also be remembered, and brought home to others, that one reason why the Convention was able to exclude the traditional system of reprisals was that it introduced in their place more advanced methods of asserting rights -- in particular, control by the Protecting Powers and the universal obligation to punish individuals responsible for grave breaches. And quite apart from legal measures, there are certain other means, such as an intensification of the war or appeals to neutral public opinion, by which a belligerent can reply to breaches by the adverse Party.
    The ability of a Government to resist the forces which urge it to resort to reprisals, will therefore depend on the extent to which its public has been informed, in advance, of the underlying reasons which have led to the prohibition of reprisals in the humanitarian Conventions, and, above all, of the new character which this prohibition, in conjunction with other principles, has given these Conventions.
    The prohibition of reprisals is in fact closely connected, as the 1937 Commission realized, with those provisions (such as Articles 1 , 6 and 7 ) which, by affirming the applicability of the Convention "in all circumstances", have changed its character. For, thanks to those Articles, the Convention is no longer a legal instrument dependent on the will of States and subject to considerations of reciprocity, but is essentially concerned with human rights. When once the authors of the Convention had presented it as a corpus of inalienable rights conferred upon the wounded and sick and upon medical personnel, there could no longer be any question of those rights being liable to withdrawal or restriction as a result of a violation with which the above persons had absolutely nothing to do.
    Reprisals were, in short, a collective punishment inflicted on those who least deserved it. In future it is the author of the offence who is to be punished. The penalty is no longer collective, but individual. The cardinal importance of the step forward marked by the new Geneva Conventions will be apparent.

    B. ' Scope of the prohibition in the case of retortion. ' -- One last point calls for comment. A distinction was made at the beginning of the commentary on the present Article between reprisals and measures of [p.347] retortion. Should the Article be interpreted as applying equally to the latter?
    As already stated, retortion is, in principle, only concerned with acts which are in themselves lawful. Suppose, for example, that in two opposing countries medical personnel have been granted certain privileges over and above the treatment to which they are entitled under the Convention. If one of the two countries withdraws these privileges, is the other entitled to do the same by way of retortion? It has already been pointed out that the treatment to be accorded to protected persons is not a question of reciprocity, and the International Committee of the Red Cross has always endeavoured to bring the conditions in which they live up to the most favourable, and not down to the least favourable, standard. It would therefore appear to be desirable that measures of retortion should also be banned in this connection.
    What matters most, however, is that there should be no infringement of the rules of the Convention, that is to say, no interference with the rights of the persons protected, considered as a minimum. In the case of benefits which go beyond this minimum, it is admissible that a belligerent should not agree to accord them except on a basis of reciprocity. There might even be a risk of discouraging the granting of such benefits, if it were insisted that they should in no case be subject to retortion. It therefore appears more prudent to conclude that Article 46 applies only to reprisals as defined at the beginning of the commentary on the present Article.


    * (1) [(1) p.342] See ' Resolutions of the Institute of
    International Law, ' Oxford Session of 1880, The Laws of
    War on Land, Articles 85 and 86;

    (2) [(1) p.343] The following is the substance of this
    memorable appeal: "Where a belligerent has reason to
    believe that his soldiers in the hands of the enemy are
    not being treated as they should be, or that one of them
    appears to have been wrongly convicted, he does not
    attempt to appeal to the generosity of his adversary. Nor
    does he appeal to neutrals to put considerations of
    humanity and justice to his enemy. No! He resorts at once
    to the ' lex talionis '-- and that, in a measure exceeding
    his own grievances. He wishes his reprisals to be so
    severe that his adversary will be forced to give way; and,
    if the latter responds instead by increased severity, he,
    in his turn, will be more severe still. The result is, as
    we see today, that reprisals against prisoners become a
    barbarous form of auction, the motive of which is
    vengeance, while the price is paid by defenceless and
    innocent men until such time as their cry of suffering
    induces the authorities in their home country to give way,
    and cancel the measures they have taken against the
    prisoners in their hands. The fact that reprisals of this
    kind are often based on inaccurate information makes them
    all the more cruel and unjust". For particulars of the
    action taken by the International Committee of the Red
    Cross in regard to reprisals in the First and Second World
    Wars, see ' Report of the International Committee of the
    Red Cross on its activities during the Second World War '
    (September 1, 1939 -- June 30, 1947), Vol. 1, pages
    365-372;

    (3) [(2) p.343] See ' Report on the Work of the Conference of
    Government Experts for the Study of the Conventions for
    the Protection of War Victims ' (Geneva, April 14-26,
    1947), Geneva, 1947, page 188;

    (4) [(1) p.344] See ' Report on the Interpretation, Revision
    and Extension of the Geneva Convention of July 27, 1929, '
    submitted by the International Committee of the Red Cross
    to the XVIth International Red Cross Conference (London,
    1938), pages 32-33;

    (5) [(1) p.345] For example, Alfons Waltzog, in his work
    ' Recht der Landkriegsführung, ' Berlin, 1942, justifies
    reprisals against prisoners of war in spite of the
    prohibition of 1929, even when the offence leading to the
    reprisals was of an entirely different nature;