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Commentary - Prohibition of reprisals
    [p.241] Article 20 -- Prohibition of reprisals


    806 Article 46 of the first Convention prohibits reprisals "against the wounded, sick, personnel, buildings or equipment protected by the Convention", and Article 47 of the Second Convention prohibits them "against the wounded, sick and shipwrecked persons, the personnel, the vessels or the equipment protected by the Convention".

    807 In 1929 the prohibition of reprisals against prisoners of war was introduced.

    "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 [p.242] by implication from the principle of the respect to which they are entitled -- can only have been due to an oversight." (1)

    This oversight was corrected in 1949 when "the International Committee's proposal that the prohibition should be inserted in all four Conventions was approved unanimously without opposition of any sort". (2)

    808 The mention of the principle in Part II of the Protocol supplements the rule mentioned above, which is contained in each of the Conventions, for persons and objects protected by this Part, which were not yet covered by the first and Second Conventions.

    809 The Conventions include a list of the persons and objects covered. The Protocol has a more concise formulation. Protected persons include the wounded, sick and shipwrecked as well as medical personnel; as regards "objects", these cover medical units and ' matériel, ' as well as medical transports.

    810 The prohibition of reprisals is mentioned in Part II, because the negotiations which took place at the CDDH with regard to creating a single article dealing with this problem in the Protocol, were not successful. (3)

    811 Nevertheless, two further elements on this brief article are discussed below.

    812 The prohibition contained in this article is expressed very briefly and clearly and is absolute. Even unlawful acts committed by a Party to the conflict against protected persons or objects cannot justify similar acts by the adverse Party by way of reprisal. Nothing can ever justify reprisals against the persons and objects covered here.

    813 A proposal was made to replace the term "reprisals" by the expression "measures in the nature of reprisals" (4) with the view of encompassing in this way "all acts which might be called by any name but reprisals against the persons or objects protected by Part II". (5) However, an objection was made to this proposal stating that it was in danger of giving rise to confusion and that it would be better "to use the wording of the Geneva Conventions, which constituted a traditional and accepted concept". (6)

    814 In fact, Article 20 removes the only doubt that might remain with regard to the absolute character of the obligations imposed on Parties to the conflict with respect to persons and objects protected by Part II. Only reprisals indeed permit acts being committed which are "not normally legal", in that they are "regarded as being legal in the particular circumstances which exist at the time". (7) By prohibiting reprisals, the only justification a Party to the conflict might have used from a legal point of view for violating its obligations with respect to persons and objects protected here, is denied.

    [p.243] 815 The question of retortion is a different matter. This allows acts to be carried out which are unfavourable to the persons and objects protected, as a reaction to acts committed by the adverse Party. However retortion does not allow any violation of the law, even in exceptional cases. Thus this is only possible for a Party to the conflict which has accorded greater privileges than are required under the Protocol. Such a Party could indeed withdraw such privileges by way of retortion. But it may never fall short of the obligations laid down by the Protocol. To prohibit retortion would therefore be tantamount to laying down an unfounded rule in a field not covered by the Protocol. Certainly it might be desirable for the Parties to the conflict not to resort to retortion, just as one might wish that they would agree to grant the persons and objects protected more favourable treatment than the minimum required by the Protocol. However, it cannot be denied that a prohibition of retortion in the Protocol would have been rather inequitable, since it would tend to penalize in some way the most generous Parties to the conflict, the only ones in a position to practise retortion.

    816 As concluded in the commentary on Article 46 of the first Convention, which had also raised this problem, "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". (8) In this respect, Article 20 does not allow for any uncertainty either.

    ' Y.S. '


    NOTES
    (1) ' Commentary I, ' p. 344;

    (2) Ibid., pp. 343-345;

    (3) With regard to the historical background to this question and the situation as it is with the adoption of the Protocol, cf. introduction to Part V, Section II, infra, p. 973;

    (4) Cf. O.R. III, p. 97, CDDH/II/214;

    (5) O.R. XI, p. 197, CDDH/II/SR.20, para. 47;

    (6) Ibid. p. 197, para. 52;

    (7) ' Commentary I, ' p. 342;

    (8) Ibid., p. 347;