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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
. -- PROHIBITION OF REPRISALS
1. ' General '
The Second World War served to confirm the conclusions already drawn from the 1914-1918 conflict: in the psychological tension of war and by an inevitable train of events, resort to reprisals may often lead to serious abuses, while at the same time completely failing to attain the object -- namely the reassertion of [p.253] rights (1). We shall not go here into all the complex aspects of the question of reprisals in international law, but it may be noted that during the second half of the XIXth century, every effort was made to remind all concerned that recourse to such an extreme measure in war-time must not lead to a violation of fundamental principles. Thus, in its Manual of the Laws of War on Land, drawn up in 1880, the Institute of International Law laid down in particular that reprisals "must conform in all cases to the laws of humanity and morality (2)."
Besides this effort aimed at limiting the means of legal recourse constituted in theory by reprisals, another more radical tendency became apparent after the First World War. That was the absolute prohibition of reprisals against certain categories of war victims, first introduced into humanitarian law by the 1929 Prisoners of War Convention. This great step forward was motivated by the memory of the useless suffering which prisoners of war had endured during the First World War, when measures of reprisal were systematically applied.
It seems strange that the 1929 Diplomatic Conference should not also have included this express prohibition in the Wounded and Sick Convention; the public conscience having disavowed reprisals against prisoners of war, that disavowal is a fortiori applicable to reprisals against military personnel like the wounded, sick and shipwrecked, who are defenceless and particularly worthy of protection.
The omission must have been due to an oversight. Moreover, one might justifiably assert that the prohibition is already implicit in that Convention and in particular in the phrase "in all circumstances" which was inserted in 1929 in the Article on the respect due to the wounded and sick.
[p.254] Be that as it may, the gap was filled in 1949 when the First Geneva Convention was under study, and the new provision concerning reprisals was naturally included also in the Second Convention.
One would certainly have liked to see a principle of such importance placed at the beginning of the Convention among the other fundamental principles. It was placed in Chapter VII purely for reasons of general order, but it was in no way the intention of the authors of the Convention to deprive it of any of its importance, which is ' essential '.
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 the illicit destruction of a fishing fleet -- it is 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 response 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 (3).
[p.255] 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 the idea of reasserting 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 the population 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 the Conventions.
The prohibition of reprisals is in fact closely connected, as was realized by the Commission of Naval Experts convened by the International Committee of the Red Cross in 1937, 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 the States and subject to considerations of reciprocity, but is essentially concerned with human rights. When once the authors of the Convention [p.256] 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 is 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. Should the Article be interpreted as applying equally to measures of retortion?
Unlike reprisals, retortion is in principle concerned only 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 those 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 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 that minimum, it is admissible that a belligerent should not agree to accord them except on the 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 47 applies only to reprisals as defined at the beginning of the commentary on the present Article.
* (1) [(1) p.253] In regard to maritime warfare, see especially
the Order issued by the German Government on January 29,
1917, which stated that all hospital ships bearing the red
cross emblem would be considered as warships and would be
attacked and sunk as such in a specified area of the
Channel and the North Sea (' Bulletin international de la
Croix-Rouge, ' 1917, pp. 140, 260, 384). See also, in
regard to the Second World War, ' Revue internationale de
la Croix-Rouge, ' 1944, p. 2. During the Second World War,
however, it would seem that most of the attacks made on
hospital ships were usually due to inadequate marking (see
' Report of the International Committee of the Red Cross
on its activities during the Second World War, ' Vol. I,
(2) [(2) p.253] See Oxford Manual, Articles 85 and 86;
(3) [(1) p.254] For example, Alfons WALTZOG, in his work
' Recht der Landkriegsführung, ' Berlin 1942, justifies
reprisals against prisoners of war despite the prohibition
of 1929, even when the offence leading to the reprisals
was of an entirely different nature;