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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
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
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
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
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
[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,
does not allow for any uncertainty either.
' Y.S. '
(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;