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State practice establishes this rule as a norm of customary international law applicable in international armed conflicts. A belligerent reprisal consists of an action that would otherwise be unlawful but that in exceptional cases is considered lawful under international law when used as an enforcement measure in reaction to unlawful acts of an adversary. In international humanitarian law there is a trend to outlaw belligerent reprisals altogether. Those that may still be lawful are subject to the stringent conditions set forth below. In the course of the many armed conflicts that have marked the past two decades, belligerent reprisals have not been resorted to as a measure of enforcing international humanitarian law, the main exception being the Iran–Iraq War, where such measures were severely criticized by the UN Security Council and UN Secretary-General (see infra). The trend towards outlawing reprisals, beyond those already prohibited by the Geneva Conventions, can be seen in a UN General Assembly resolution on basic principles for the protection of civilian populations in armed conflicts adopted in 1970, which stated that “civilian populations, or individual members thereof, should not be the object of reprisals”.
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The reticence of States to resort to reprisals can be explained by the fact that they are ineffective as a means of enforcement, in particular because reprisals risk leading to an escalation of violations. As stated by Kenya’s LOAC Manual, “reprisals are an unsatisfactory way of enforcing the law.
They tend to be used as an excuse for illegal methods of warfare and carry a danger of escalation through repeated reprisals and counter reprisals.” Several other military manuals, as well as other practice, similarly warn of the risk of escalation. Still others underline the limited military advantage gained by using reprisals. During the negotiation of Additional Protocol I, a number of States asserted that resort to reprisals ought not to be allowed at all. Dolzhnostnaya instrukciya medsestri dnevnogo stacionara. Others stated that they were a very questionable means of securing enforcement. Several States prohibit reprisals altogether. Others state that they may only be taken against combatants and military objectives. There is also national case-law, as well as official statements, to the effect that reprisals must not be inhumane.
This requirement was already set forth in the Oxford Manual and recently restated, albeit in different terms, in the Draft Articles on State Responsibility. The reticence to approve of the resort to belligerent reprisals, together with the stringent conditions found in official practice, indicates that the international community is increasingly opposed to the use of violations of international humanitarian law as a method of trying to enforce the law. It is also relevant that there is much more support these days for the notion of ensuring respect for international humanitarian law through diplomatic channels than there was in the 19th and early 20th centuries, when the doctrine of belligerent reprisals as a method of enforcement was developed.
In interpreting the condition that reprisal action may only be taken as a measure of last resort, when no other possibility is available, States must take into account the possibility of appealing to other States and international organizations to help put a stop to the violations (see also commentary to Rule 144). There is limited practice allowing reprisals against allies of the violating State but it dates back to the arbitration in the Cysne case in 1930 and to the Second World War. Practice since then appears to indicate that resort to such reprisals is no longer valid. According to the Draft Articles on State Responsibility, countermeasures are legitimate only “against a State which is responsible for an internationally wrongful act”. This element of responsibility is also reflected in some military manuals. However, whereas most military manuals remain silent on the question of reprisals against allies of the violating State, Italy’s IHL Manual expressly states that a reprisal can, “as a general rule, only be directed against the belligerent that violated the laws of war”.