War reprisals (study by prof. N. Ronzitti)

[DrG]

In this thread I will provide the translation of the paragraph about reprisals written by prof. Natalino Ronzitti(short curriculum vitae, in Italian language: http://www.luiss.it/docenti/curricula/index.php?cod=188), one of the most important Italian experts of law of war, in pages 180-183 of his book "Diritto internazionale dei conflitti armati", Gappichelli, 2001. Notes between [] are mine.

The war reprisals

[Bibliography omitted, see the scans below]

Reprisals are acts normally illicit that become licit in reaction to a fault committed by the State against which the reprisal is directed. Unlike the reprisals inflicted in peace time, those of war consist in the violation of a rule of the war law in reaction to a violation committed by the adversary. They can be specific reprisals (the so-called reprisals in kind [in English in the original]), that consist in committing a violation identical to that committed by the adversary, or the measure inflicted as reprisal can consist in the violation of a rule different from that one violated by the adversary. In other words it is not necessary that the reprisal, to be a legitimate one, must be "specific". Also because sometimes the belligerent commits a violation of the war law (for example the killing of prisoners of war) to which it is forbidden to react with a specific reprisal, because there are some categories of reprisals that are expressively forbidden.
Opposing argumentations in favour and against war reprisals have been put forward. According to someones, an absolute prohibition of reprisal might induce the belligerent to violate the war law with impunity. The reprisals operate as a kind of "dissuasion". It is affirmed that the adversary is not "dissuaded" enough from committing a violation of war law by the possibility that penal sanctions will be inflicted to the people responsible of the "serious infractions". Generally these [sanctions] are inflicted when the war has ceased and de facto they are made by the winner towards the loser. Instead reprisal, being immediate, represents a strong coefficient to induce the adversary to respect the war law. The rules of war law must be respected during the war. Reprisal is a mechanism of guarantee that has its application during the war and not when the hostilities have ceased, as instead as a rule it happens with the mechanism relative to the penal sanctions.
Against the oportunity of reprisals have been put forward the following argumentations. It has been said that reprisals are guarantees that, most of times, work in one way only, in other words they are unilateral guarantees. In fact, in case of disparity of forces, only the stronger adversary can resort to reprisals, whose execution ends up by causing sufferings to innocent people. Reprisals, moreover, usually cause counter-reprisals, because the adversary to whom they are directed denies of having violated the rules of war law. Thus they cause an "escalation" and a "barbarization" of the conflict.
At the diplomatic conference that has redacted the Additional Protocol I [to the Geneva Conventions of 12 August 1949, 8 June 1977] the current of thought contrary to war reprisals ended up by prevailing. It is possible to find seven provisions in the Additional Protocol I that contain a prohibition to reprisal against protected goods. They are provisions that in some cases extend the prohibition to certain reprisals already forbidden by preceding instruments; in other cases they add new prohibitions. The art.20 interdicts reprisals against persons and goods protected in the Title II of the Protocol I (wounded, ill and shipwrecked). The provision represents a substantial improvement of the art.46 of the I Geneva Convention and of the art.47 of the II Convention. In fact, in the Protocol I, the notion of protected persons and goods (in other words wounded, ill and shipwrecked) is more extended than in the one contained in the I and II Convention. The prohibition of reprisal, in the Protocol I, is extended also to the persons who are not directly connected to the armed forces. The art.51, paragraph 6, forbids reprisals whose object are "attacks" on the civilian population or civilians. It represents a notable improvement with respect to the art.33, paragraph 3 of the IV Geneva Convention, because this provision forbids only reprisals against civilians of the occupied territories. The same comments are valid for the art.54, paragraph 4, that forbids the reprisals against goods indispensable for the survival of the civilian population. Art.33, paragraph 3 of the IV Convention, in fact, forbids only reprisals against the properties of persons of occupied territories. Art.53 of the Protocol I interdicts reprisals against cultural goods and places of religion. Also in this case it is reaffirmed and probably extended the prohibition already contained in the art.4, paragraph 4 of the Hague Convention of 14 May 1954. With respects to the Geneva Conventions of 1949 two new prohibitions have been disposed: reprisals that have as object "the natural enviroment" (art.55, paragraph 2), and those against works and installations containing dangerous forces (art.56, paragraph 4). For what concernes the prisoners of war, the fundamental provision of the art.13, paragraph 3 of the III Geneva Convention remains, according to it the measures of reprisal against prisoners of war are forbidden. It has to be added that the Convention of 1993 about the interdiction of chemical weapons (art.1) and that of 1997 about anti-personnel mines (art.1) forbid unequivocally the use of such weapons as reprisal.
During the diplomatic conference that led to the Additional Protocol I, Poland tried to insert an emendament tending to the forbidding all reprisals. But the emendament was retreated. This stays to demonstrate that the prohibitions contained in the Protocol I (or in other international instruments) cannot be considered the beginning of a process tending to put in desuetude the consuetudinary law regarding reprisals: these ones, where not expressively forbidden by specific prohibitional rules, must be considered licit. Practically, reprisals are admitted only towards combatants and against goods that are military objectives. The Manual of the US Navy gives, as examples of legitimate reprisals, a declaration in which it is affirmed that no quarter will be granted or the use of incendiary weapons in violation of the Protocol III regarding the inhuman weapons.
We have to keep in mind that Italy, ratifying the Additional Protocol I, has made a declaration in which it affirms that "it will react to an enemy's series and sistematic violations of the obligations imposed by the Additional Protocol I and in particular by the articles 51 and 52 with all the means ammitted by the international law to prevent further violations". Thus with this declaration it has been reaffirmed the right of reprisal, within the limits in which it is allowed by international law.

[DrG]

And this is the last page:

[David Thompson]

Thanks for that article, DrG.

Readers interested in the issue of reprisals may find one or more of these threads useful:

"Other" war crimes -- Reprisals
http://forum.axishistory.com/viewtopic.php?t=14263
The Nazis in Rome - The Ardeatine Caves Massacre
http://forum.axishistory.com/viewtopic.php?t=27453
The Crime of Erich Priebke
http://forum.axishistory.com/viewtopic.php?t=32883
Italian terrorist guerrillas bomb attack at Via Rasella, 1944
http://forum.axishistory.com/viewtopic.php?t=45840
Nazi anti-partisan reprisals in Italy 1944
http://forum.axishistory.com/viewtopic.php?t=34951
Is revenge shooting allowed?
http://forum.axishistory.com/viewtopic.php?t=28438
Anti-partisan warfare and the "Hostage Case"
http://forum.axishistory.com/viewtopic.php?t=54441
Are reprisals always war crimes?
http://forum.axishistory.com/viewtopic.php?t=57935
Nazi Reprisals and "communist insurrection" 9/41
http://forum.axishistory.com/viewtopic.php?t=61092
Documents on German reprisals in WWII Greece
http://forum.axishistory.com/viewtopic.php?t=61241
Anti-partisan warfare and reprisals in WWII Yugoslavia
http://forum.axishistory.com/viewtopic.php?t=60988

[DrG]

Thank you David Thompson. By the way, I've just made a few corrections, mostly spelling mistakes (anyway, nothing really relevant) and added a link to a short curriculum vitae of prof. Ronzitti present in the site of his University.

[DrG]

Update: the link to prof. Ronzitti's cv isn't correct anymore (strangely, it is now the cv of a different professor). The correct link to his personal page in LUISS University is: http://docenti.luiss.it/ronzitti/.

Guido

[David Thompson]

Thanks, DrG.