Belligerent Reprisals Series – Concluding Thoughts

The posts by Stuart Casey-Maslen and Veronika Bílková (in addition to previous ones written on the topic by Michael Schmitt and Lindsay Moir) have shed light on several aspects associated with belligerent reprisals, stressing the many difficult questions that continue to interrogate scholars, militaries and decision-makers alike. In this concluding post, I will reflect on the wider policy implications of formalizing belligerent reprisals under the reciprocity framework instead of the enforcement one, and therefore of interpreting them as tools to establish and maintain the equality of rights and obligations between parties to armed conflict rather than as means of ensuring compliance with IHL.

Be Mindful about the Cost of Belligerent Reprisals

First, it should be remembered that, irrespective of the formalization of belligerent reprisals that is eventually adopted, these measures presuppose the illegality of the conduct of which they comprise. In that sense, they sacrifice a value otherwise protected under IHL in the name of either the re-affirmation of the law (under the enforcement paradigm) or the equality of the rights and obligations of belligerents (under the reciprocity one). In either case, reprisals will result in often irremediable harm to persons and objects that would otherwise be shielded from a certain war-time conduct.

Whatever formalization is espoused, it is primarily concerned with legal theory and it should not be taken as an invitation to adopt more retaliatory breaches of the laws of war. Let there be no misunderstanding here. By trying to properly understand reprisals, I do not want to defend, let alone legitimize their use; the purpose is merely to provide the groundwork and the necessary conditions for a better regulation of these measures. Formalizing belligerent reprisals under IHL may give us the tools to interpret, govern, and assess the adoption of these measures, but it does not imply that retaliating against enemy breaches of IHL is a good thing.

Needless to say, in the vast majority of cases tit-for-tat is actually the opposite. It may be legally justified, it may even achieve the objectives attached to it, but this does not detract from the price paid by the targets of the measure (as well as, potentially, by the party adopting it). Whereas the risk of the enforcement paradigm is to legitimize belligerent reprisals, the risk of the reciprocity one is to see retaliation (however justified) merely as a function of the interest of the parties to the conflict. Irrespective of the solution, the cost of belligerent reprisals (in terms of human life, suffering, and destruction) should not be overlooked. It should be carefully weighed against the benefits (if any) that may accrue from their adoption.

Additionally, it is important to resist another false equation. Just as the proposal for a new formalization of belligerent reprisals does not in any way imply a validation of these measures, it must be stressed that a reciprocity-inspired reading of reprisals would not necessarily lead to more retaliatory breaches of IHL than an enforcement-based one. For decades, scholarship has indulged in the idea that belligerent reprisals have an enforcement function, turning the self-interest of belligerents (their legitimate aspiration that the adversary plays by the same rules) into a guarantee for the continued cogency of the legal system (the purported aim of ensuring compliance with IHL).

While this strategy was undoubtedly meant to restrict the phenomenon of reprisals, it may have arguably had the side-effect of legitimizing recourse to these measures, and contributed to consolidating their role even when respect for IHL is a strategic priority. Against this background, it cannot be taken for granted that the enforcement paradigm is necessarily synonymous with less (as opposed to more) retaliation. Conversely, acknowledging the grounding of belligerent reprisals in the reciprocity paradigm forces us to recognize the true features of these measures, the dynamics that govern their taking, and the values that the legal order protects through their adoption. In this analysis, a clear assessment of the function of belligerent reprisals is inseparable from an acknowledgement of the costs that they entail. Only such a reality check will give us the tools to fine tune their legal regulation, assess their pros and cons from a political and moral viewpoint, and determine their place (if any) in any future regulation of armed conflict. An abrupt eye-opener for sure, but the only one that paves the way to meaningful reform.

The Resilience of Reprisals: Less Paradoxical Than It Seems

Second, in recent decades several attempts have been made at restricting the scope for permissible reprisals, whether: by interpreting expansively the wording of treaty commitments; by arguing for the crystallization of customary prohibitions; by stressing the bearing of human rights law; or again by challenging the application of the notion in certain contexts. However laudable, all these operations were premised on the single idea that belligerent reprisals have exhausted their role, and that they no longer have a function under the current IHL framework. Unfortunately, this assumption (which flows from the understanding of reprisals as an enforcement tool) does not withstand careful analysis.

It is undeniable that reprisals result in extensive suffering and destruction amid those affected, and that they are a discomforting feature in the architecture built around IHL in more than one hundred and fifty years. However, this does not necessarily entail they do not serve a function enshrined in, and protected by, the legal order. It has often been argued (both in scholarship and case law) that belligerent reprisals continue to exist because (and to the extent that) other mechanisms to enforce IHL (such as formal enquiry procedures, the system of Protecting Powers, criminal prosecution, or the International Humanitarian Fact-Finding Commission) have not taken hold or are not effective enough.

However, this comment is misplaced. Belligerent reprisals continue to exist because they do have a function, one that, albeit controversial and obnoxious, is autonomous and markedly different from the one realized by enforcement mechanisms, and that is concerned not with inducing compliance but with negotiating and policing the equality of belligerents. This may be seen as an unpleasant finding to make, turning upside down longstanding, perhaps even reassuring legal constructs developed over decades of refinement. However, this is also the only result warranted by a careful appraisal of past and present practice and bringing to a uniform solution those elements to be found across different types of conflicts and actors. It is also the first step to avoid the repetition of a familiar script: one where the failure to legally formalize under a coherent theory the phenomenon of belligerent reprisals results in the inability by international law to curb retaliation in warfare. The question, then, is not if reprisals have a function, but rather if that function is still worth its price in terms of human life and suffering.

The Scope for Policy Initiatives: Where to Intervene

These considerations point to an important consequence in terms of policy strategy. Although strengthening tools for the enforcement of IHL is an important priority in and of itself, it alone would not suffice to substitute for the functions accomplished by belligerent reprisals. Rather, effective efforts to replace this long-standing feature of IHL should focus on creating avenues to constantly clarify and develop the law (also in relation to specific situations, and mostly for non-international armed conflicts) and to develop channels to exchange on the application and interpretation of IHL norms (also between belligerents during conflict).

These pathways to reform in the law of belligerent reprisals may sound even more idealistic than all previous attempts at outlawing the measures. Similarly, re-framing the conceptual framework of belligerent reprisals may look a rather convoluted way to rein in their adoption. Still, sound policy choices must be based on clear, honest, and disenchanted analysis of the issues before us. A proper understanding of the purpose of belligerent reprisals will give us the correct elements to embark on one of the herculean tasks still looming over IHL: whether to maintain this archaic but to some extent effective mechanism (perhaps with a different regulation), or to completely outlaw it. Only by comprehending and coming to terms with the real features of belligerent reprisals may we hope to govern such an elusive, yet ever-present feature of armed conflict.

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Dr Francesco Romani is a Research Fellow at the Geneva Academy of International Humanitarian Law and Human Rights. He is the author of Belligerent Reprisals from Enforcement to Reciprocity: A New Theory of Retaliation in Conflict (CUP, 2024).

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: Army 1st Lt. Tyler Williams