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Reprisal

reprisals international law illegal

The act of punishing another for some injury the latter caused. In terms of INTERNATIONAL LAW, a reprisal is the forcible taking, in time of peace, by the government of one country of the property or territory belonging to another country or belonging to the citizens of the other country, as redress intended to satisfy a claim.

Reprisals in international law contexts were clearly defined in the Naulilaa Case (Portugal v. Germany), 2 UN Reports Of International Arbitral Awards 1012 (Portuguese-German Mixed Arbitral Tribunal, 1928): "A reprisal is an act of SELF-HELP … by the injured state, responding—after an unsatisfied demand—to an act contrary to international law committed by the offending state….Its object is to effect REPARATION from the offending state for the offense or a return to legality by the avoidance of further offenses." The UN General Assembly in its 1970 Declaration on Principles of International Law declared, "States have a duty to refrain from acts of reprisal involving the use of force." Resolution 2625 (XXV).

There is a fine distinction between a "lawful reprisal," and an act of revenge or retaliation, which are always illegal under international law. Although reprisals are acts that normally would be considered illegal, circumstances can boost them into the realm of the legitimate. To be considered legitimate, reprisals must be taken in response to prior illegal attacks. A reprisal is a form of SELF-DEFENSE and can only be used as a last resort; it must be executed with the view of restoring a sense of equilibrium in international relations and ensuring future compliance with legal norms.

The notion of proportionality is important in reprisals. Any response from an aggrieved country must be proportional to the injury it sustained. For example, if an enemy uses an illegal weapon such as a chemical warhead, the concept of reprisal would permit the use of weapons that would "otherwise be unlawful in order to compel the enemy to cease its prior violation." In addition to concerns of proportionality, the methods of reprisals are also important considerations. For example, economic sanctions are generally illegal, but when they are used as a response to a prior illegal act, they are generally considered legally permissible.

Although it may seem warlike, a reprisal is not technically an act of war. Rather, it is done solely in response to conduct that violated international law. However, reprisals have the potential to provoke a war, which is why they are so strongly discouraged in international law. In fact, the Covenant of the League of Nations and the Charter of the UNITED NATIONS classify reprisals as acts endangering peace.

There are two broad categories of reprisals: forceful and non-forceful reprisals. Forceful reprisals include using arms; non-forceful reprisals include devices such as expelling ambassadors or imposing economic sanctions. Reprisal can only occur in situations arising between nation states. There is no legitimate reprisal against a non-state actor criminal, such as the head of an international terrorist organization or drug lord.

Since SEPTEMBER 11TH ATTACKS in 2001, the actions of the U.S. government and its allies as they prosecute the WAR ON TERRORISM have focused attention on the international law governing reprisals. The pursuit of Osama bin Laden and other individuals suspected of having ties to international terrorist organizations, have drawn criticism. Critics point out that Protocol I to the Geneva Conventions forbids reprisals against civilians and civilian property. The United States is not a party to Protocol I, however, and does not consider the conventions' prohibitions against reprisals directed at all civilians to be part of customary international law. On the other hand, the United States is a party to the Geneva Convention on Civilians and follows its provisions regarding reprisals against protected civilians and their property. Generally, a protected person is one who finds himself or herself "in the hands" of the opposing forces.

FURTHER READINGS

Green, L.C. 2000. The Contemporary Law of Armed Conflict. 2d ed. Manchester, UK: Manchester Univ. Press.

Rodin, David. 2002. War and Self-Defense. Oxford, UK: Clarendon.

Van der Wolf, René and Willem-Jan, eds. 2002. Laws of War and International Law. Nijmegen, Netherlands: Wolf Legal Publishers.

CROSS-REFERENCES

Restitution.

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