International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
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International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 247. Whereas reprisals in time of peace are to be distinguished from
retorsion and are injurious acts committed for the purpose of compelling
a State to consent to a satisfactory settlement of a difference created
through an international delinquency,[471] reprisals between
belligerents are retaliation of an illegitimate act of warfare, whether
constituting an international delinquency or not, for the purpose of
making the enemy comply in future with the rules of legitimate warfare.
Reprisals between belligerents are terrible means, because they are in
most cases directed against innocent enemy individuals, who must suffer
for real or alleged offences for which they are not responsible. But
reprisals cannot be dispensed with, because without them illegitimate
acts of warfare would be innumerable. As matters stand, every
belligerent and every member of his forces knows for certain that
reprisals are to be expected in case they violate the rules of
legitimate warfare. And when nevertheless an illegal act occurs and is
promptly met with reprisals as a retaliation, human nature would not be
what it is if such retaliation did not act as a deterrent against a
repetition of illegitimate acts.
[Footnote 471: See above, §§ 33 and 42.]
[Sidenote: Reprisals admissible for every Illegitimate Act of Warfare.]
§ 248. Whereas reprisals in time of peace are admissible for
international delinquencies only, reprisals between belligerents are at
once admissible for every and any act of illegitimate warfare, whether
the act constitutes an international delinquency or not. It is for the
consideration of the injured belligerent as to whether he will at once
resort to reprisals, or, before doing so, will lodge complaints with the
enemy or with neutral States. Practically, however, a belligerent will
rarely resort at once to reprisals, provided the violation of the rules
of legitimate warfare is not very grave and the safety of his troops
does not require prompt and drastic measures. Thus, the Germans during
the Franco-German War frequently by way of reprisal, bombarded and fired
undefended open villages where their soldiers were treacherously killed
by enemy individuals in ambush who did not belong to the armed forces.
And Lord Roberts, during the South African War, ordered[472] by way of
reprisal the destruction of houses and farms in the vicinity of the
place where damage was done to the lines of communication.[473]
[Footnote 472: See section 4 of the Proclamation of June 19, 1900
(Martens, _N.R.G._ 2nd Ser., XXXII. p. 147), and Beak, _The Aftermath of
War_ (1906), p. 11.]
[Footnote 473: That prisoners of war may be made the objects of
reprisals for acts of illegitimate warfare committed by the enemy, there
is hardly any doubt; see Beinhauer, _Die Kriegsgefangenschaft_ (1910),
p. 74.]
[Sidenote: Danger of Arbitrariness in Reprisals.]
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