Reappraising Reprisals Against Enemy Civilians in Customary International Humanitarian Law

Abstract

Belligerent reprisals are a controversial and largely discredited mechanism for the enforcement of international humanitarian law. Additional Protocol i of 1977 prohibits a range of reprisal activity, including reprisals against enemy civilians. A (relatively small) number of States are not Parties to Additional Protocol i, whilst some States Parties have made declarations and/or reservations to the Protocol which could be seen as attempts to limit the operation of the prohibition. Its status as a rule of customary international law is therefore an important question. This article argues that opposition to the prohibition in customary law is neither as widespread nor consistent as has previously been suggested and that the weight of evidence points towards the existence (or development) of a customary prohibition. Consistent opposition by the UK and the US, however, makes it unlikely that the customary prohibition would be opposable to those particular States.