Reprisal

REPRISAL. - Generally speaking, a reprisal is a coercive measure by which it is intended to settle a question of law that could not be resolved by peaceful means.

The origin of the reprisal goes back very far in time. The most plausible common opinion holds that it derives from the Germanic feud, which, having lost its form of private vengeance among the citizens of the same State, in the Middle Ages remained in force only among the members of different communities. At first left to private initiative, it was gradually subjected to a legal regime. Already from the 9th century the first attempts to regulate its use are noticeable. Specific laws forbid the private individual to resort to acts of reprisal without the prior authorization of the community, to which such authorization belongs, and special treaties establish that the permission must not be granted unless the authority to which the offender is subject has first been notified and has denied the requested satisfaction.

With the progress of time the institution becomes better defined. In the 13th and 14th centuries several municipal statutes, such as, for example, those of Florence, strictly regulate its exercise, with the evident intention of curbing arbitrariness. From this period there is already noticeable the tendency to revoke to the State the defense of the private interests of citizens, a tendency which, strengthened by the greater power obtained by public authority, led around the 16th century to the almost total disappearance of the private reprisal exercised by concession of the State.

A broader application it had in maritime law. Because of the disorder reigning on the high seas, associations of merchants were formed in the Middle Ages which, in order to defend the ships of the associates from the incursions of pirates, took upon themselves to extort by force reparation for the damages suffered, without awaiting any license to cruise the sea from the State. But here too the evolution of civilization led to a gradual restriction of the primitive freedom: private initiative was made conditional upon the concession of the so-called letters of marque or of reprisal, issued by the competent authority, until (1856) the Convention of Paris definitively abolished the use of privateering, reserving to States alone the protection of the interests of their subjects.

Reprisals are distinguished from war in several respects. War is the last means to which a State may resort after having tried all attempts at peaceful settlement and, as such, requires a cause proportionate to the grave damages it usually produces. The reprisal does not reach the intensity of war in the exercise of coercion, and can therefore be employed for a less grave cause. Moreover, war produces the immediate rupture of peaceful relations, whereas the reprisal in itself does not interrupt the state of peace, and when it is connected with warlike hostilities it preserves its distinctive character, inasmuch as it goes beyond the laws regulating the conduct of hostilities and positively derogates from them, in response to analogous proceedings of the enemy.

With intervention too the reprisal has a marked resemblance; nevertheless a line of division can be drawn between the two institutions. The reprisal is exhausted in the injury of another's right proportionate to the offense received, so that the State which resorts to it, once the coercive process chosen by way of reaction has been carried out, cannot resort to other measures, unless a new injury of right intervenes. In intervention, on the other hand, the scope of the proceeding is more extensive and permits the repeated use of coercive means, until the will of the opposing party has bent to the just demands of the other. But the most evident distinctive note consists in the fact that intervention cannot take place during a state of war, whereas the reprisal even during the wartime period retains full efficacy.

The specific element, then, which distinguishes it from retorsion, consists in the fact that the latter does not require as its presupposition an injury of right, nor does the reaction derogate from any legal norm in force, whereas the former always presupposes the injury of right, to which it responds with an equal infraction.

In conformity with the concept explained thus far, international law recognizes reprisals in time of peace and reprisals in time of war. Thus the ancient jurists and moralists, as also the modern ones, agree in admitting in principle the lawfulness of reprisals. Among contemporary jurists, nevertheless, the divergences are grave when it comes to establishing the legal foundation of the affirmed legitimacy. According to the doctrine of the ancients, including Catholic authors, reprisals derived their reason for being and their legitimacy from the defense of the right injured by the opposing party, and therefore the proximate source from which they made the faculty to resort to coercive acts spring consisted both in the prevailing right of the offended party and in the more universal good of the society of nations.

In this, because of the lack of a sovereign authority for the administration of justice, the exercise of defense remains devolved to the subjects, who, every time an injury is verified against them, have the faculty to adopt those measures which they deem most suitable for the vindication of their own right, according to the higher laws of justice. To this fundamental reason was added, especially in the conception of the moralists and theologians, a more universal consideration, drawn from the common good of the community. The society of nations has the prevailing right that order not be disturbed and that relations among States not be rendered precarious by the freedom granted to crime. Now the only possible way to put this exigency into act, as long as a central power is lacking in the international society, consists in granting to the individual subjects of it the faculty to punish the crime, for the reintegration of justice, since the cause cannot be referred to a higher instance.

To the principles referred to, contemporary doctrine has not remained faithful under the influence of legal positivism. In fact a good part of the publicists holds that the State may legitimately resort to reprisals for the defense of any interest whatsoever, and therefore implicitly denies that the sole foundation of the right resides in the reparation of the wrong caused by the illicit action of another. There is then also he who, to temper the crudeness of the theory which erects force into the criterion of international relations, distinguishes between interests of greater or lesser importance, holding that only the former are a sufficient motive for the legitimacy of acts of reprisal. For the confutation v. GUERRA.

A certain concordance of opinions exists nevertheless regarding the principle of proportionality between the illicit action and the acts of force chosen by way of reprisal. The rule is in itself obvious. The legal and moral foundation of the reprisal resides, as has been said, in the injury of right, and its purpose consists in the reparation of the wrong. This being established, when reprisals have reached the limits of the offense, the foundation of their legitimacy falls and the end to which they were directed remains extinguished. Consequently every excess beyond the strict law of proportion between illicit action and violent response places itself outside the ambit of justice and becomes illegal. There must, therefore, be excluded the opinion which adjudges to the offended State the maximum freedom of action.

An equal agreement has not yet been reached on the question whether the right of reprisal may also be exercised against private citizens. The ancient theologians, such as, for example, de Vitoria and Molina, were in favor of the positive solution, starting from the principle of the collective responsibility of subjects together with the sovereign. Some modern authors still follow, with the necessary modifications, in the footsteps of the ancient doctrine; others, on the other hand, categorically exclude that private individuals may be directly targeted, and this seems by far the more probable opinion. For a long time, in fact, the evolution of the law of nations has been oriented toward the exemption of private individuals from being the direct object of acts of reprisal. Several conventions have provided for the protection of the property of individual citizens, and doctrine, following the general progress of institutions, has expressed itself ever more decisively against measures adopted directly against private individuals.

To this sound orientation of international law is added the fact that, according to the principle already established by Ulpian and today accepted by a good number of jurists, individuals, as such, are not obliged to answer for debts contracted by the community ut singuli but ut universitas (l. 7 § 1 D. 3, 4). Granted, therefore, the civil solidarity of all the members of the collectivity, on which the ancient theologians relied, the logic of the conclusion may be denied, since from that it follows only that private citizens may be affected indirectly, through the community, and not individually, since as such they are not obliged to answer for collective debts. Consequently, the judgment that holds reprisals between State and State legitimate and those directed at directly targeting the private individual illegitimate seems certain.

Concerning the lawfulness of belligerent reprisals there is no dispute. The rational principles that justify the adoption of violent means in time of peace continue to exercise their influence also during the course of hostilities and to confer upon the State offended by another's illegal procedure, in the conduct of war, the faculty of striking the adversary, overstepping the limits of the law of war in force. Once the legitimacy of belligerent reprisals is accepted in principle, the boundaries within which they may be employed in order to remain within legality must immediately be established. The State against which reprisals may legitimately be directed is only the one that committed the illicit act, injurious to the laws of war, that is to say the opposing belligerent responsible as author of the infringements of the law. This is evident and requires no demonstration.

In order to determine the other restrictions that regulate the use of belligerent reprisals, among the norms of the law of war, it is necessary to distinguish those that are imposed by universal demands of humanity and justice from the others that owe their origin to the will of States and belong to positive law. The former, since they spring from an objective order of values that nature itself determines and protects, derive from the source from which they flow that absolute character which makes them valid always and in every case. The latter, on the other hand, are constituted by voluntary and therefore accidental integrations of the fundamental law imposed by nature, and as such are capable of positive suspension, if a proportionate cause and a higher purpose require it.

From this distinction derives the general rule according to which those reprisals must always be held unlawful which violate the fundamental human right, the wise work of nature and of its supreme ordainer; lawful, on the contrary, will be those enacted in derogation of positive law, whose value depends solely on the contractual will of States. To make this division clear and the consequent general law derived from it, the Italian law of war of 8 July 1938 and the annexes of the Hague Convention of 18 Sept. 1907 may serve as examples. The guiding principle established by the Italian law (art. 34), according to which "no superfluous suffering and no damage in useless destruction must be inflicted on the enemy," derives from a norm of natural justice and from a universal demand of humanity. Concrete applications of this principle must be held to be the provisions of the same law in art. 35, by which it is prohibited, in accordance with the analogous provisions of the aforementioned Hague Convention, art. 33 of the annexes: 1) to employ poisons and poisoned weapons; 2) to use treacherous violence or to kill or wound an enemy by treachery, or when the latter, having laid down his arms or no longer having any means of defending himself, has surrendered at discretion; 3) to fire upon shipwrecked persons of the sea and of the air; 4) to declare that no quarter is given; 5) to employ explosive projectiles; 6) to employ bullets that expand or flatten easily in the human body; 7) to plunder localities, even though taken by assault; 8) to destroy enemy property or seize it.

By the same objective order of moral values, cruelties against prisoners or against private individuals are forbidden, particularly when it is a question of the weak and defenseless. Therefore, belligerent reprisals that derogate from these fundamental and essential laws must always be held unlawful, even on the supposition that the enemy has violated them first. The crime committed by one State, while on the one hand it generates in the adversary the faculty of punishing it according to the extent and gravity of the misdeed, does not extend that power beyond the boundaries of the natural law of justice and humanity, which forbids every intrinsically evil means.

Different, on the other hand, is the judgment on reprisals that are enacted in derogation of positive international law, in that part which depends solely on the contractual will of States. Reprisal nevertheless remains a terrible right, to be handled, even during the period of hostilities, with the utmost circumspection; otherwise its exercise will gradually lead to giving the struggle a ruinous harshness, with the overstepping of all moral and juridical barriers. Humanity will bless the day on which a sounder international order will make disappear the harsh necessity of recourse to reprisals for the vindication of law.

Antonio Messineo