RAPPRESAGLIA. — Generally speaking, a reprisal is a coercive measure intended to settle a question of law that could not be resolved by peaceful means.
The origin of reprisals reaches far back in time. The most plausible common opinion holds that they derive from the Germanic feud, which, having lost its form of private vengeance among citizens of the same State, remained in the Middle Ages in force only among members of different communities. Initially left to private initiative, it was gradually subjected to a juridical regime. As early as the ninth century, the first attempts to regulate its use can be observed. Specific laws prohibited private persons from resorting to acts of reprisal without the prior authorization of the community, to which the granting of such authorization belonged; and special treaties established that permission was not to be granted unless the authority to which the offender was subject had first been notified and had refused the satisfaction requested.
As time progressed, the institution became more clearly defined. In the thirteenth and fourteenth centuries, several municipal statutes, such as those of Florence, strictly regulated its exercise, with the evident intention of curbing arbitrariness. From this period onward, there is a discernible tendency to reclaim for the State the defense of the private interests of its citizens; this tendency, strengthened by the greater power acquired by public authority, led around the sixteenth century to the almost complete disappearance of private reprisals exercised by concession of the State.
Reprisals found a broader application in maritime law. Because of the disorder prevailing on the high seas, associations of merchants were formed in the Middle Ages which, in order to defend the ships of their members against pirate raids, undertook to extort by force reparation for the damage suffered, without awaiting any license from the State to engage in maritime warfare. Here too, however, the development of civilization brought about a gradual restriction of the original freedom: private initiative became conditional upon the granting of the so-called letters of marque or reprisal, issued by the competent authority, until (1856) the Convention of Paris definitively abolished the practice of privateering, reserving the protection of subjects’ interests exclusively to the States.
Reprisals differ from war in several respects. War is the last means to which a State may resort, after having exhausted all attempts at peaceful settlement, and as such requires a cause proportionate to the grave damage it ordinarily produces. Reprisals do not attain the intensity of war in the exercise of coercion and may therefore be employed for a less serious cause. Moreover, war produces the immediate rupture of peaceful relations, whereas reprisals do not in themselves interrupt the state of peace; and when connected with belligerent hostilities, they retain their distinctive character insofar as they go beyond the laws governing the conduct of hostilities and positively derogate from them in response to analogous procedures by the enemy.
Reprisals also bear a marked resemblance to intervention; nevertheless, a dividing line can be drawn between the two institutions. Reprisals are exhausted in an injury to the other party’s right proportionate to the offense received, so that the State resorting to them, once it has put into effect the coercive process selected by way of reaction, may not resort to further measures unless a new injury to its right occurs. In intervention, by contrast, the scope of the procedure is broader and permits the repeated use of coercive means until the will of the opposing party has yielded to the just demands of the other. The most evident distinguishing feature, however, is that intervention cannot take place during a state of war, whereas reprisals retain their full effectiveness even during wartime.
The specific element distinguishing them from retaliation consists in the fact that retaliation does not require an injury to a right as its prerequisite, nor does the reaction derogate from any legal rule in force; reprisals, by contrast, always presuppose an injury to a right, to which they respond by an equal violation.
In accordance with the concept explained above, international law recognizes reprisals in peacetime and reprisals in wartime. Thus the ancient jurists and moralists, as well as the modern ones, agree in principle in admitting the lawfulness of reprisals. Among contemporary jurists, nevertheless, divergences are serious when it comes to establishing the legal basis of their asserted legitimacy. According to the doctrine of the ancients, including Catholic authors, reprisals derived their rationale and legitimacy from the defense of the right injured by the opposing party; hence the proximate source from which they derived the power to resort to coercive acts consisted both in the superior right of the injured party and in the more universal good of the society of nations.
In that society, owing to the absence of a sovereign authority for the administration of justice, the exercise of defense remains entrusted to the subjects, who, whenever an injury is inflicted upon them, have the power to adopt those measures they deem most suitable for vindicating their own right, in accordance with the higher laws of justice. To this fundamental reason was added, especially in the conception of moralists and theologians, a more universal consideration drawn from the common good of the community. The society of nations has a paramount right that order not be disturbed and that relations among States not be rendered precarious by the freedom granted to wrongdoing. Now, so long as a central power is lacking in international society, the only possible way of putting this requirement into effect consists in granting its individual subjects the power to punish wrongdoing, for the restoration of justice, since the matter cannot be referred to a superior authority.
Contemporary doctrine, under the influence of legal positivism, has not remained faithful to the principles just described. Indeed, a substantial portion of publicists holds that the State may legitimately resort to reprisals for the defense of any interest, and thus implicitly denies that the sole foundation of the right lies in reparation for the wrong caused by the unlawful action of another. There are also those who, in order to temper the harshness of the theory that makes force the criterion of international relations, distinguish between interests of greater or lesser importance, holding that only the former provide sufficient grounds for the legitimacy of acts of reprisal. For its refutation V. GUERRA.
There is nevertheless a certain agreement of opinion concerning the principle of proportionality between the unlawful action and the forcible measures chosen by way of reprisal. The rule is self-evident. The legal and moral foundation of reprisals lies, as has been said, in the injury to a right, and their purpose consists in reparation for the wrong. Given this, once reprisals have reached the limits of the offense, the foundation of their legitimacy falls away and the purpose toward which they were directed is extinguished. Consequently, any excess beyond the strict law of proportionality between unlawful action and violent response lies outside the sphere of justice and becomes illegal. The opinion that grants the injured State the greatest freedom of action must therefore be rejected.
Equal agreement has not yet been reached on the question whether the right of r. may also be exercised against private citizens. The ancient theologians, such as, for example, de Vitoria and Molina, favored the affirmative solution, proceeding from the principle of the collective responsibility of subjects together with their sovereign. Some modern authors still follow, with the necessary modifications, in the footsteps of the ancient doctrine; others, however, categorically exclude the possibility of directly harming private individuals, and this seems by far the more probable opinion. For a long time, in fact, the development of the law of nations has been oriented toward exempting private individuals from being the direct object of acts of r. 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 persons.
To this sound orientation of international law there must be added the fact that, according to the principle already established by Ulpian and now accepted by a good number of jurists, individuals, as such, are not bound to answer for debts contracted by the community ut singuli but ut universitas (l. 7 § 1 D. 3, 4). Once, then, the civil solidarity of all the members of the community is admitted, on which the ancient theologians relied, the logic of the conclusion may be denied, since it follows from that solidarity only that private citizens may be affected indirectly, through the community, and not individually, since as such they are not bound to answer for collective debts. Consequently, the judgment that regards r. between State and State as legitimate and those aimed at directly harming the private individual as illegitimate seems certain.
There is no dispute concerning the lawfulness of wartime r. The rational principles that justify the adoption of violent means in peacetime continue to exert their influence during the course of hostilities and to confer upon the State injured by the illegal conduct of the other, in the conduct of the war, the power to strike the adversary, going beyond the limits of the existing law of war. Once the legitimacy of wartime r. has been accepted in principle, the boundaries within which they may be employed in order to remain lawful must immediately be established. The State against which r. may legitimately be directed is solely the State that committed the unlawful act injurious to the laws of war, namely, the opposing belligerent responsible for the violations of the law. This is evident and requires no demonstration.
To determine the other restrictions governing the use of wartime r. among the rules of the law of war, it is necessary to distinguish those imposed by universal requirements of humanity and justice from those that owe their origin to the will of States and belong to positive law. The former, since they arise from an objective order of values determined and protected by nature itself, derive from the source from which they spring that absolute character which makes them valid always and in every case. The latter, on the other hand, consist of voluntary additions and are therefore accidental to the fundamental law imposed by nature; as such, they may be positively suspended if a proportionate cause and a higher purpose so require.
From this distinction follows the general rule according to which r. that infringe human and fundamental law, the wise work of nature and of its supreme ordainer, must always be held unlawful; lawful, on the contrary, will be those established in derogation of positive law, whose value depends solely upon the contractual will of States. To clarify this division and the consequent general law derived from it, the Italian law of war of 8 July 1938 and the annexes to the Hague Convention of 18 September 1907 may serve as examples. The guiding principle established by the Italian law (art. 34), according to which “superfluous suffering and damage through unnecessary destruction must not be inflicted upon the enemy,” derives from a norm of natural justice and from a universal requirement of humanity. Concrete applications of this principle must be understood to be the provisions of art. 35 of the same law, by which, in accordance with the analogous provisions of the aforementioned Hague Convention, art. 33 of the annexes, the following are prohibited: 1) employing poisons and poisoned weapons; 2) using treacherous violence, or killing or wounding an enemy treacherously, or when, having laid down his arms or no longer having any means of defending himself, he has surrendered at discretion; 3) firing upon shipwrecked persons at sea or in the air; 4) declaring that no quarter will be given; 5) employing explosive projectiles; 6) employing bullets that expand or flatten easily in the human body; 7) pillaging localities, even when taken by assault; 8) destroying enemy property or seizing II.
Cruelties against prisoners or private persons, particularly when they are weak and unarmed, are likewise prohibited by the same objective order of moral values. Wartime r. that derogate from these fundamental and essential laws must therefore always be considered unlawful, even on the supposition that the enemy was the first to violate them. The crime committed by one State, while on the one hand it gives the adversary the power to punish it according to the extent and gravity of the offense, does not extend that power beyond the limits of the natural law of justice and humanity, which prohibits every intrinsically evil means.
The judgment is different, however, regarding r. established in derogation of positive international law, in that part which depends solely upon the contractual will of States. R. nevertheless remains a terrible right, to be handled, even during the period of armed hostilities, with the utmost circumspection; otherwise its exercise will gradually lead to an intensification of the struggle that is ruinous, with the overcoming of all moral and legal barriers. Humanity will bless the day on which a sounder international order makes disappear the harsh necessity of resorting to r. in vindication of rights.
BIBLI: L. A. Muratori, De repressalitis, in Antiquitates Italicae medii arci, IV, Milano 1741, diss. IV; P. Fiore, Diritto internazionale pubblico, II, Torino 1888, pp. 598-604; A. Del Vecchio - E. Casanova, Le r. nei comuni medievali, Bologna 1894; G. Arias, La base delle r. nella costituzione sociale del medioevo, Roma 1904; B. Guarini, Le r. in tempo di pace, ivi 1910; L. Le Fur, Des représailles en temps de guerre, Parigi 1919; C. Strupp, Theorie und Praxis des Völkerrechts, Berlino 1925, p. 80 seg.; Y. De La Brière, Évolution de la doctrine et de la pratique en matière des représailles, in Recueil des cours de l'Académie de droit interne, 22 (1928, II), pp. 241-93; L. Olivi, Diritto internazionale pubblico, Milano 1933, pp. 431-36; A. Messineo, Spazio vitale e grande spazio, Roma 1942, pp. 191-262. Antonio Messineo