REPRISALS. — Speaking generally, a reprisal is a coercive measure by which it is intended to settle a question of right that could not be resolved by peaceful means.
The origin of reprisals goes back a very long time. The most plausible common opinion holds that it derives from Germanic feud, which, having lost its form of private vengeance among citizens of the same State, remained in force in the Middle Ages only between members of different communities. Abandoned first to private initiative, it gradually came to be subjected to a legal regime. Already by the 9th century, the first attempts to regulate its use are noted. Special laws forbade the private individual from resorting to acts of reprisal without the prior authorization of the community, to which such authorization belonged, and special treaties stipulated that permission was not to be granted unless the authority to which the offender was subject had been notified and had refused the satisfaction requested.
As time progressed, the institution became better defined. In the 13th and 14th centuries, many 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 tendency to withdraw from the State the defense of private interests of citizens, a tendency that, strengthened by the greater power acquired by public authority, led by the 16th century to the almost total disappearance of private reprisals exercised by concession of the State.
A broader application was found in maritime law. Owing to the disorder prevailing on the high seas, associations of merchants formed in the Middle Ages, which, to defend the ships of their members from pirate incursions, took it upon themselves to extort by force the reparation of damages suffered, without awaiting any license to sail from the State. But here too, the evolution of civilization led to a gradual restriction of primitive freedom: private initiative was made conditional upon the grant of the so-called letters of marque or reprisal, issued by the competent authority, until (1856) the Paris Convention 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 resort to which a State may have recourse after all attempts at peaceful settlement have failed, and as such it requires a cause proportionate to the serious harm it usually causes. Reprisals do not attain the intensity of war in the exercise of coercion, and may therefore be used for a less serious cause. Moreover, war produces the immediate rupture of peaceful relations, whereas reprisals in themselves do not interrupt the state of peace; and when connected with acts of war, they retain their distinctive character inasmuch as they go beyond the laws governing the conduct of hostilities and derogate positively from them in response to similar procedures by the enemy.
Reprisals also bear a marked resemblance to intervention; yet a line of demarcation may be drawn between the two institutions. Reprisals are exhausted in the infliction of a proportionate injury in response to an offense, so that the State resorting to them, having carried out the chosen coercive process by way of reaction, may not resort to further measures unless a new violation of right occurs. In intervention, on the other hand, the scope of the procedure is broader and allows for repeated use of coercive means until the will of the opposing party is bent to the just demands of the other. But the most evident distinguishing feature lies in the fact that intervention cannot take place during a state of war, whereas reprisals retain full efficacy even during wartime.
The specific element that distinguishes reprisals from retaliation lies in the fact that the latter does not require as its prerequisite a violation of right, nor does the reaction derogate from any existing legal norm; reprisals, on the other hand, always presuppose a violation of right, to which they respond with an equal infraction.
In accordance with the concept thus explained, international law recognizes reprisals in time of peace and reprisals in time of war. Thus, ancient jurists and moralists, as well as modern ones, agree in principle on the lawfulness of reprisals. Among contemporary jurists, however, there are serious divergences when it comes to establishing the legal foundation of the asserted legitimacy. According to the doctrine of the ancients, including Catholic authors, reprisals derived their reason for being and their legitimacy from the defense of a right violated by the opposing party, and hence the proximate source from which they derived the faculty to resort to coercive acts consisted either in the superior right of the aggrieved party or in the more universal good of the society of nations.
In this latter, owing to the lack of a sovereign authority for the administration of justice, the exercise of defense devolves upon the subjects, who, whenever a violation is committed against them, have the faculty to adopt those measures they deem most suitable for the vindication of their 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 the superior right that order not be disturbed and that relations between States not be rendered precarious by the freedom granted to crime. Now the only possible way to give effect to this exigency, so long as a central power is lacking in the international society, consists in granting to individual subjects the faculty to punish crime for the restoration of justice, since the cause cannot be referred to a higher jurisdiction.
The contemporary doctrine has not remained faithful to these principles under the influence of legal positivism. Indeed, a good part of publicists holds that a State may legitimately resort to reprisals for the defense of any interest, and thus flatly denies that the sole foundation of right lies in the reparation of the wrong caused by the illicit action of another. There are those, moreover, who, to temper the harshness of the theory that erects force as the criterion of international relations, distinguish between interests of greater or lesser importance, holding that only the former are sufficient grounds for the legitimacy of acts of reprisal. For the refutation V. WAR.
There is, however, a certain consensus of opinion regarding the principle of proportionality between the illicit action and the measures of reprisal chosen. The rule is in itself obvious. The moral and juridical foundation of reprisals lies, as has been said, in the violation of right, and their purpose consists in the reparation of the wrong. Given this, when reprisals have reached the limits of the offense, the foundation of their legitimacy lapses and the end to which they were directed is extinguished. Consequently, any excess beyond the strict law of proportion between illicit action and violent response falls outside the realm of justice and becomes illegal. The opinion that grants the offended State the widest freedom of action must therefore be excluded.
An equal consensus has not yet been reached on the question whether the right of reprisals can be exercised even against private citizens. Ancient theologians, such as, for example, Vitoria and Molina, were in favor of the positive solution, proceeding from the principle of the collective responsibility of subjects with the sovereign. Some modern authors still follow, with the necessary modifications, the footsteps of ancient doctrine, while others categorically exclude the possibility of directly striking private individuals, and this latter view is no longer the more probable. For a long time now, in fact, the evolution of the law of nations has tended toward exempting private individuals from being the direct object of acts of reprisals. Several conventions have provided for the protection of the property of individual citizens, and doctrine, following the general progress of institutions, has increasingly expressed itself decisively against measures taken directly against private individuals.
To this sound orientation of international law is added the principle already established by Ulpian and now accepted by a good number of jurists, that individuals, as such, are not obliged to answer for debts contracted by the community *ut singuli* but *ut universitas* (Digest 3.4.7.1). If, therefore, the civil solidarity of all members of the collectivity—which was the lever used by ancient theologians—is admitted, the logic of the conclusion may be denied, since from it only follows that private citizens may be struck indirectly, through the community, and not individually, since as such they are not obliged to answer for collective debts. Consequently, the judgment seems certain that holds reprisals between State and State to be legitimate and those directed to strike the private individual directly to be illegitimate.
As to the lawfulness of war reprisals, there is no dispute. The rational principles that justify the adoption of violent means in peacetime continue to exert their influence even during the course of hostilities and to confer upon the State offended by another’s illegal conduct in the conduct of war the faculty of striking the adversary, exceeding the limits of the existing laws of war. Once the legitimacy of war reprisals is accepted in principle, it is necessary immediately to establish the boundaries within which they may be employed to remain within legality. The State against which reprisals may legitimately be directed is solely that which has committed the illegal act, injurious to the laws of war—that is, the opposing belligerent responsible for the violations of the law. This is evident and requires no demonstration.
To determine the other restrictions that govern the use of war reprisals, among the norms of the law of war, it is necessary to distinguish those imposed by universal exigencies of humanity and justice from those 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 their source that absolute character that renders them valid always and in every case. The latter, instead, are constituted by voluntary additions and thus accidental to the fundamental law imposed by nature, and as such are liable to positive suspension if a cause proportionate to a higher end so requires.
From this distinction derives the general rule according to which reprisals that infringe fundamental and essential human rights, the wise work of nature and its supreme order, must always be considered illicit; licit, on the contrary, will be those that are in derogation of positive international law, whose value depends solely on the contractual will of States. To render this division clear and the general law derived from it, the Italian war law of July 8, 1938, and the annexes to the Hague Convention of September 18, 1907, may serve as examples. The guiding principle established by the Italian law (art. 34), according to which “no superfluous suffering or unnecessary destruction and damage shall be inflicted upon the enemy,” derives from a norm of natural justice and a universal exigency of humanity. Concrete applications of this principle are to be found in the same law at art. 35, with which it is forbidden, in accordance with the analogous provisions of the aforementioned Hague Convention, Annex, art. 33: 1) to employ poison or poisoned weapons; 2) to make treacherous use of violence or to kill or wound an enemy by treachery when he has laid down his arms or has no longer any means of defense and has surrendered unconditionally; 3) to fire upon shipwrecked persons of sea or air; 4) to declare that no quarter will be given; 5) to employ explosive projectiles; 6) to employ bullets that expand or flatten easily in the human body; 7) to pillage localities, even if taken by assault; 8) to destroy enemy property or seize II.
From the same objective order of moral values are forbidden the cruelties against prisoners or against private individuals, particularly if they are weak and defenseless. Reprisals that derogate from these fundamental and essential laws must therefore always be considered illicit, even in 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 such power beyond the boundaries of the natural law of justice and humanity, which forbids every intrinsically evil means.
Different, instead, is the judgment on reprisals that are in derogation of positive international law, in that part that depends solely on the contractual will of States. Reprisal remains, however, a terrible right, to be handled even during the period of hostilities with the utmost circumspection; otherwise its exercise will gradually lead to rendering the struggle one of ruinous harshness, with the overcoming of all moral and juridical barriers. Humanity will bless the day on which a sounder international order will make the harsh necessity of recourse to reprisals for the vindication of rights disappear.