FACULTY of LAW 2014/2015 the Critical Analysis on the 'Belligerent

FACULTY OF LAW 2014/2015

The Critical Analysis on the ‘Belligerent Reprisals’ as Means

ofSubject Enforcement: Thesis (Final of) Draft International Humanitarian Law: Inconsistency between International Humanitarian Law and International Criminal Law and Legitimacy Issues

A thesis submitted in a partial fulfillment of academic requirements for the award of a Master Degree in International and European Law and the Title of Master of Laws (LLM)

By,

Protogène DUSABE

Supervisor: Prof H.G. van der Wilt

Amsterdam, 26 June 2015

DECLARATION

I, DUSABE Protogène, here-by declare that, this research work entitled “The Critical Analysis on the ‘Belligerent Reprisals’ as Means of Enforcement of International Humanitarian Law: Inconsistency between International Humanitarian Law and International Criminal Law and Legitimacy Issues” is to the best of my knowledge and belief original, apart from where acknowledged in the text, and has not previously been submitted in any institution for the award of a Degree or Diploma.

DUSABE Protogène

June 2015

DEDICATION

To The Almighty God; To our spouse Kayitesi M. Assumpta; To our daughters Glenda and Ingrid; To our deceased father; To our much-loved mother; To all those who advocate the cause of humanity

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ACKNOWLEDGEMENTS

This thesis is an achievement that leaves me highly indebted to The Almighty God for his blessings throughout my life, as well as to many individuals and institutions for their moral and financial support; and I hereby extend to them my opportune appreciation.

I wish to express my deepest thanks to Prof. H.G.van der Wilt for having accepted the idea of this thesis and for his learned guidance. I wholeheartedly thank the Governments of Rwanda and The Netherlands for their support throughout my study period. My most sincere thanks are due to ‘Universiteit van Amsterdam (UvA)’for not only having ensured adequate knowledge in the Faculty of Law, but most importantly for the Amsterdam Merit Scholarship that greatly contributed towards my academic cost.

Too, I would like to thank my family whose continuous support and encouragement was vital. My deep appreciation goes to my learned friends in the International and European Law program 2014/2015, more particularly those in Public International Law track with whom I used to exchange ideas in many discussions. Also, worth acknowledgement is due to the socialization geared by the continuous friendship with Y. Foliant, A. Marvin, Mees van Ojik, A. Jonkers, A. Haalebos and H. Valentijn for their invaluable friendship in Amsterdam. I am proud of that comradeship.

All of you thank you ever so much!

P. DUSABE June 2015

LIST OF ACRONYMS AND ABBREVIATIONS

§ Paragraph AJIL American Journal of International Law AP Additional Protocol ASIL American Society of International Law B.O. Bulletin Officiel CCW (UN) Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or To Have Indiscriminate Effects CUP Cambridge University Press Doc. Document Ed. Edition e.g. Exampli gratia (For example) EJIL European Journal of International Law et al. et alii (and others) et seq. Et Sequens [And the following (pages)] GC Geneva Conventions ICRC International Committee of the Red Cross ICTY International Criminal Tribunal for the Former Yugoslavia ICTR International Criminal Tribunal for Rwanda Ibid. (Short of Ibidem) In the same place (as before) IHL International Humanitarian Law ILC International Law Commission IRRC International Review of the Red Cross JICJ Journal of International Criminal Justice Law & Contemp. Probs Law and Contemporary Problems LOAC Law of Armed Conflict LWT Law Reports of Trials of War Criminals Mich.L.R. Michigan Law Review

Mil.L.Rev. Military Law Review n. Note (footnote) N.J. New Jersey N.Y. New York OUP Oxford University Press p./pp. Page/Pages PoW Prisoner(s) of War Res. Resolution RSK Republic of Serbia Krajina UK United Kingdom UN United Nations UNGA United Nations General Assembly UNRIAA United Nations Reports of International Arbitral Awards UNSC United Nations Security Council UNTS United Nations Treaty Series USA United States of America viz. Videlicet (Namely) VCLT Vienna Convention on the Law of Treaties (1969) Vol. Volume WWI/II World War I/II

Table of International Instruments

26 October 1945 Charter of the United Nations, 26 October 1945, 1 UNTS XVI 17 July 1998 Rome Statute of the International Criminal Court as amended by the Resolutions adopted by the Review Conference in June 2010 concerning article 8 (Res 5) and the crime of aggression (Res 6) (2187 UNTS 3) 12 August 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I) 12 August 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II) 12 August 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War (GC III) 12 August 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (GC IV) 22 May 1969 The Vienna Convention on the Law of Treaties (VCLT) 1155 UNTS 331 8 June 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I) 14 may 1954 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 2 December 1983 The Protocol (II) on the prohibitions or restrictions on the use of mines, booby- traps and other devices as amended on 03 May 1996 (Protocol II to 1980 CCW) 10 October 1980 United Nations Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects as amended on 21-12-2001, 1342 UNTS 137 27 July 1929 Geneva Convention relative to the Treatment of Prisoners of War 8 August 1945 London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal 18 October 1907 The Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land 9 September 1880 The Laws of War on Land, Manual published by the Institute of International Law (Oxford Manual) 24 April 1863 General Orders, No. 100: Instructions for the Government of Armies of the United States in the Field (Lieber Code)

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Table of Judgments

Nuremberg Trials

Law Reports of Trials of War Criminals (LWT), Selected and prepared by the United Nations War Crimes Commission, Vols. IV, VIII, XII, s. (London: His Majesty’s Stationery Office, 1947-1949) [via online http://www.loc.gov, accessed April-May 2015]:

The German High Command Trial, United States v. Wilhelm Von Leeb and Thirteen Others, United States Military Tribunal, Nuremberg, Case No. 72, Judgment of 30th December, 1947-28th October, 1948, Vol. XII, 1-127 The Hostage Case Trial, United States of America v. Wilhelm List et al., Judgment, 19 February 1948, Case No. 47, Vol. VIII The Dostler case, Trial of Gen. Anton Dostler (United States Military Commission, Rome, 8th -12th October, 1945), Case No. 2, Vol. I The Einsatzgruppen Case, , USA v Otto Ohlendorf et al., Military Tribunal II , Case No.9, Vol. IV, Nuernberg, October 1946– April 1949

International Court of Justice

ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Judgment, 27 June 1986, Merits, ICJ Reports 1986. [Via Online www.icj-cij.org, accessed 26-03-2015]

International Criminal Tribunal for the Former Yugoslavia

ICTY, Prosecutor v. Milan Martić, Case No. IT-95-11, Appeals Chamber Judgment, 08.08-2008

ICTY, Prosecutor v. M. Martic, Case No. IT-95-11, Trial Chamber 2 Judgment,12-06-2007

ICTY, Prosecutor v. Kupreškić et al., Case No. IT-95-16, Appeals Chamber Judgment, 23-10-2001

ICTY, Prosecutor v. Kupreškić et al., Case No. IT-95-16, Trial Chamber Judgment, 14-01-2000

ICTY, A. Furundžija Case, ICTY, Case No.: IT-95-17/1, Trial Chamber Judgment, 10-12-1998

The International Arbitration Tribunal

The Portuguese Colonies Case (Naulilaa incident), Portugal v. Germany (31 July 1928) 2 UNRIAA 1011-1033 (2006)

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FOREWORDS

1. “…for honor is a recognition of superiority; but the man who endures such an injury shows that in a superior degree he possesses the virtue of long-suffering , and thus rather increases his honor than diminishes it…………..that it is characteristic of a small soul not to be able to bear an insult”

- Stephen C. Neff (Ed. & Annoted), Hugo Grotius on the Law of War and Peace (CUP, 2012), at 86.

2. “Revenge is the most worthless weapon in the world. It ruins the avenger while more firmly confirming the enemy in his wrong. It initiates an endless flight down the bottomless stairway of rancor, reprisals, and ruthless retaliation.”

―Tim F. Lahaye & Bob Phillips (Authors), Anger is a Choice (Zondervan, 2001).

ABSTRACT

The thesis seeks to analyze the reason behind the gap between IHL and international criminal law with respect to the traditional and controversial mechanism of enforcing the laws of war: "Belligerent reprisals." Traditionally, the doctrine of belligerent reprisals was the only available and effective mechanism of enforcing the laws of war. In 20th century, the need to restrict to only military target the so-called evil of wars against humanity arose and the 1949 Geneva Conventions codified important restrictions that were extended in their 1977 AP I.

However, the narrow scope of reprisals resulting from 1974-1977 Conferences has not gained support from major powers of the West. Consequently, some states claim that the prohibition of reprisals against civilians is not part of customary international law and there is a possibility to target enemy civilians despite the requirement of conformity in all cases to the laws of humanity and morality. This decentralized coercive order through the primitive self-help measures shows that the international law is in statu nascendi.

Actually, the place of reprisals under the IHL as means of enforcement has increasingly been interpreted differently in modern eye of humanitarian law by international criminal law. The latter law has been growing towards the rejection of defenses of such an inhumane practice of enforcing rules of humanity. The thesis examines reasons behind that inconsistency. The research challenges the enforcement of the humanitarian law by way of the practice intrinsically unlawful and which contravenes the raison-d’être of the humanitarian law. The ultimate aim of the study is to analyze the inappositeness of reprisals as means of enforcing IHL in the world of today. Their questionable efficacy and subsidiarity requirement to which they are subjected, as well as their inhumane character prove the reason to dismiss reprisals which characterize the society lacking a centralized coercive order.

TABLE OF CONTENTS

DECLARATION...... i

DEDICATION...... ii

ACKNOWLEDGEMENTS ...... iii

LIST OF ACRONYMS AND ABBREVIATIONS ...... iv

Table of International Instruments ...... vi

Table of Judgments ...... vii

FOREWORDS ...... viii

ABSTRACT ...... ix

TABLE OF CONTENTS ...... x

GENERAL INTRODUCTION: Research Design ...... 1

I. Introduction ...... 1

II. The Problem Statement ...... 1

III. Research questions ...... 2

IV. Hypotheses ...... 3

V. The connection between the problem statement and the research sub-questions ...... 4

VI. Research Objective ...... 4

VII. Research Methodology ...... 4

VIII. The scope of the research study ...... 5

IX. Provisional Outline ...... 5

Chapter One: BELLIGERENT REPRISALS: A General Understanding on Forcible Self-Help

Measures of States under International Law ...... 6

1.0. Introduction ...... 6

1.1. Reprisals ...... 6

A. Definition ...... 7

B. Historical background of ‘reprisals’ ...... 8

C. Conditions to resort to reprisals ...... 10

1.2. (National) Self-Defence ...... 12

A. General ...... 12

B. The Legal criteria for the invocation of the right of (national) self-defence ...... 13

C. Self-defense Criteria: Immediacy, Necessity and Proportionality ...... 14

D. Modalities of Self-defence ...... 15

(a) On-the-spot reaction ...... 15

(b) Defensive armed reprisal ...... 15

1.3. Conclusion ...... 17

Chapter II: INCONSISTENCY BETWEEN IHL AND ICL IN THE CONTEXT OF

BELLIGERENT REPRISALS ...... 18

2.1. General ...... 18

2.2. The Scope of Reprisals Under the Modern LOAC ...... 18

A. Duty of States to respect and ensure respect of IHL ...... 19

B. Prohibitions of belligerent reprisals under IHL ...... 20

1. Prohibitions under the 1949 GCs ...... 21

2. Prohibitions of reprisals under 1977 AP (I) ...... 21

3. Prohibitions under the Protocol II to the 1980 CCW ...... 22

2.3. ICL and The Doctrine of Belligerent Reprisals ...... 22

A. Justification ...... 23

B. Defences of Reprisals in Criminal Trials ...... 24

1. WWII Criminals’ Trials ...... 24

a. The Germany High Command Trial ...... 25

b. The Dostler case ...... 25

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2. Defence of reprisals before the ICTY ...... 26

C. The Rome Statute and reprisals ...... 27

2.4. Effects of Reprisals on LOAC ...... 29

2.5. Conclusion ...... 29

Chapter III: BELLIGERENT REPRISALS AS MEANS OF ENFORCEMENT OF IHL IN THE

WORLD OF TODAY ...... 31

3.1. General ...... 31

3.2. Means of Law Enforcement ...... 31

A. Reprisals and the principle of subsidiarity ...... 32

B. Criminal proceedings ...... 33

C. Other Means of enforcement ...... 34

3.3. Inappositeness of Belligerent Reprisals ...... 35

A. Uncertain efficacy of reprisals ...... 35

1. Reprisals leading to reprisals-series ...... 35

2. Affecting innocent people ...... 37

B. Illegitimacy and the growing unpopularity of reprisals ...... 38

3.4. Conclusion ...... 38

GENERAL CONCLUSION ...... 39

BIBLIOGRAPHY ...... 41

GENERAL INTRODUCTION: Research Design

I. Introduction

1. Under international law, a ‘Belligerent reprisal’, despite the unlawfulness of the authors’ conduct(s) or an act(s) itself, because it violates the identical or another norm of international law,1 is not prohibited when used in reaction to unlawful acts of an opponent,2 and not directed to protected persons and proper ties under the law of armed conflicts.3 These prima facie unlawful measures apply coercion with a view to bring about the change to the opponent’s unlawful conduct, and their ultimate aim is the enforcement of the humanitarian law. 2. The present research study seeks to make a critical analysis on ‘Belligerent reprisal’ as means of enforcing the international humanitarian law. By so doing, not only the effectiveness of reprisals in today’s times will be assessed, but also their illegitimacy as well as the gap between international humanitarian law and international criminal law in the context of reprisals will be made.

II. The Problem Statement

3. It is morally controversial for one to justify the violation of the law on the plea of compelling the other (adversary) to comply with the same law. As underlined by F. Kalshoven, in his famous treatise full of humane aspirations of international law, “It is perplexing to go in using inhumanity as a way of enforcing IHL whose basis is the interests of humanity.”4 In fact, the reprisals are not formally prohibited, for instance, as regards methods and means of warfare.5

1 F. Kalshoven (ed.), Belligerent Reprisals, Martinus Nijhoff Publishers 2005, Leiden, (2nd ed., vol. 11), p. 33. 2 J. M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian law (vol. I: Rules (Rule No. 145) (Cambridge University Press, ICRC 2005) [hereinafter ICRC Study], p. 513. 3 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 [GC] (I)], art. 46; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 [GC II], art. 47; Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949 [GC III], art. 13(3); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949 [GC (IV)], art. 33 (3); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977[Hereinafter AP I], arts. 20, 51-56. 4 F. Kalshoven, n. 2, p. XVII. 5 F. Kalshoven and L. Zegveld, Constraints on the waging of war, (Geneva , ICRC 2001), p. 144, cited in E. van Sliedregt, Individual Criminal Responsibility in International Law (OUP, London, 2012), p. 261.

And it is regrettably uncertain as to how the core IHL principles of humanity will be observed, despite the aforesaid prohibitions under the modern humanitarian law6 and strict conditions subjected to ‘belligerent reprisals’.7 The same concern is due to some states’ reservations to 1949 Geneva Conventions (GCs) and their Protocols which presume the likelihood to resort to reprisals in kind taken in most extreme situations.8 4. Though, reprisals are not totally banned under IHL, their legitimacy is still questionable since, nowadays, there are other available mechanisms to enforce the LOAC. Again, the ICL did not explicitly include the defences of reprisals to preclude the criminal responsibility. Therefore, the same gap between the two branches of public international law, which leads to different conclusions, ushered the researcher to assess it, in order to come up with a conclusion answering today’s reality.

III. Research questions

5. From the above problematic, some questions and sub-questions arose. The main questions are the following:

a. Are reprisals legitimate means of enforcing the modern international humanitarian law? b. How are reprisals affecting the international law?

Sub-questions

a. Why have ‘reprisals’ become unpopular? b. Why is there inconsistency between ICL and IHL?

6 J. M. Henckaerts and L. Doswald-Beck (eds.), Above n. 3. 7 Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, CUP 2010, Cambridge, (2nd ed.), pp. 254-6. Those conditions are: (i) they are a reaction to prior serious violation of IHL; (ii) measure of last resort; (iii) be proportionate; (iv) decided at the highest level of the government; (v) immediate cessation upon compliance by the adversary. 8 UK reservation to the 1977 AP I: “If any adverse party makes serious and deliberate attacks against the civilian population or civilian objects, the UK will regard itself entitled to take measures otherwise prohibited to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government.”

IV. Hypotheses

6. According to the 1969 Vienna Convention on the Law of Treaties, the principle of reciprocity does not apply “to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.”9 Besides, while IHL allows its violation at the expense of its enforcement by reprisals, the conceptualization of the defence of reprisals is lacking under ICL. The international criminal law is developing towards the ban of such practice as means contravening its role of enforcing the humanitarian law. In the most recent case-laws, where reprisals were raised to exclude the criminal liability, the ICTY Trial Chamber did not support the practice of reprisals affecting the civilians and civilian population;10 and reciprocity was rejected in violations of LOAC.11 7. Though, on one hand it might be true to argue that reprisals traditionally used to be effective means to enforce IHL due to lack of alternative and effective mechanisms to enforce the law in the past,12 or when a party to a conflict knows that the opponent has superior means that can be used by way of reprisal,13 their effectiveness remains doubtful since it lies in the mere hope of subjugating the adversary to the respect of the law and the most likely counter-reprisals whose results are further escalations of the conflict, on the other. In fact, some resolutions of the UNSC and UNGA,14 the commentaries of the International Law Commission,15 and the scholarly writings prove the will to prohibit forcible reprisals.16

9 Vienna Convention on the Law of Treaties (22 May 1969), 1155 UNTS 331, art. 60 (5). 10 ICTY, Judgment of 14-01-2000, Case No. IT-95-16-T (Prosecutor v Kupreškic et al.) [Hereinafter Kupreškic et al. Case], §516-36. 11 Ibid., § 517. 12 See Below n. 124. 13 This may have an psychological effect on the party which would endeavor to resort to reprisals. 14 See S. Darcy, ‘Retaliation and Reprisals’, in M. Weller (ed.), The Oxford Handbook of The Use of Force in International Law, (OUP, 2015), p. 880; UNGA Res 2625 (XXV), 24 October 1970 [Adopted on a Report from the Sixth Committee (A/8082)] A/RES/25/2625, §1(6). According to the resolution: “States have a duty to refrain from acts of reprisal involving the use of force” [Online]; UNSC Res. 188 [UN Doc S/5650 (1964)]. This resolution relates to a complaint by Yemen regarding a British air attack on Yemeni territory, the Security Council declared that it ‘condemns armed reprisals as incompatible with the purposes and principles of the United Nations’. 15 See Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) Commentary on article 22 of Draft Articles on the State Responsibility, at 77. The term ‘Reprisal’ as a ‘defence’ has not been expressly included the ILC Draft Codes because of its association with the law of belligerent reprisals involving the use of force. 16 O. Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law, Hart Publishing Ltd. 2010, Oxford, pp. 234–236; R. Barsotti, ‘Armed Reprisals’, in A. Cassese (ed.), The Current Legal Regulation of the Use of Force, Martinus Nijhoff Publishers, Dordrecht 1986, pp. 79-110, at 79.

V. The connection between the problem statement and the research sub-questions

8. Seeing the advancement of technology and available solutions to better enforce IHL, the study’s problem statement is about the legitimacy of ‘belligerent reprisals’ in the present-days’ conflicts. In this vein, the sub-questions are useful to better understand the reason behind the unpopularity of ‘reprisals’ in the world of today and to analyze the reason behind the existing gap between international criminal law (ICL) and international humanitarian law (IHL) as regard reprisals.

VI. Research Objective

9. The present study provides arguments to find out what is right: a matter of perspective. Seeing the controversy posed by ‘reprisals’, this research study aims at assessing their legitimacy in present-days’ conflicts and those in days to come. Indeed, it was deemed pivotal to analyze not only the possible reason(s) behind the inconsistencies between international criminal law and its major source, the international humanitarian law, with regard to reprisals, but also their growing unpopularity among the international community of States. The result of the study will eventually give rise to comments of other scholarly works, thus contributing to the fair and effective enforcement of the LOAC to suit today’s realities.

VII. Research Methodology

10. The choice of appropriate techniques and methods is useful to conduct a reliable research. Therefore, it has been of central importance to resort to different techniques and methods. In the research process of the present thesis, a documentary technique was used to get a doctrinal contribution to the raised problematic viz. the literature review of textbooks, case-laws and some international law journals relating to the concept of ‘belligerent reprisal’. 11. In addition, the descriptive and analytical methods were also useful. The descriptive method was used to come up with the today’s reality on ‘belligerent reprisals’ as they were being opposed with other mechanisms of enforcing IHL. The analytical method, on the other hand, facilitated to use the available facts or information, and analyze them to make a critical evaluation of the material and practice.

VIII. The scope of the research study

12. This study is part of public international law, more particularly the combination of international humanitarian law and international criminal law. The study analyzes the gap between the aforesaid branches of law in the context of belligerent reprisals and the growing unpopularity of reprisals, thus challenging their legitimacy as means of enforcing the humanitarian law. Indeed the concept of ‘reprisal’ takes a different description depending on the point in time when it is assessed. Reprisals resorted to during peacetime are called peacetime or armed reprisals and taken by one State against another in response to a prior violation of international law by the latter.17 And reprisals taken during an ongoing armed conflict situation are termed “Belligerent reprisals”.18 The present research merely confines its analysis to the latter.

IX. Provisional Outline

13. Apart from the general introduction and conclusion, the present thesis comprises three chapters. The first chapter sifts on the general consideration on reprisals by differentiating the latter from the concept of ‘self-defence’, another form of self-help measures used by States under international law. Seeing the gap between IHL and ICL as regards the conceptualization of reprisals, the second chapter delves into the gap between ICL and IHL in the context of reprisals as well as the reason behind the same inconsistency. 14. Actually, the ‘belligerent reprisals’ do not seem to replace the criminal justice or other modes of disputes settlement, but to justify the illegality on one hand, and ultimately to induce the enforcement of law on the other. From this perspective, a critical analysis on the reprisals as means of enforcing the current IHL is made in the third chapter. Moreover, a sub-question as to why reprisals eventually became unpopular and other means of sanctions, as well as the reprisals’ connection to legitimacy are analyzed in the same chapter to confirm the hypothesis regarding the legitimate means of enforcing a law which correspond to the current social needs. Finally, a conclusion justifies the required changes to adequately ensure ultimate and most suitable enforcement of IHL: the absolute ban of reprisals.

17 Y. Dinstein, War, Aggression and Self-Defence, CUP 1994 (2nd ed.), pp. 215-226. 18 F. Kalshoven, n. 2.

Chapter One: BELLIGERENT REPRISALS: A General Understanding on Forcible Self-Help Measures of States under International Law

1.0. Introduction

15. Under international law, it is accepted that international law may be enforced by way of the self-help measures of the affected or injured State(s). Until the beginning of the twentieth (20th) century, States could rely on use of military force not only to settle their differences with other States and pursue their interests, but also to enforce their rights.19 The doctrine of reprisals, also dubbed by scholars as ‘forcible self-help’ measures,20 taken to induce compliance with international obligations and the inherent right of national self-defence are both forms of forcible ‘self-help’ measures taken by States.21 16. The present chapter seeks to present an overview on the (belligerent) reprisal. But, because the latter concept is not the only coercive means of States under international law, it is deemed important to show its difference with the concept of self-defence, thus shedding more light on the former concept. So, Section One goes through belligerent reprisals whereas the concept of self-defence is discussed in Section II before making a concluding remark.

1.1. Reprisals

17. The reciprocal character of classical international law and of the law of armed conflicts in particular, is manifested in the doctrine of reprisals.22 While armed reprisals or measures of counter-force, short-of-war are prohibited, unless they have a defensive purpose (see Chap. 1, Sect. 2), belligerent reprisals are resorted to by belligerents in the midst of the ongoing hostilities.23 This section gives a descriptive definition of the concept of ‘reprisals’, its brief historical background and the conditions under which they are allowed.

19 A. Cassese, International Law, OUP 2001, p. 229. 20 R. Barsotti, n. 17. 21 T. D. Gill, ‘Temporal Dimension of Self-defence: Anticipation, Pre-emption, Prevention and Immediacy’ [Chap. 5], in M. N. Schmitt, J. Pejic (eds.), International Law And Armed Conflict, Exploring the Faultlines: Essays in Honour of Yoram Dinstein, Martinus Nijhoff Publishers 2007, pp. 113-155, at 152. 22 T. Meron, The Humanization of International Law, Martinus Nijhoff Publishers 2006, The Hague Academy of International Law, (Vol. 3), pp. 11-12. 23 F. Kalshoven, n. 2, pp. 33-6.

A. Definition

18. The scholarly writings define the concept of ‘reprisal’ in international armed conflict as an act by one belligerent, otherwise in violation of one or more rules of the law of armed conflict, in response to an unlawful act of war by the adverse party, and carried out to compel that other belligerent to stop unlawful acts of war and to comply henceforth with its obligations under the laws of war.24 F. Kalshoven (2005), has defined ‘reprisals’ taking into consideration of other reprisals occurring during peacetime and taken by not only states but also other entities enjoying a degree of international personality.25 19. The classic definition of reprisals in international law contexts is found in the Naulilaa case, in which the international arbitration tribunal stated:

“Reprisals are an act of self-help on the part of the injured states, responding after an unsatisfied demand to an act contrary to international law on the part of the offending State . . . . They would be illegal if a previous act contrary to international law had not furnished the reason for them. They aim to impose on the offending State reparation for the offense or the return to legality in avoidance of new offenses.”26

20. In the afore-mentioned dispute (Naulilaa case), the October 1914 military raid carried out by Germany which sank the Portuguese ship and destroyed the property it was carrying, in response to the prior mistaken killing of three German nationals, could not be qualified as the ‘legitimate reprisals’ because the killing was in a manner that did not violate international law. The International Arbitral Tribunal rejected the German claim on all three grounds or prior conditions under which the Germany’s six (6) reprisals would be subjected in order to gain legitimacy. Those grounds are: (i) a previous act by the other party that violated international law; (ii) an unsatisfied prior demand for reparation or compliance with the violated international law; and (iii) reprisal to be commensurate to the offence.27 These and other further conditions required to be fulfilled before resorting to reprisals will be discussed in a separate paragraph.

24 Y. Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, CUP 2004, p. 220; F. Kalshoven and L. Zegveld (eds.), Constraints on the Waging of war: An Introduction to International Humanitarian Law, ICRC, Geneva 2001(3rd ed.), p. 76; T. Meron, Above n. 23; S. Darcy, ‘Retaliation and Reprisals’, n. 15, p. 879. 25 F. Kalshoven, n. 2, p. 33. 26 Portuguese–Germany Mixed Arbitral Tribunal, Portuguese Colonies Case [Hereinafter referred to as Naulilaa incident], Portugal v. Germany (UNRIAA, vol. II, p. 1011-1033, Lausanne, 31-07-1928), pp.1025-1026. 27 M. Shaw, International Law (6th ed., CUP, 2008), p. 1129.

B. Historical background of ‘reprisals’

22. The practice of reprisals dates from the period of Christian Just War period when States had the right to punish other states and most violence was inspired by what St Augustine called libido dominandi or lust for domination.28 Traditionally, the concept of “reprisal” was used to cover otherwise unlawful action, including forcible action, taken by way of self-help in response to a breach.29 They emerged as private reprisals in the context of international relations, and they could be taken against individual persons (foreigners) by or on behalf of private persons to claim and collect external debts by confiscating goods of foreign debtor because of the obvious impracticability of collecting the debt by way of normal means including the enforcement of a legal title.30

23. In fact, the ‘self-help’ practice of States has been a result of the lack of a centralized body to enforce the legitimate claims in the international community,31 like it was the case, for instance during the Roman Empire, such as protection of the national sovereignty. And “redressing an injury” has been one of the permissible causes of war.32 Regrettably, the revenge was a motive for attacks and the brutality in wars was characterized by killing the entire population or enemies, both combatants and non-combatants.33

24. The doctrine of ‘reprisals’ continued to raise concern in the laws of war. In the 1880 conference, the Institute of International Law resolutely discussed reprisals in its “Oxford Manual on the Laws of Land Warfare”, and stated that they (reprisals) would remain necessary to recall the enemy to respect the law, but on condition that the persons who committed war

28 Augustine, Concerning the city of God Against the Pagans 556-558 (H. Bettenson trans., Penguin Books, 1972, Harmondsworth, England). 29 E. de Vattel, The Law of Nations; or the Principles of Natural Law, (1758) (Washington D.C., Carnegie Institution) vol. II, chap. XVIII, §342, p. 283. 30 F. Kalshoven, n. 2, at 1; W. Spiegel (Hans), ‘Origin and Development of Denial of Justice’, in A. Media (ed.), International in the Twentieth Century (ASIL, 1969), pp. 518-536, at 521 et seq. 31 F. Kalshoven, n. 2, p. 3. 32 A.C. Arend and R. J. Beck, International Law and the use of Force: Beyond the UN Charter Paradigm, Routledge 1993, N.Y., p. 13. 33 R. Stacey, ‘The Age of Chivalry’, in M. Howard et al., The Laws of War; Constraints on Warfare in the Western World, Yale University Press 1994, New Haven, p. 28.

9 crimes were not individually punished in accordance with penal provisions,34 and reiterated that the reprisal action “must conform in all cases to the laws of humanity and morals”.35

25. Like the Oxford Conference, the Brussels’ Conference, although it had declined to discuss the topic on reprisals, reiterated that belligerents do not have unlimited power even to injure the enemy,36 neither do they have to murder individuals belonging to the hostile nation as well as the PoWs.37 Later on, the subject of reprisals was raised in the Hague Peace Conferences of 1899 and 1907 but did not find its way in Hague Rules.38

26. Though the scholarly writings from other States did not support the reprisals during WWI, reprisals were frequent especially on the part of Germans with an open support of their scholars who maintained the position that reprisals were not subject to any limitations.39 At the beginning of the 20th century, Oppenheim, the German jurist brought into the open the recourse to reprisals as a way of enforcing the law in reaction to a prior violation:

“... If members of the armed forces commit violations by order of their Government, they are not war criminals and cannot be punished by the enemy; the latter can however, resort to reprisals……”40

27. Later on in 1940s, the formulation of the UN Charter was inspired by the principle of the (general) prohibition on the use of force in the international relations between States,41 and armed reprisals short-of-war could be excluded,42 and replaced by the ‘countermeasures’ or

34 Oxford Manual), art. 84. See also D. Schindler and J. Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher 1988, pp. 36-48. 35 Ibid., art. 86 (3). 36 Ibid., art. 4. 37 Project of an International Declaration concerning the Laws and Customs of War (Brussels Conference of 1874, Brussels, 27.08.1874), art. 12, 13 (b) (c). see also D. Schindler and J. Toman, n. 35, pp. 22-34. 38 The Hague Peace Conferences of 1899 and 1907 (The Hague, Netherlands). These are a series of negotiated international treaties and declarations which never made any reference to belligerent reprisals but recalled the respect for the laws of war (e.g. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907 (Entry into force 26/01/1910; 187 CTS 227; 1 Bevans 631); S. C. Neff, Justice in Blue and Gray: A Legal History of Civil War, Harvard University Press 2010, p. 64. 39 K. Strupp, Élément du Droit International Public 344 (2nd ed., 1930), cited in S. E. Nahlik, Belligerent Reprisals in the Light of the Diplomatic Conference on Humanitarian Law Geneva, 1974-1977 (42 Law & Contemp. Probs. 2, 1978), p. 39. 40 L. F. L. Oppenheim, International Law (vol. 2, London, 1906), at 264-5 cited in Y. Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law, Sijthoff 1965, Leiden, p. 38. 41 UN Charter, art. 2 (4). 42 I. Brownlie, Principles of Public International Law, OUP 2008 (7th ed.), p. 466.

‘non-armed reprisals’ and the doctrine of ‘belligerent reprisals’ during situations of the international armed conflicts (IAC) when the law of armed conflict is violated was not totally banned under IHL.43 More recently, the term “reprisals” has been taken as equivalent to ‘belligerent reprisals’ or limited to action taken in time of international armed conflict.44 It is seemingly the reason behind the introduction of the term ‘countermeasure’ to replace the term ‘reprisal’ which is strongly associated with ‘armed reprisals’ which are illegal during peacetime by virtue of the general prohibition on the use or threat of force in international relations of States under the article 2 (4) of the UN Charter. All in all, the right to take a reprisal action is subject to a number of conditions discussed in the next paragraph.

C. Conditions to resort to reprisals

28. The international community of states restricted the extent to which those laws may be breached by way of belligerent reprisal; seemingly to increase the protection of the protected group viz. civilians and those who are no longer taking part in hostilities as well as their properties.45 Hence, reprisals are subject to five strict conditions:46 (i) the purpose of reprisals; (ii) reprisal being a measure of last resort; (iii) proportionality; (iv) decision to be taken at the highest level of government; and (v) terminating reprisal as soon as the offending State(s) complies with its international obligation(s). 29. Firstly, ‘reprisals’ are illegal ab initio, but they are considered lawful in case they are taken in reaction to a prior serious violation of international law, and only for the purpose of inducing the adversary to comply with the law. In addition to a return to legality by the avoidance of further offences, the international arbitral tribunal, in the Naulilaa incident case, added "effecting reparation from the offending state for the offence” as a second object of a

43 Y. Dinstein (2004), n. 25. 44 ILC, Yearbook of the International Law Commission 2001, vol. II, Part Two (A/CN.4/SER.A/2001/Add.1), p. 128. 45 Reprisals against protected persons and property are expressly prohibited in all four Geneva Conventions of 1949 and in the Hague Convention of 1954 on Cultural Property. 46 See IHL Customary Rule 145.

11 reprisal.47 Nonetheless, it is open to further argumentations as to how the reparation of the injury can be made by way of reprisals. It stands to reason that in the situation of belligerent reprisals, the object of effecting reparation carries skepticism in itself. 30. Secondly, reprisals may only be carried out as a measure of last resort. This precondition implies the principle of subsidiarity. The reprisal action is not an automatic reaction following the injury, but the right to take a reprisal is only exercised when there are no other available means of enforcing the laws of war. Moreover, reprisal may only be resorted to after a warning is issued beforehand to the violator or offending party has remained unheeded.48 The notice must be a formal warning to the offending State of the reprisal action due to be carried out. Therefore, reprisals carried out in secret should be deemed illegitimate as they may not have deterrent effect.49 However, the requirement of “unsatisfactory demand” for reparation is not uniformly supported by State practice or scholarly writings, hence inappropriate in some situations.50 31. Thirdly, reprisal action must be commensurate to the violation it aims to stop. The proportionality is necessary to protect the subjective interests of the State (to which the reprisal is directed) against over-reaction.51 Though proportionality is a customary demand to legitimize the response to unlawful conduct, it is not easy to determine the standard by which the proportionality has to be measured. Above all, the ultimate aim of a belligerent reprisal is to bring the offending State back to the legal status quo ante.52 And it stands to reason that the damage and suffering inflicted on the adverse party should not exceed the level of damage and suffering resulting from its unlawful conduct. The proportionality principle plays a pivotal role to ensure the response to a violation of law is proportional to the violation thus making it clear to the party that violated the law that this is a so-called legal reprisal or lawful action. Under the law of belligerent reprisals, the proportionality is no longer measured by the immediate

47 Naulilaa Case, p. 1026. 48 Ibid., §203. 49 M. S. McDougal & F. P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion, Yale University Press 1967, New Haven, p. 689. 50 P. Malanćzuk, ‘Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission's Draft Articles on State Responsibility’, in M. Spinedi and B. Simma (eds.), United Nations Codification of State Responsibility, Oceana Publications 1987, N.Y., pp. 197-286, at 197 & 214. 51 E. Cannizzaro, ‘The Role of Proportionality in the Law of International Countermeasures, EJIL 12 (2001), p. 890. 52 K. Anderson, “Quick note on proportionality jus ad bellum and the law of belligerent reprisal” (Jul 26, 2006) [Online].

12 provocation, but by a State’s assessment of the underlying threat to avoid the culmination to a full conflict.53 32. Fourthly, the decision to engage in belligerent reprisals must be taken by a competent authority. The belligerent reprisal can only be resorted to with the authorization of the commander in chief,54 who is, in most cases, the supreme leader of the country but that might vary from country to country. Fifthly, and finally, the reprisal action must cease as soon as the adversary or the original violator complies with the law or in other words he has stopped violation of LOAC. Therefore, reprisals have a temporary character.

1.2. (National) Self-Defence

A. General

31. The concept of self-defence under international law refers to the lawful reaction of the injured State(s) to quash the unlawful behavior, which led to the injury, of another State. Dinstein, a famous scholar in his publications on the use of force under international law, defined the concept of ‘(national) self-defense’ as: “The right of a State to forcibly respond to an armed attack originating or controlled and directed from outside its territory against its territory, citizens, vessels, aircraft or military personnel stationed abroad, or which are situated in international sea or airspace.”55 32. B. Simma gave the gist of the armed attack:

“….State is bound to endure acts of force that do not reach the intensity of an armed attack, thus remaining devoid of any effective protection until the SC has taken remedial measures. … It cannot be overlooked that being caught in the ‘dilemma between security and justice,’ the UN Charter deliberately gives preference to the former.”56

53 Ibid. 54 S. Darcy, ‘What Future For Belligerent Reprisals?’, in H. Fischer & A. McDonald (eds.), Yearbook of International Humanitarian Law – 2002, CUP 2011, p. 108. 55 Y. Dinstein, War, Aggression and Self-Defence, (4th ed., CUP, 2005), p. 175 et seq. cited by T. D. Gill, ‘Legal Basis of the right of self-defence under the U.N. Charter and Under Customary International Law’, in T. D. Gill and D. Fleck (eds.), The Handbook of International Law of Military Operations, OUP 2010, London, pp. 187– 198, at 187. 56 B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, OUP 2002, (2nd ed.), p. 792.

33. Unlike the belligerent reprisals, the right of States of self-defense carries a preventive or protective aspect in itself instead of being sanctions of law like the former concept. In addition, while reprisals are taken in response to prior violation of humanitarian law, the right of self- defense is exercised to what merely amounts to an ‘armed attack’ to legitimize the use of force.57 For the purpose of the present chapter, it is important to contextualize the concept of self-defence on the restrictive view of the UN Charter as a coercive measure taken after suffering a particular injury in order to differentiate it from ‘belligerent reprisal’, thus making the latter concept more explicit.

B. The Legal criteria for the invocation of the right of (national) self-defence

34. Under international law, there exist two bases in determining the legality and recourse to the right of national self-defence viz. the article 51 of the UN Charter and customary international law, concomitantly alluded to in the aforesaid provision of the Charter as a pre- existing customary international law; in the term "inherent right" of individual or collective self- defence, which is not impaired by the UN Charter in the event qualified as an ‘armed attack’.58 It stands to reason that an ‘armed attack’ activates the action in self-defence. 35. Though, when a State facing an ‘armed attack’ may exercise the right to defend itself by use of force against the unlawful conduct of the attacker till the Security Council (SC) is able to take action,59 the legitimacy of the action(s) in self-defense also depends, inter alia, on meeting the customary law demands of immediacy, necessity and proportionality,60 reasonably considered in response to force by counter-force.61 Besides, the application of those principles in the ‘armed attack takes into account a number of factors such as the scale of the force; the

57 ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) 1986, Merits, ICJ. Reports 1986, p. 14, at §176) [Online]. According to the court, ‘an ‘armed attack’ must be understood as including not merely action by regular armed forces across an international border’. 58 Ibid.. 59 A. C. Arend and R. J. Beck (eds.), International Law and the Use of Force: Beyond the U.N. Charter Paradigm, Routledge 2014, p. 31. 60 T.D. Gill, ‘The Temporal Dimension of Self-Defence: Anticipation, Pre-Emption, Prevention and Immediacy ’, 11 J Conflict & Security Law 3 (2006), pp. 368-369. 61 K. W. Quigley, ‘A Framework for Evaluating the Legality of the United States Intervention in Nicaragua’, 17 NYUJILP 155, 180 (1984-5) cited in Y. Dinstein, War, Aggression and Self-Defence, CUP 2011 (5th ed.), p. 233; R. Ago, ‘Special Rapporteur to the International Law Commission’, Eighth Report on State Responsibility, (1980) ILC Yrbk, ii, I, 13, §120, UN Doc A/CN.4/318/ADD.5–7.

14 military nature of the attack; the identity of the attacker; the availability of alternatives; likelihood of outside assistance, etc.62

C. Self-defense Criteria: Immediacy, Necessity and Proportionality

36. The principles of necessity and proportionality to limit the scope of self-defence as well as the requirement of immediacy supplement the conditions set out under the jus ad bellum (under the UN Charter). While ‘necessity’ is generally taken to refer to the last resort to force, rather than to non-forcible measures, requirement of attack and foreseeability of the continuity of the attack, ‘proportionality’ assesses the magnitude of the force used.63 37. The immediacy means that there should not be an undue time-lag between the armed attack and reaction in self-defence,64 and has the connotation of imminence of the threat and a requirement for taking an action in self-defence within a short span of time subsequent to an attack in order to make a clear distinction between self-defence and reprisal. In fact, the immediacy serves as the dividing line between the use of force in self-defense and the armed reprisal or reprisal short-of-war which lacks a legal basis under modern international law.65 If the counter-attack does not occur with the reasonable time, it would instead amount to reprisal short- of-war. 38. Therefore, the boundaries between self-defence and armed reprisal remains blurring since immediacy does not serve as a requirement that the force in self-defence must immediately follow the suffered attack.66 This holds true since it might not be possible for the attacked State for various reasons including, but not limited to, the degree of preparedness including the battlefield area evaluation, threat evaluation and threat integration, all entailed in the operational planning process up to the deployment of the combat power, etc.

62 T. D. Gill, ‘Legal Basis of the right of self-defence under the U.N. Charter and Under Customary International Law’, in T. D. Gill and D. Fleck (eds.), The Handbook of International Law of Military Operations, OUP 2010, London, pp. 187–198, at 190. 63 Y. Dinstein (2011), n. 62, p. 232; E. Cannizzaro, ‘Contextualizing proportionality: jus ad bellum and jus in bello in the Lebanese War’, 88 IRRC 864 (2006), p. 779; A. Cassese, International Law, OUP 2005, London (2nd ed.), p. 355. 64 Y. Dinstein (2011), n. 62; T. Gazzini, The Changing Rules on the Use of Force in International Law (Manchester University Press, 2005), at 143; 65 T. D. Gill, ‘Temporal Dimension of Self-defence: Anticipation, Pre-emption, Prevention and Immediacy’, in M. N. Schmitt & J. Pejic (eds.), International Law And Armed Conflict, Exploring the Faultlines: Essays in Honour of Yoram Dinstein, Martinus Nijhoff Publishers 2007, pp. 113-155, at 151. 66 Ibid., p. 153.

D. Modalities of Self-defence

39. Dinstein has made distinction between three main modalities of self-defence viz. (i) On- the spot reaction; (ii) Defensive armed reprisals; and (iii) war.67

(a) On-the-spot reaction

40. This modality of self-defence consists of the situation of small-scale armed attack most- likely taking place on the borders of States or on High Sea waters where two States’ forces might collide. Dinstein believed that the concept of ‘On-the-spot reaction’ is more accurate than ‘unit self-defence’. The latter concept is, however, valid in the scholarly writings to denote the unit level expression of national self-defense of the State,68 and must be in response to an attack or an imminent attack.69 In this situation, the tactical military commander is the one assessing the customary demands of necessity and proportionality, and the latter criterion requires the force and counter-force to be similar in ‘scale and effects’.70

(b) Defensive armed reprisal

41. While reprisals short-of-war are unlawful, the argument of Y. Dinstein is controversial when he acknowledges the permissibility of defensive armed reprisals under the scope of article 51 of UN Charter. However, like ‘On-the-spot’ reaction, defensive armed reprisals are guided by the norms of jus in bello,71 and their legality falls within the scope of the jus ad bellum. While for some scholars the illegitimacy of ‘armed reprisals’ is assessed on the fact that they take place after the harm has already taken place and hence their purposes is punitive rather than defensive,72 Schachter could infer that: “whereas punitive armed reprisals are forbidden, ‘defensive retaliation’ is justified when its prime motive is protective.”73

67 Y. Dinstein (2011), n. 62, p. 242 et seq. 68 F. R. B. Hosang (Hans), ‘Force Protection, Unit Self-Defence, and Extended self-Defence’, in T. D. Gill & D. Fleck, The Handbook of International Law of Military Operations, OUP 2010, London, pp. 415-427, p. 420. 69 D. Stephens, ‘Rules of Engagement and the Concept of Unit Self Defence’ 45 Naval Law review (1998), pp. 126-151, cited by F. R. B. Hosang (Hans), above n. 69. 70 T. Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice, CUP 2010, p. 181. 71 Y. Dinstein (2011), n. 62, p. 246. 72 D. W. Bowett, ‘Reprisal involving recourse to armed force’, 66 AJIL 1 (1972), pp. 1-36, at 3. 73 O. Schachter, ‘The Right of States to Use Armed Force’, 82 Mich.LR 5/6 (1984) 1620-1646, at 1638.

42. The same reasoning was supported by some legal scholars who justified the legitimacy of the armed reprisal when they are merely defensive under the realm of UN Charter.74 During the conduct of the defensive armed reprisals, the responding State hit a different target from the one(s) of the original armed attack,75 at the same time taking into account third party’s rights. Like in ‘On-the-spot reaction’, the proportionality in defensive armed reprisal seeks to approximate the unlawful force and lawful counter-force in ‘scale and effects’.76 43. Theoretically, coercive measures against a rogue State should not serve as a punishment. However, the inconsistency of States practices prove it practically different and it does not hold true for most, if not all, situations. For instance, the incident of November 11, 1966, in which an Israel border patrol vehicle ran over a land mine, and lost its three soldiers, led to a retaliatory action of Israeli Defence Force (IDF) into Jordanian territory that killed several civilians and some Jordanian soldiers and hundreds of houses destroyed by Israeli tanks, and followed by a mere condemnation of UNSC.77

44. In case the attempt of an amicable settlement of the conflict is not reached, an isolated armed attack is followed by full-scale hostilities. States are not willing to be overrun for the sake of negotiating peaceful solutions. Thus, it becomes a necessity to resist the ongoing hostilities.78 As regards proportionality in the war of self-defense, it has to be assessed throughout the hostilities in the course of war,79 instead of the approximation in ‘scale and effects’ between the unlawful force and lawful counter-force in situations of ‘On-the-spot’ reaction and ‘defensive armed reprisals’.

74 Y. Dinstein, n. 64, p. 245; 75 Ibid. 76 T. Ruys, Above n. 71. 77 J. Quigley, The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War, CUP 2012, p. 9. 78 Y. Dinstein, (2005), n. 56, p. 237. 79 Ibid., citing J. G. Gardam, ‘Proportionality and Force in International Law’, 87 AJIL 391, 404 (1993).

1.3. Conclusion

45. To wind up, it was argued that self-defence and belligerent reprisals are both coercive and self-help measures an affected State can take under international law. Reprisals resemble actions of self-defense in that they are meant to prevent illegalities of a belligerent State and ensure they are not repeated. In other words, reprisals and self-defence are forward-looking and non-retaliatory in intention. However, they differ in terms of their purposes and objectives.80 While ‘belligerent reprisal’ is a law enforcement measure,81 the self-defence is a lawful reaction to quash an unlawful armed attack and defeat it. In fact, the reprisal action consists of a violation of LOAC; and an action in self-defence should abide by the ius in bello. 46. Lastly, reprisals continued to be a part of laws of war with slight acceptance in the written law. During the pre-Charter period, the right to take a reprisal was principally accepted, but subject to customary and necessity to avoid escalation of hostilities. Traditionally, reprisals have been an important medium to enforce the law by unusual severity and their efficacy has been indisputable due to lack of alternative means of enforcing the law, but they might not be carried out as a revenge or punishment,82 and their scope during the post-WWII era is assessed in the next Chapter.

80 Y. Dinstein (2011), Above n. 62, p. 152. 81 T. Gazzini, n. 65, p. 163 et seq. 82 J.M. Henckaerts and L. Doswald-Beck (eds.), Above n. 3, p. 515.

Chapter II: INCONSISTENCY BETWEEN IHL AND ICL IN THE CONTEXT OF BELLIGERENT REPRISALS

2.1. General

47. It is important to understand the complementarity of IHL and ICL, as subsets of public international law, from which an inference regarding their gap in the context of reprisals is drawn. While IHL protects the war victims, ICL punishes the acts, in violation of IHL obligations, amounting to international crimes. Under the IHL, some actions amounting to war crimes or crimes against humanity may not lead to any liability of the offending party as long as they are connected to an armed conflict.83 This way of undermining the values of humanitarian law might be seen in the doctrine of ‘belligerent reprisals’ or in other words violation of IHL serving as enforcement mechanism. 48. However, the defence of the aforesaid violations is not upheld by the current international criminal law as it will be seen later in section 3 of this chapter. The present chapter seeks to analyze the gap between these two branches of international law in the context of reprisals. Section I discusses the place of reprisals as a legal concept under the international humanitarian law. Secondly, the position of the international criminal law with regard to reprisals is looked at in Section 2. Thirdly, the effects of reprisals on IHL will be briefly discussed in the third section. Finally, the answer to the question regarding the possible reasons behind the gap between IHL and ICL, as far as the belligerent reprisals are concerned, is contained in the concluding remark.

2.2. The Scope of Reprisals Under the Modern LOAC

49. The practice describing the purpose of reprisals and conditions to which they are subjected refers to ongoing inter-States’ armed conflicts. So, the present Section does not cover the situation of a non-international armed conflict character whose parties do not have the right

83 G. Werle & F. Jeßberger (eds.), Principles of International Criminal Law, OUP, 2014 (3rd ed.), p. 259.

19 to resort to belligerent reprisals,84 and the non-materialization of reprisals in NIAC situations was confirmed by the ICRC study of 2005.85 In order to understand the place of reprisals under IHL, it is important to discuss the States’ duty to respect IHL. The first paragraph covers the duty of the High contracting parties (States) to Geneva Conventions and their 1977 Additional Protocols to ensure the better compliance with their humanitarian obligations. The second paragraph summarizes the prohibitions of reprisals laid down in the 1949 Geneva Conventions, the 1977 Additional Protocol I and 1980 CCW.

A. Duty of States to respect and ensure respect of IHL

50. The duty to respect and ensure respect of IHL stems from the general principles of IHL to which the 1949 Geneva Conventions give specific expression.86 The respect for GCs is stipulated in article 1 common to the four Geneva Conventions, and it reads: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” The same wording of the said article was reiterated in 1977, referring to respect for the Protocol (I) Additional to the 1949 GCs.87 51. In its commentary on common Article 1 of the 1949 Geneva Conventions, the ICRC has reiterated that the duty to “ensure respect” is not limited to behavior by parties to a conflict, but includes the requirement that States do everything in their power to ensure that international humanitarian law is respected on the international plane.88 In fact, ensuring respect of the IHL carries the erga omnes obligations of the High Contracting parties to the 1949 Geneva Conventions and their 1977 Additional Protocols. Additionally, ensuring respect for IHL is a practice reflected in the inference drawn by the IHL customary rule 144 which reads that:

84 ICRC, Rule No. 148; See also UN General Assembly, Res.48/152(A/RES/48/152, 85th plenary meeting of 20 December 1993) and Res.49/207,(UNGA A/RES/49/207, 94th plenary meeting of 23 December 1994) on Situation of human rights in Afghanistan. In these resolutions, the UNGA strongly condemned measures of reprisals against civilians in Afghanistan. 85 ICRC Study, Above n. 3, p. 527. 86 ICJ, Nicaragua Case, §220. 87 AP I (1977), art. 1(1): «The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances». Article 1 AP I was adopted by 87 votes in favor, 1 against and 11 abstentions. 88 Y. Sandoz et al. (eds.), Commentary on the Additional protocols, ICRC 1987, Geneva, §45.

“States may not encourage violations of international humanitarian law by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of international humanitarian law.” (IHL Customary Rule 144).

52. It may be interpreted that “….do all in their power to ensure that IHL is respected universally” implies that an injured High Contracting party (due to prior violation of IHL rules) may, in return, take a reprisal action purposely to stop further violations of IHL and ensuring potential respect for it. However, the interpretation of the condition of taking reprisal action as a measure of last resort, when no other possibility is available, should not ignore that States must take into account the possibility of appealing to other States and international organizations to help put a stop to the violations.89 The 1977 Protocol Additional to four GCs (AP I) provides that: “In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.”90

B. Prohibitions of belligerent reprisals under IHL

53. Under modern international humanitarian law, belligerent reprisals have been limited but not completely outlawed.91 The purpose of such limitations is undoubtedly the protection of the defined classes of persons and objects, as well as the environment;92 thus ensuring the respect of the underlying principles of humanity. The prohibitions of belligerent reprisals are laid down in the Four Geneva Conventions of 12 August 1949, the 1977 Protocol Additional to the 1949 Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (AP I), as well as the 1980 Mines Protocol (II) and its 1996 Amendment, attached to the 1980 Conventional Weapons Convention.

89 See also commentary to IHL Customary Rule 144, in J-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, CUP 2005, (Vol. I: Rules), p. 512. 90 AP I (1977), art. 89. The voting of this article, however, got a considerable abstention: adopted by 50 votes in favor, 3 against and 40 abstentions. 91 S. Darcy, ‘The Evolution of the Law of Belligerent Reprisals’, 175 Military Law Review (2003), pp. 184-251. All four GCs (1949) prohibit reprisals against, respectively, wounded combatants, shipwrecked survivors, PoW, and civilians, as well as certain buildings and property. The 1977 Protocol additional to 1949 GCs (AP I) extends the protection to cover historic monuments, works of art and places of worship [See 2.2.B]. 92 S. Oeter, ‘Methods and means of combat’, in D. Fleck (ed.), The Handbook of International Humanitarian Law, OUP 2013, (3rd ed.), pp. 105, 204–207, § 476–479.

1. Prohibitions under the 1949 GCs

54. Although the 1949 GCs do not make any reference to the legitimacy of reprisals, the pre- conditions developed by the ICRC (customary rule 145), discussed in Chapter One, need to be fulfilled for reprisals to gain legitimacy. Now, reprisals have a very narrow place under the modern IHL. Reprisals were limited to protect certain categories of persons and objects under the 1949 Geneva Conventions. GC I introduced provisions prohibiting reprisals against the wounded, sick, personnel, buildings or equipment protected by the Convention.93 Reprisals against the wounded, sick and shipwrecked persons, the personnel, the vessels or the equipment protected by the Convention are prohibited under GC II.94 Besides, the prohibition of measures of reprisal against prisoners of war is laid down in GC III.95 And GC IV protects civilians and their properties against acts of reprisals.”96

2. Prohibitions of reprisals under 1977 AP (I)

55. The rules set down in the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (AP I) expanded the categories of persons and objects to be protected from reprisals actions. Thus, reprisals against wounded, sick and shipwrecked be it, military or civilians and objects are prohibited.”97 The same protection expanded to other objects and persons such as medical personnel, religious personnel, medical units, medical transports and transportations, medical vehicles, ships, craft, and aircraft (article 8 AP I). 56. Indeed, the Protocol also introduced the prohibition of reprisals against the civilian population or civilians,98 their objects indispensable to the survival of the civilian population (art. 54, 4), the protected cultural objects and places of worship (art.53 (c)), thus limiting the attacks strictly to military objectives (art. 52, 2). Article 53(c) (AP I) adds little to those prohibitions already established under the 1954 Hague Cultural Property Convention (art. 4).99

93 GC I, art. 46. “94 GC II, art. 47. 95 GC III, art. 13 (3). 96 GC IV, art.33 (3). 97 AP I, art. 20. 98 Ibid., art. 51 (6). Civilians need not to be taking a direct part in hostilities in order to enjoy the protection of the protocol [AP I, art. 51 (3)] 99 Hague Cultural Property Convention, 1954, art. 4 (4) which establishes that the contracting parties “shall refrain from any act directed by way of reprisals against cultural property”.

57. Nonetheless, the protection of a property may be waived on basis of "imperative military necessity".100 But the waiver of protection is allowed when those objects have been made into military objectives and after effective advance warning was given.101 Furthermore, AP I prohibits attacks by way of reprisals against the natural environment (art. 55, 2) and works and installations containing dangerous forces the release of which may entail severe losses of the civilian population”(art. 56, 4).

3. Prohibitions under the Protocol II to the 1980 CCW

58. The Protocol II to 1980 CCW prohibits in all circumstances direct weapons, like mines, booby-traps and other devices designed to kill, injure or damage and which are actuated by remote control or automatically after a lapse of time, either in offence defence or by way of reprisals, against the civilian population as such or against individual civilians.102 The Protocol applies in the situations referred to in article 2 common to 1949 GCs for the protection of War victims, including any situation described in article 1 (4) of 1977 Protocol (I) Additional to GCs103 when people are fighting against aliens and against their regimes in the exercise of their right of self-determination in accordance with UN Charter.

2.3. ICL and The Doctrine of Belligerent Reprisals

59. Unlike under the LOAC, the doctrine of belligerent reprisals in which a belligerent claims the right to enforce the law in respect to the opponent (State)104 and at the same time leaving the reprisal taker immune from punishment,105 has not gained support under international criminal law. In the present section, it was deemed important to justify the logical standpoint of ICL in the

100 Hague Cultural Property Convention (CCP), 1954, art. 4 (2). 101 Protocol II to 1954 CCP, art. 6. 102 The 1980 Protocol on the prohibitions or restrictions on the use of mines, booby-traps and other devices as amended on 03 May 1996 (Protocol II to 1980 CCW; Entry into force 03 December 1998), art. 3 (2). 103 United Nations, Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects (as amended on 21 Dec 2001 [UN, 1342 UNTS 137], 10 October 1980, entry into force 02 Dec 1983, Reg. No.22495), art. 1 (1). 104 F. Kalshoven, n. 2, p. 369. 105 Ibid., p. 367.

23 context of reprisals. The same justification will be covered in paragraph one whereas; the second paragraph covers a summary of some war crimes trials in which defences of reprisals were raised. The last paragraph seeks to assess whether reprisals are likely to have a place under the Rome Statute in the context of possible defences under the international criminal law.

A. Justification

60. This paragraph seeks to justify the position of ICL in the context of reprisals. In order to come up with a better argumentation, it is deemed important to discuss a little bit the relationship between ICL and IHL with regard to the implementation of the latter; thus recalling the role ICL has played to date in the implementation of IHL rules. Actually, the relationship between the ICL and IHL is close. IHL rules stricto sensu form the major source of ICL, and the latter branch of law’s substantive rules of war crimes are part of IHL lato sensu.106 61. In fact, ICL makes a valuable contribution towards an important role in the implementation of LOAC. The imposition of criminal responsibility by ICL to violators of IHL rules, and the prosecution of offenders against the same rules has long been an accepted means of enforcement.107 Regardless of unsuccessfulness of the 1921 Leipzig trials of WWI criminals,108 the Nuremberg and Tokyo trials in mid-1940s in the aftermath of the WWII, though criticized for their imperfections,109 can be considered as a cornerstone of international law as far as the war crimes and crimes against humanity are concerned.110

106 M. Sassòli, “Humanitarian Law and International Criminal Law”, in A. Cassesse (Ed.), The Oxford Companion to International Criminal Justice, OUP 2009, p. 112. 107 S. Darcy, Judges, Law and War: The Judicial Development of International Humanitarian Law, CUP 2014, p. 265; A. Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ EJIL 9 (1998), pp. 2–17. 108 J. Zenzmaier, “The Leipzig Trials (1921-1927): Between national disgrace and juridical farce”, in The law of war and war crimes at the time of World War One [Online]. 109 K. Sellars, ‘Imperfect Justice at Nuremberg and Tokyo’, 21 EJIL 4 (2011), pp. 1085–1102. 110 A. Kramer, “The First Wave of International War Crimes Trials: Istanbul and Leipzig”, European Review, 14 (CUP, 2006), pp. 441-455 [Online].

62. Indeed, WWII trials played a remarkable role in setting precedents rationalized in the essence of their establishment to prosecute high-level political officials and military leadership for war crimes and other war-related atrocities.111 Actually, the criminal trials seem to be more legitimate and they are not influenced by the political sphere the same way as sanctions which are not motivated by common interests, but self-interests of the particular affected States. In ‘belligerent reprisals’, the reprisal-takers are individuals whose actions are considered lawful under IHL when they are taken in response to prior violations of IHL and all pre-conditions are fulfilled. However, the resort to reprisals against the protected groups and objects as a way of law enforcement, even in the situation of the so-called legitimate reprisals, has been rejected during the international criminal proceedings. And they could not be used as justifications to exclude criminal liability as it is elaborated in the next paragraph.

B. Defences of Reprisals in Criminal Trials

63. Defence(s) of reprisals did not gain support in criminal trials ever-since the aftermath of WWII in as far as their prohibition against the protected groups and properties are concerned. This paragraph summarizes some defences of reprisals raised in criminal trials of WWII and the recent cases tried by ICTY.

1. WWII Criminals’ Trials

64. Seeing the volume of the present study, an overview of two cases can help to elucidate the rejection of defences of reprisals taken in violation of principles of humanity during WWII. These are the High Command case and Dostler case.

111 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal (London, 8 August 1945), art. 6. See also D. Schindler and J. Toman (eds.), n. 35, pp. 912-919.

a. The Germany High Command Trial

65. The ruling of the tribunal, in the High Command Trial, was controversial. The tribunal failed to consider the practice of reprisals against PoWs and civilians as unlawful. Instead, it turned around the pre-conditions for the possibility of taking hostages and the so-called ‘reprisal prisoners’ under certain very restrictive conditions and subject to certain rather extensive safeguards. And the tribunal ruled that after a judicial finding of strict compliance with all pre-conditions, and as a last desperate remedy, hostages or prisoners may even be sentenced to death.112 The accused were convicted because the killings were committed without full compliance with such pre-conditions and thus comparable to merely terror murders.113 66. More interestingly, the Tu quoque principle was rejected. The tribunal categorically stated that “....under general principles of law, an accused does not exculpate himself from a crime by showing that another has committed a similar crime, either before or after the commission of the crime by the accused”.114 And the tribunal considered the policy under which the war initiated to have a criminal intent and purpose and individuals at the policy-making level had the same criminal intent and purpose.115 Among the accused, 11 were convicted for crimes against peace, war crimes and crimes against humanity and sentenced to various years of imprisonment depending on one’s contribution to crimes’ commission.116

b. The Dostler case

67. The German general Anton Dostler was accused of having ordered the shooting of fifteen (15) USA prisoners of war (PoWs) in March 1944 in violation of the regulations attached to the Hague Convention No. IV of 1907, and of long-established laws and customs of war. The latter include the protection of PoWs in the 1929 Convention relative to the

112 United States Military Tribunal, Judgment of 30th December, 1947-28th October, 1948, Nuremberg, Case No. 72 (The German High Command Trial, US v. Wilhelm Von Leeb and Thirteen Others), in The United Nations War Crimes Commission, “Law Reports of Trials of War Criminals (LWT)” (Volume XII, print. COLE & CO. (Westminster) Ltd., London, 1949), pp. 1-127, at 84. 113 Ibid. 114 Ibid., p. 64. 115 Ibid., p. 67. 116 Ibid., p. 95.

Treatment of Prisoners of War, for instance.117 The defence counsel quoted a statement from the book of Oppenheim-Lauterpacht, which reads: “an act otherwise amounting to a war crime might have been executed in obedience to orders conceived as a measure of reprisals”,118 and that a Court was bound to take into consideration such a circumstance; but the plea of superior orders put forward by the defence council was rejected and Dostler was condemned to death penalty.119

2. Defence of reprisals before the ICTY

68. The ICTY did not hesitate to reject the defence of reprisals raised in order to exclude criminal responsibility in cases involving deaths of civilians.120 The case in which ICTY delved much into the doctrine of belligerent reprisals is that of Kupreškić case (et al.). Different accused persons were charged with various crimes such as murder, cruel treatment, persecution, inhumane acts falling in the categories of crimes against humanity and violations of the laws or customs of war. The trial chamber contentiously ruled that the rule prohibiting reprisals to target civilians applies in both IAC and NIAC situations. The trial chamber considered that the same prohibition had created a customary international rule and that “the customary humanitarian law might emerge under the pressure of the demands or the dictates of public conscience, even where state practice is scant or inconsistent”,121 an inference drawn from the Martens Clause. More importantly, the ICTY held that reprisals are subject to international rejection because they are ‘inherently a barbarous means of seeking compliance with international law’,122 and consequently came to a conclusion that:

117 Convention relative to the Treatment of Prisoners of War (Geneva, 27 July 1929), art. 2(3). 118 H. Lauterpacht (ed.), International Law: A Treatise, by L. F. L. Oppenheim International Law, Vol. 2: Disputes, War and Neutrality (6th Ed. Revised, Longmans, Green and C°, 1944), p. 453 cited in Dostler Case, Below n. 120, p. 28. 119 The Dostler case, Trial of Gen. Anton Dostler (United States Military Commission, Rome, 8th -12th October, 1945), in United Nations War Crimes Commission, “Law Reports of Trials of War Criminals” (Case No.2, vol. I, print. COLE & CO. (Westminster) Ltd., London, 1947), p. 29. 120 ICTY, 12-06-2007, Case No. IT-95-11-T2, (Prosecutor v M. Martic Case), §462, 464, 519; ICTY, 08-08-2008, Case No. IT-95-11-A (Prosecutor v Milan Martić Case), §355. Milan Martić, the former president of RSK, was convicted for several war crimes charges and crimes against humanity and he was sentenced to a single sentence of 35 years of imprisonment by the TC, a sentence maintained by the Appeal Chamber in 2008. 121 Kupreškić et al. Case, §527-535. 122 Ibid., §528.

“…while reprisals could have had a modicum of justification in the past, when they constituted practically the only effective means of compelling the enemy to abandon unlawful acts of warfare and to comply in future with international law, at present they can no longer be justified in this manner.”123

69. Such a conclusion was motivated by the fact that: “belligerent reprisals against civilians 124 and the fundamental rights of human beings are absolutely inconsistent legal concepts.” And it is worth arguing that the same ruling is seemingly drawn from the fact that random killing of civilians in the absence of a crime trial amounts to a manifest infringement of fundamental principles of human rights. Nonetheless, in later Martinic Case, the ICTY trial chamber held that reprisal may be lawful as long as they are carried out in accordance with the set out conditions,125 paying due respect to ‘the principle of the protection of the civilian population in armed conflict and the general prohibition of targeting civilians’,126 an approach adopted by the ICRC.127

C. The Rome Statute and reprisals

70. The Rome Statute for the International Criminal Court has refrained from commenting on the legality of reprisals. Under the Rome Statute, reprisals are not explicitly mentioned as part of the grounds for excluding criminal responsibility under its article 31(1). However, there remains the possibility for the Court to apply defences outside those provided for in its Statute:

“At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in Article 21. The Procedures relating to the consideration of such ground shall be provided for in the Rules of Procedure and Evidence.”128

71. Indeed, paragraph 3 of article 31 RS is about uncodified defences as long as they are found in the applicable law laid down in article 21 of the Rome Statute. The latter provision lays down a hierarchy of the applicable law. Apart from its Statute,129 the ICC applies the applicable

123 Ibid., §530. 124 Ibid., §529. 125 M. Martić Case, §465. 126 Ibid., §467. 127 IHL Customary Rule No. 145. 128 Rome Statute of the International Criminal Court (last amended 2010), 17-07-1998, 2187 UNTS 3 [Hereinafter Rome Statute], art. 31 (3). 129 Ibid., art. 21 (1)(a).

28 treaties and principles and rules of international law, including particularly the established IHL principles of humanity. Thus, the possibility for reprisals could be only tenable particularly those against military forces or objects or involving the use of prohibited weapons in accordance with the established principles of humanity under IHL,130 and the court’s duty to abide by internationally recognized human rights.131 72. While the violation of IHL amounts to violating the human rights law, ensuring respect for IHL does not necessarily ensure respect for (all) human rights.132 During a belligerent reprisal, there is a great likelihood of collateral damage which amounts to a war crime punished under the Rome Statute.133 Therefore, if reprisals were restricted to only military objectives, ICC is not likely to allow defences of reprisals in violations of the aforesaid human rights embodied in IHL. Although reprisals may be allowed under conditions discussed in the previous chapter, it does not imply that the damage caused to non-combatants is excusable. 73. It can be argued that the defences of reprisals, as means of enforcing the IHL, are not likely to gain support under ICL. The latter law recognizes its role to have IHL rules enforced by proscribing international crimes and imposing on perpetrators direct individual criminal responsibility for international crimes. And Professor H.G. van der Wilt contended that: “It is vital that courts keep paying attention to personal guilt and individual suffering to compensate for war’s second nature of collectivism which tends to erase the shades of those very notions.”134 74. In the same line of reasoning, it is submitted that the international courts and tribunals and national courts play a crucial role in implementing the ICL principles. And by so doing, the impunity and negation of criminal justice embodied in the practice of reprisals is likely to be rejected in criminal trials which are considered as the effective and legitimate means of enforcing the humanitarian law as compared to belligerent reprisals. Now that we have international criminal court, and sometimes ad hoc tribunals for particular trials, we no longer need belligerent reprisals. They compensate for the impunity that reprisals sought to redress.

130 Ibid., art. 21 (1)(b). 131 Ibid., art. 21 (3). 132 P. A. Fernández Sánchez, International Legal Dimension of Terrorism, Brill 2009, Leiden, p. 297. 133 Rome Statute, art. 8(2)(b)(iv). 134 H.G. Van der Wilt, ‘Can Romantics and Liberals be Reconciled? Some Further Reflections on Defending Humanity’ JICJ 7 (2009) 529-539, at 538.

2.4. Effects of Reprisals on LOAC

75. The raison d’être of the LOAC is to limit the use of violence in armed conflicts by: (a) sparing those who do not or no longer directly participate in hostilities; (b) limiting violence to the amount necessary to achieve the aims of the conflict which can be – independently of the causes fought for – only to weaken the military potential of the enemy.”135 In other words IHL has rules regulating conduct of hostilities and rules on the protection of war victims. The limitations of reprisals to only military objective(s) sought to ensure the protection of the war victims against the barbarity of reprisals. However, the latter continued to affect the innocent individuals who had no connection with the prior wrong (see Chap.3). 76. Therefore, in spite of the requirements to resort to reprisals, keeping the doctrine as a mechanism of enforcing IHL corresponds to turning a blind eye to the intended protection of the same law whose foundation is humanity. If IHL cannot prevent war, its ultimate role is to protect the victims of war instead of indirectly failing to protect them from the engulfing nature of reprisals.

2.5. Conclusion

77. To sum up, it is important to recall that, regardless of the wider scope of protection of civilians and objects in occupied zones and the unconditional condemnation of reprisals by some States during the four 1970s Diplomatic Conferences on Humanitarian Law in Geneva, some other States, esp. the powerful ones, did not support it.136 And the formulation of customary rule, as regards the prohibition of reprisals against civilians, is contested by some western states, like UK which criticized the ICTY’s reasoning, in Kupreškić case (et al.), that the court’s reasoning “flies in the face of most of the state practice that exists.”137 Those who want to keep reprisals

135 R. Kolb and R. Hyde (eds.), An Introduction to the International Law of Armed Conflicts, Hart Publishing 2008, p. 16. 136 French delegate opined that it would limit the right of legitimate ‘self-defence. It remains to know if the French delegate was of the view that self-defence implies less protection of civilians and their objects despite of exceptions set forth in the law. See ICRC, 1 Official Record of The Diplomatic Conference on The Reaffirmation And Development of International Humanitarian Law Applicable (1978), Geneva (1974-1977) pp. 3-4. 137 UK, Manual of the Law of Armed Conflict (OUP, 2004), p. 412.

30 base their argument that the ban of reprisals could encourage violations138 or even force the use of nuclear assets…139 However, the first argument does not make it clear whether taking reprisals does, on the contrary, not lead to escalation of hostilities and their deterrence effect is presumed or lies in the mere hope, for instance. 78. Moreover, the doctrine of reprisal, consisting of a deliberate violation of the rule of the laws of war with impunity, has not get a warm place under ICL. For ICL the crimes are committed by individuals, and the latter should not go unpunished after committing proscribed acts amounting to crimes. In WWII trials, the tribunal contended that: “… a war crime does not cease to be such for the reason that it is committed under the guise of reprisals.”140 Secondly, the international criminal law would lose its meaning if it turns a blind eye to the commissions of war crimes and crimes against humanity. The rationale of ICL’s rejection of the doctrine of reprisals lies in its role to ensure the enforcement of IHL rules. The criminal proceedings are considered as legitimate means of enforcing the law of armed conflict than the traditional means of enforcing the IHL, the belligerent reprisals.141 79. The crimes’ trials in the 1940s and the last decade of 20th century reiterated the deterrent effect of international crimes, reconciliation and combating impunity.142 In the same vein, it would be important to recall the obiter dictum of the IMT at Nuremberg:

“Crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced”.143

138 S. Darcy, ‘What Future For the Belligerent Reprisals’, n. 55, p. 121, citing Major M.C.C. Bristol III, ‘The Laws of War and belligerent Reprisals against Enemy Civilian Populations’, 21 Air Force JAG Law Review (1979), at 425. 139 Ibid, citing G.B. Roberts, ‘The New Rules for Waging War: The Case Against Ratification of Additional Protocol I’ 26 Virginia JIL (1985), at 143. 140 The Military Tribunal II, The Einsatzgruppen Case, Case No.9 (USA v Otto Ohlendorf et al.), The United Nations War Crimes Commission, ‘Trials of War Criminals Before The Nuernberg Military Trials’, Vol. IV, Nuernberg October 1946 – April 1949), p. 374 [Online]. 141 M. Sassòli, n. 107, p. 222. 142 ICTY, Judgment of 10-12-1998, Case No. IT-95-17/1-T (The Prosecutor v. A. Furundžija), §288. 143 UN War Trials Commission, Judgment of the International Military Tribunal, in The Trial of German Major War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg (Germany, Part XXII, London, 1950), p. 447.

Chapter III: BELLIGERENT REPRISALS AS MEANS OF ENFORCEMENT OF IHL IN THE WORLD OF TODAY

3.1. General

80. Under international law, the State injured by the acts of another State violating the laws of war is allowed to derogate from the humanitarian law so as to compel the original violator (State) of LOAC to comply with those same laws; thus taking reprisal action against the wrong- doing State.144 Reprisals fall under the heading of sanctions of international law, and they are specifically individual sanctions involving the coercion,145 and their impetus is ‘law- enforcement’.146 81. The present chapter seeks to challenge the practice of reprisals as means of enforcing the humanitarian law as well as their legitimacy in the world of today. In order to make a sound objection to reprisals, the section 1 generally discusses the alternative enforcement mechanisms. The section 2 makes a particular analysis on the ‘belligerent reprisals’ by clarifying their illegitimacy as means of law enforcement; thus challenging the suitability of reprisals to enforce the humanitarian law at the same time meeting the social needs of today.

3.2. Means of Law Enforcement

82. The recognition and validity of any legal system is dependent on the general acceptance of those whom it is expected to govern.147 Enforcement of the law makes it a true law. IHL enforcement refers not only to action(s) taken to ensure observance of the humanitarian rules,

144 H. Kelsen, General Theory of Law and State (The Lawbook Exchange Ltd, USA, 1945), trans. By A. Wedberg, The Lawbook Exchange Ltd, USA, 2007, N.J., p. 355 [Online]. 145 F. Kalshoven, n. 2, p. 23. 146 H. Kelsen, ‘Collective Security and Collective Self-defence under the Charter of the United Nations’(1948), 42 American Journal of International Law 873. 147 E. C. Stowell, ‘Military Reprisals and the Sanctions of the Laws of War’, 36 The American Journal of International Law 4 (ASIL, October 1942), p. 643.

32 like increasing law awareness,148 but also action(s) that may be taken in response to alleged or actual violations. Apart from the “belligerent reprisal”, there remain some other measures that may be used to enforce the LOAC. These include, among others, criminal jurisdictions in both national and international courts and tribunals, Fact-Finding mechanism, good offices and mediation by the Protecting Power, as well as military action taken under the authority of UNSC that may be used in the enforcement of the LOAC.

A. Reprisals and the principle of subsidiarity

83. In fact, the ‘right of reprisal’ is subjected, but not limited to the principle of subsidiarity. The latter principle implies that reprisal action is not an automatic reaction following the injury; but reprisals may only be resorted to as a measure of last resort, when there are no other available means of enforcing or sanctions of the laws of war.149 Although the first codification of fundamental concepts in the Lieber Code (1863), now enshrined in modern IHL, did not refer to the term ‘reprisal’, it described the classic concept of retaliation as “the sternest feature of war”, to be used when no other ordinary methods are left to the affected State.150 84. It is submitted that a legal order where every State would take the law into his own hands to solve the problems between the subjects of international legal order was accepted during the periods when the international community of States was short of mechanism to effectively enforce the laws of war. Also, apart from the legitimacy concern, the subsidiarity principle implies that reprisals are not the effective means to enforce IHL, but a woeful response.

148 These include increasing awareness of the humanitarian law and setting up an effective system that can take legal considerations into account in military decision-making process (see GC I, art. 47; GC II, art. 48; GC III, art. 127; GC IV, art. 144; AP I, art. 83). 149 US Military Tribunal, Judgment of 19-02-1948, Hostages Trial Case (USA v. Wilhelm List And Others), §188, in The United Nations War Crimes Commission, Trials of War Criminals before the Nuremberg Military Tribunals, Vol. VIII, Case No. 47 (His Majesty's Stationery Office, London, 1949), p. 64. The Einsatzgruppen Case, p. 374; S. E. Nahlik, n. 40, p. 38. 150 General Orders, No. 100: Instructions for the Government of Armies of the United States in the Field (Lieber Code) (24 April 1863), art. 27. The fundamental concepts of modern international humanitarian law (IHL) have remained generally unchanged since the American Civil War and are still based on the balance between military necessity and human dignity found in the Lieber Code. E.g., the protection of civilians, PoWs remains vital.

85. Nowadays, the above argument is quite helpful to reject the reprisals as sanctions of law because they are no longer the only available mechanisms,151 but an obvious self-damage of the humanitarian law leading to losing its protections to the war victims. Secondly, reprisals are seen as the self-right enforcement in the form of violence to protect one’s rights without the involvement of a judicial institution to enforce the law;152 thus a negation of the international criminal justice.153

B. Criminal proceedings

86. The criminal trials for suspects of most serious international crimes stemming from the violations of IHL, may be carried out within domestic courts or established international institutions154 as well as the international legal adjudication of disputes between states concerning the meaning and implementation of the law, for instance, by the International Court of Justice, thus demanding for compensation in respect of violation.155 It is worth underlining the argument of M. Sassòli that the “prosecutions of grave breaches of IHL through the national and international criminal justice elucidate that IHL is a law and those very prosecutions have an important preventive effect.”156 Sassòli does not support the idea of collective guilt in sanctions because this will be conducive of further atrocities. He considers criminal trials an appropriate and advantageous alternative.157 87. The criminal sanctions can take the form of serious punishment, such as capital punishment, imprisonment, or (severe) fines. Indeed, the efficacy and legitimacy of criminal trials over reprisals was ruled in the Hostage Case during the WWII criminals trials, and I quote the ruling:

151 Kupreskić et al. Case, at § 532. 152 Justice and Judgment among the Tiv, (London: OUP, 1956), at 149, cited in N. Onuf, International Legal Theory: Essays and Engagements, 1966-2006, Routledge 2009, N.Y., p. 108. 153 C. Stahn, ‘Syria and the Semantics of Intervention, Aggression and Punishment’, JICJ 11 (2013), p. 970. 154 E.g., the establishment of ICTY, ICTR, and the ICC with jurisdiction over the crime of genocide, Crimes Against Humanity, War crimes, and the crime of Aggression. 155 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907), art. 3. 156 M. Sassòli, n. 107, p. 113. 157 Ibid.

“It is a fundamental rule that the lives of persons may not be arbitrarily taken. A fair trial before a judicial body affords the surest protection against arbitrary, vindictive, or whimsical application of the right to shoot human beings in reprisal. It is a rule of international law, based on these fundamental concepts of justice and the rights of individuals, that the lives of persons may not be taken in reprisal in the absence of a judicial finding that the necessary conditions exist and the essential steps have been taken to give validity to such action.”158

88. Furthermore, apart from retribution, deterrence is the purpose to be considered by the criminal judge when imposing sentences.159 The deterrence is made not only to the accused, but also to the global community, discouraging its members from committing crimes in similar circumstances against the LOAC.160 In fact, the deterrence signals a message that the impunity of violations of IHL cannot be tolerated. On the other hand, the respect for the international criminal justice is attained by disfavoring the breaches and strengthening the strict obedience to the humanitarian law.

C. Other Means of enforcement

89. Other means like the establishment the Fact-Finding Commission(s), good offices and mediation by the Protecting Power, as well as the UNSC coercive actions play a vital role in the enforcement of the humanitarian law. Fact-Finding Commissions to investigate alleged violations of IHL are of central importance.161 The findings of the Commissions may be reliable because of its composition and be used during the subsequent crimes trials. Like Fact-Finding mechanism, the good offices and mediations by a neutral Protecting Power may become fruitful in enforcing the humanitarian law. 90. However, the required consent of the parties162 is seemingly a limitation that may hinder their functioning or even render the mission of the mediator less fruitful. At last, the international framework or collective action taken under the authority of international bodies, including the

158 Hostage Trial Case, n. 148. 159 Kupreškić et al. Case, §848. 160 Ibid.; Referring to A. Furundžija Case, §288. 161 These are commissions established in accordance with 1977 AP I, art 90, known as the International Humanitarian Fact-Finding Commission whose primary purpose is to investigate allegations of grave breaches and other serious violations of IHL. The commissions established by individual states, the UNSC or other bodies, or by the International Fact-Finding Commission, which proposes specific legal action to deal with violations or to prevent their recurrence after their formal inquiries into alleged violations. 162 AP I (1977) to 1949 GCs, art. 90 (2)(d).

UN Security Council, against offending state may be used and seems to be more legitimate than leaving the right of reprisal to an injured State against the wrongdoing State which is likely to be abused. However, the failure to adopt enforcement measures due to SC working system is a considerable obstacle to rely on collective coercive action or even through other sanctions of economic nature, arms embargoes, etc.

3.3. Inappositeness of Belligerent Reprisals

91. Regardless the current narrow scope of reprisals under LOAC, retaining such a traditional practice of enforcing the laws of war is open to criticism. This section seeks to sustain my argument that belligerent reprisals should be absolutely banished. The same argument is not only due to the subsidiarity requirement of reprisals, but also to their uncertain efficacy and the growing unpopularity which is the manifest illegitimacy of reprisals as means of enforcing the LOAC.

A. Uncertain efficacy of reprisals

92. The enforcement of law entails a deterrence of further violations of the same law. All in all, reprisals are still embodied in LOAC as coercive responses to prior violations of the latter law, thus taking the form of sanctions of law. However, if the intended effect of deterrence is not achieved, then it would be senseless to talk of law-enforcement. The present paragraph seeks to examine the (in)efficacy of reprisals in two folds: (i) reprisals lead to further violations of humanitarian law in counter-reprisals; and (ii) the injustice of reprisals.

1. Reprisals leading to reprisals-series

93. The coercive act performed by the State constitutes the ‘sanction’ of law.163 In the original (legal) sense of the word, a “sanction” is a penalty or punishment provided as a means of enforcing obedience to a law.164 The sanctions create the possibility for actual enforcement of the

163 H. Kelsen, Principles of International Law, The Lawbook Exchange Ltd, 1952, p. 13. 164 Black’s Law Dictionary (Free Online Legal Dictionary, 2nd Ed.) [Online].

36 law of armed conflict and thereby give it the true substance of law.165 And in jurisprudence, a law is said to have a sanction when there is a state which will intervene if it is disobeyed or disregarded.166 Likewise, ‘enforcement’ refers to an action of making sure a law (or court decision) is properly obeyed.167 All in all, the deterrence which is the effect of a coercive measure, sought by any mechanism of enforcing the law, and whose aim is to make sure the wrongdoing State decides not to violate IHL due to fear of possible adverse consequences thereof, is the desired effect of reprisals. 94. From the above definitions, it is important to assess the deterrent effect of reprisals, a function stemming from the lack of alternatives to induce the wrong-doing State to stop its violations of the LOAC. First of all, a reprisal is inherently unlawful, or in other words it is a deliberate violation of LOAC, but the violation used to be excused as a matter of what Neff called ‘regrettable necessity’: remedial function as a law-enforcement measure under the international law.168 As a matter of fact, the deterrent effect of a conduct that constitutes a grave breach of humanitarian law is subverted by the likely abuses in vengeance. 95. Secondly, the reprisal-taker intends to restore balance, but, as a matter of fact, the ruthlessness of reprisal more often than not invites further counter-reprisals, hence leading to escalation of conflicts. H. Kelsen interpreted the technique of self-help in the same manner as a primitive legal order characterized by vendettas.169 F. Kalshoven contended on the danger of reprisal action which gives rise to endless cycle of chaos and crimes through “reprisals-series”,170 too. ‘Reprisals-series’ were condemned by the tribunal in WWII crimes trial.171 But the same condemnation lacks a legal sense and it is just important to call upon the belligerents to obey the LOAC.

165 Mallison, ‘The Laws of War and the Judicial Control of Weapons of Mass Destruction in General and Limited Wars’, 36 Geo.Wash.L.Rev. 14 (1967), cited in T.J. Murphy, ‘Sanctions and Enforcement of the Humanitarian Law of the Four Geneva Conventions and Geneva Protocol 1 of 1977’, 103 MIL.L.REV. 3 (Washington D.C., 1984), pp. 3-77, at 6. 166 Ibid. 167 Black’s Law Dictionary, n. 164. 168 S. C. Neff, n. 39, p. 63. 169 H. Kelsen, n. 145, p. 339. 170 R. A. Falk, The Vietnam War and International Law, Volume 3: The Widening Context, Princeton University Press 2015, N.J., p. 251; N. Onuf, n. 153, p. 103. 171 The Einsatzgruppen Case, pp. 493-4.

2. Affecting innocent people

96. During the hostilities, the ultimate function of law is to ensure minimum protection for war victims. The injustice of reprisals lies in effects they have on people other than those who committed the original infraction. In the 1974-1977 Geneva Diplomatic Conferences, the negative effect of reprisals on innocent civilians and their properties was reiterated.172 Kalshoven contended that a conspicuous feature of both “belligerent reprisals” and “peacetime reprisals” is that they directly impact individuals who are innocent of the wrong that provoked the reprisal.173 97. Besides, this aspect of collectivization of guilt is the very form of retaliation which is inconsistent with the view of the humanitarian law prohibiting the collective punishment.174 This was the traditional character of the laws of war which was inter-State law driven by “collective responsibility, with the attendant collective sanctions of classical international law: belligerent reprisals durante bello and war reparations post bellum.175 The collective penalties were condemned in the Einsatzgruppen Case, and I quote the ruling of the tribunal:

“While generally the persons who become victims of the reprisals are admittedly innocent of the acts against which the reprisal is to retaliate, there must at least be such close connection between these persons and these acts as to constitute a joint responsibility.”176

98. Lastly, the proportionality in severity to the original violation(s) is an aspect of reprisal action.177 Nevertheless, though the classic doctrine of retaliation in which the injured State would commit the same wrong as the original violator’s, or in other words reprisal in kind is a prohibited aspect of reprisal, it is important to agree with Neff who, as regards the proportionality requirement in reprisals, contended that:

“In the case of ‘belligerent reprisals’- reprisals intended to deal specifically with violations of the laws of war – this requirement tends to take the extreme form of retaliation. This is a situation in which the reprisal taker commits precisely the same violation of the laws of war as the original wrongdoer did”.178

172 S. E. Nahlik, n. 40. 173 F. Kalshoven, p. 42. 174 IHL Customary Rule 103; GC III, art. 87; GC IV, art. 33 (1). 175 G. Abi-Saab, ‘International Criminal Tribunals and the Development of International Humanitarian Law’, in E. Yakpo & T. Boumedra (eds.), Liber Amicorum – Judge Mohammed Bedjaoui (1999) 649, 650, cited in T. Meron, n. 23, pp. 1-2. 176 The Einsatzgruppen Case, p. 493. 177 S. C. Neff, Above n. 169. 178 Ibid.

B. Illegitimacy and the growing unpopularity of reprisals

99. The illegitimacy of reprisals was proven in crimes trials of the world war criminals.179 Some scholars affirm that the legitimacy of reprisals under IHL is not fully established and it is easy to dismiss the justifying effect of a reprisal simply by virtue of its being the only means at the disposal of a party suffering a humanitarian offence.180 The growing unpopularity of reprisals was geared by the barbarity of reprisals in WWII, and the will to constrain reprisals arose in the second half of 20th century. 100. As a result, armed reprisals were prohibited,181 and the scope of the belligerent reprisals was gradually narrowed in treaty-law to ensure the protected persons and objects.182 The outstanding reason of rejection is that in many cases reprisals conflict with the guaranteed protection of individuals and their properties.183 Furthermore, apart many scholarly criticizing the reprisals, the condemnations of reprisals in UNGA is a reflection of what States look forward to getting rid of.

3.4. Conclusion

101. Though, the individual action of one State against another State may serve an interest of the international community, it may not always be true since the self-help mechanism entails in the first place the individual interests of reprisal-taker. Additionally, the international legal order would equally be safeguarding the interests of its subjects. A State taking a reprisal does not render itself liable to a sanction if its actions afflict the population of a wrong-doing State, and it is similar to a social order of which Kelsen said that “a petty thievery is punished while armed robbery goes free.”184

179 E.g. Einsatzgruppen Case, p. 387. 180 T. Kamenov, ‘The Origin of State and Entity Responsibility for Violations of International Humanitarian Law’, in F. Kalshoven et al. (eds.), Implementation of International Humanitarian Law: Research Papers by Participants in the 1986 Session of the Centre for Studies and Research in International Law and International Relations of the Hague Academy of International Law, Martinus Nijhoff Publishers, Dordrecht, 1989 (Vol. 1), p. 214. 181 D. Bowett (1972), Above n. 73. 182 GC (IV), Art. 33(3). See also above n. 4, 94-99. 183 T. Kamenov, above n. 181. 184 H. Kelsen, n. 145, p. 340.

102. On the other hand, reprisals seem to confirm the prior wrong and their efficacy is undermined by the likelihood of escalations of hostilities. Given the subsidiarity requirement, the doubtful efficacy of reprisals may be achieved by other means. At least a number of mechanisms that are more legitimate are available, and criminal trials are, for instance, effective, legitimate and morally acceptable in contrast to reprisals which were criticized in various court decisions, scholarly writings and international condemnations of the practice by United Nations (UN).

GENERAL CONCLUSION

103. By way of conclusion, the thesis argued that reprisals are traditional means of enforcing the laws of war. Some scholars like Colbert and Brière revealed the place of reprisals in all primitive legal orders.185 While concluding his treatise, “Belligerent Reprisals”, professor Kalshoven qualified the role of belligerent reprisals to be lacking moral qualities, thus not a merely as an anachronism, but as a symptom of an anachronistic world-order.186 Indeed, every period has its own values. While the traditional international relations were characterized by a decentralized coercive order, the modern international community of States sought to uphold the international law and to restore the peaceful coexistence amongst States. 104. The advantages and disadvantages summarized throughout the thesis leads to the conclusion that ‘belligerent reprisals’ are indisputably ineffective and illegitimate sanctions of the modern LOAC. The same conclusion is justified in respect of the limitations of the doctrine of reprisal in the 20th century. The reprisal action amounts to trivialization of the values of humanity and does not originate from the clear responsibility of individuals who breached the humanitarian law; thus it does not uphold the humanitarian law. 105. Therefore, the justifiability of reprisals is no longer tenable since some other means of enforcement of LOAC have emerged, like criminal jurisdictions considered as effective, legitimate and morally acceptable. The revival of criminal prosecutions in the 1990s, after the Cold War, is important to acknowledge the merits of the international criminal prosecution and punishment by an international court. The advantages of international criminal jurisdictions

185 Brière, (Yves de la), "Evolution de la doctrine et de la pratique en matière de représailles", Recueil de Cours de L’Académie de Droit International 22 (1928), p. 241; cited in F. Kalshoven, at 1 et seq. 186 F. Kalshoven, n. 2, p. 378.

40 include, but not limited to, holding accountable the violators of IHL, but more importantly playing a reconciliatory role as opposed to possible revenge in reprisals and collective guilt of State responsibility.187 It stands to reason that the international framework works better than leaving the right to individual State even in situations of furthering the breaches of humanitarian law in the hand of one State against another State. 106. Furthermore, the reprisal taker seems to confirm the wrong-doing State in his violation(s) and the intended end-state is always uncertain, but most-likely leads to further breaches of LOAC as contended throughout the thesis. Kalshoven qualified ‘reprisals’ as acts of “execution- cum-self-help” or rather, doing justice to the predominantly unilateral character, as “self-help- cum-execution”.188 And it looks like a negation of the international criminal justice, instead. If truth be told, those who could argue in favor of reprisals are not likely to confirm the same possibility of “enforcing” the humanitarian law by way of reprisals to all States. The effectiveness of reprisals depends on the capability of the reprisal-taker and the rogue State. It holds water to argue that in a war between two distant States, or even bordering ones, when one State has a heavier combat power than the other; the latter is likely to fail to stop the illegalities of the former. 107. Lastly, the compliance with the law by one party to a conflict seems to be a good inducement to the other party to comply with the same law. However, if one belligerent commits the grave violations of humanitarian law, the same wrong gives the right to a legal action. On the contrary, the reprisal seems to be a revival of traditional punitive measures. The individual enforcement of law by one State against another is geared by anger and open to abuse; and self- interests come in the first place rather than the community’s. Therefore, it is submitted that reprisals would have no place in the modern IHL whose overarching goal is the reduction of bitterness amongst States rather than enmity due to cruelty of reprisals.

187 A. Cassese, n. 108, pp. 9-10. 188 Kalshoven, n. 2, p. 24.

BIBLIOGRAPHY

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