Journal of Conflict and Security Law Advance Access originally published online on June 18, 2008
Journal of Conflict and Security Law 2008 13(1):93-122; doi:10.1093/jcsl/krn008
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The Continuing Role for Belligerent Reprisals
* J.D., Brooklyn Law School (Class of 2007). The author would like to thank his friends and family for all their support and understanding over the years. Special thanks are in order for Judge Evan J. Wallach, Aleah Borghard and Jessica Haber.
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Abstract |
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‘The rumours of my demise are greatly exaggerated.’ – Mark Twain
The enforcement of the law of war has always been a difficult proposition. It has become even more difficult in recent conflicts given the propensity of combatants to employ unlawful violence to further their cause. Such horrific conduct begs the question, how does the law of war restrain violators? There are many potential methods, among them war crimes tribunals and international mediation, but the subject of this article is the final enforcement mechanism: belligerent reprisals. It is a doctrine that responds to unlawful conduct by inflicting the same violation upon the violators in order to force them to cease. The doctrine of reprisals has fallen into disuse as numerous commentators suggest that it is no longer effective and soon to slip into complete illegality. However, reprisals utilizing a prohibited weapon remain lawful. And, for a number of states, reprisals against captured enemy combatants remain lawful. Violating the law of war, even in a manner it allows, is a repugnant act, yet an even more repugnant act is to allow an adversary to violate that same law with impunity.