Reprisal Under International Law: A Defense to Criminal Conduct

摘要

The doctrine of reprisal in the laws of war authorizes execution of an otherwise illegal act under the law of armed conflict if it meets certain conditions, including a prior illegal act by the first party and an effort to redress that wrong short of conflict. The responding illegal act becomes authorized under the law of war if it is proportionate to the original wrong and is done to compel the offending state to comply with the laws of war. International conventions have limited the targets subject to reprisal, such as prohibiting them against prisoners of war, but the doctrine survives. In order to afford soldiers alleged to have committed war crimes during operations in Afghanistan and Iraq particularly, this paper proposes a model instruction for courts-martial that makes the doctrine of reprisal available as an affirmative defense to criminal charges. The model instruction encompasses the traditional components of reprisal under the law of war, but aims to offer a remedy to soldiers who must distinguish between combatants and non-combatants on these battlefields and whose actions may subsequently be characterized as criminal. Reprisal is a viable law of war doctrine for today's military forces.