Concept and Definition of Reprisal
The term reprisal refers, in the broadest sense, to an act taken in response to a preceding violation, act of aggression, or legal breach, with measures of one’s own intended as a justified countermeasure. In legal contexts, especially in international law and national law, the term has a narrower, more specific meaning, regulated by national and international provisions.
A reprisal is often carried out with the aim of retaliating for a previously suffered harm or attack, to prevent further misconduct or to deter such. Legally, the permissibility, necessity, and proportionality of a reprisal are strictly limited and subject to strict conditions.
Reprisal under International Law
Fundamentals and historical development
In international law, a reprisal is traditionally referred to as a reprisal or retorsion Here these refer to measures taken by a state in response to unlawful conduct by another state under international law. Such actions were already observed in international practice in the 19th century and have since been subject to international legal consideration.
The significance of reprisals has changed substantially with the development of international codifications, especially after the entry into force of the Charter of the United Nations in 1945. Unrestricted rights of reprisal have been significantly curtailed in favor of an international order of peace.
Retorsion and Reprisals
International law distinguishes between two types of reprisals:
- retorsion: These are unfriendly, but lawful, measures taken by a state, such as the severance of diplomatic relations or economic sanctions.
- reprisal: This refers to a measure that is itself unlawful under international law, but which may be considered permissible under certain circumstances as a response to a preceding breach of international law by another state.
Conditions for the permissibility of reprisals
Not every act of reprisal is permitted under international law. In particular, the following conditions apply to reprisals:
- Prior violation of international law by the affected state
- Unsuccessful request to cease and remedy the original violation of international law
- Proportionality of the reprisal; it must not be disproportionate to the preceding legal violation
- Non-application in armed conflict: Humanitarian international law (Hague Regulations, Geneva Conventions) strictly limits the permissibility of reprisals in wartime.
Reprisal and Self-Defense
The difference between a reprisal and self-defense is of central importance in international law. While self-defense (Art. 51 UN Charter) repels an immediate attack, a reprisal is a response to an attack that has already been completed. A pure reprisal is, according to Article 2(4) and Article 51 of the UN Charter, generally impermissible.
Prohibition of Armed Reprisals
With the introduction of the UN Charter, lawful conduct of war, particularly as retaliation, was largely prohibited. An armed reprisal – that is, the use of military force in response to prior military breaches of law – is fundamentally forbidden. Exceptions exist solely within the framework of self-defense or based on a Security Council mandate.
Reprisal in National Law
Criminal Law
In national criminal law, the term reprisal has no independent regulation, yet the issue arises in connection with justifications such as self-defense and aid in emergencies. The Penal Code does not provide any independent authority for ‘retaliation’ against an experienced injustice; instead, the objective of the state’s monopoly on the use of force is to prevent vigilante justice.
- Self-defense (§ 32 StGB): Self-defense is only permissible as a defense against an imminent, unlawful attack and does not cover subsequent acts of reprisal.
- Necessity (§ 34 StGB): Justifiable necessity is also only permissible under strict requirements and does not allow for subsequent punitive actions.
A reprisal outside the bounds of the law constitutes unlawful vigilante justice and is prohibited under both criminal and civil law.
Civil Law
There is no room for acts of reprisal in civil law. Aggrieved parties may enforce their rights only through orderly procedures before courts or authorities. Unilateral acts of reprisal, such as property damage or bodily harm as ‘revenge,’ are impermissible and regularly result in claims for damages and further legal consequences.
Current legal issues and disputes
Cyber Reprisal
With the advent of cyber-physical attacks, the assessment of ‘cyber reprisals’ under international and national law is increasingly discussed. Here, the primary question is whether it is permitted to respond to cyberattacks with one’s own offensive actions, and under what conditions such responses might be deemed lawful. The prevailing opinion is that the general principles of the prohibition of force and the aforementioned restrictions apply analogously.
Reprisal in Criminal Procedure
Unilateral acts of reprisal are also excluded within the framework of criminal proceedings. Rather, the state’s monopoly on the use of force applies. The unilateral punishment of violations or attacks is considered impermissible regardless of the motive.
Summary and practical significance
Der reprisal does not constitute a countermeasure that is freely available or can be used arbitrarily in either international or national law. While international law only allows certain reprisals under very restrictive conditions and generally prohibits military reprisals, national law does not recognize any justification that could legitimize unilateral ‘acts of retaliation.’ Rather, the enforcement of rights is reserved for state authorities, with violations regularly resulting in criminal and civil penalties.
Literature and Further Reading
- International Committee of the Red Cross (ICRC): Handbook of Humanitarian International Law
- Bruno Simma (ed.): Charter of the United Nations, Commentary
- Stefan Talmon: Reprisals in International Law
- Federal Agency for Civic Education: Prohibition of Force and Self-Defense in International Law
Note: This presentation is intended solely for general information regarding the legal background of the term ‘reprisal.’ It does not constitute legal advice.
Frequently Asked Questions
How does a reprisal differ from self-defense under international law?
In international law, self-defense and reprisal (reprisal action) must be strictly distinguished. Self-defense is expressly recognized as a right under Article 51 of the Charter of the United Nations when a state is the victim of an armed attack. Crucial here is that the defensive action must be necessary, proportionate, and immediate, and must aim to avert an acute threat. A reprisal, on the other hand, does not serve to avert a current attack, but reacts to an act that has already occurred, in order to retaliate, punish, or deter. International law prohibits such reprisals, at least when they take the form of violence against the territorial integrity or political independence of another state (see prohibition of force in Art. 2 para. 4 UN Charter). Thus, unlike self-defense, a reprisal is, as a rule, impermissible.
Under what conditions can a reprisal be legalized under international law?
International law essentially does not permit armed reprisals. However, the UN Security Council may, under Chapter VII of the UN Charter, authorize military enforcement measures in response to a breach of the peace. Such measures are not considered reprisals in the true sense, but serve the protection of peace and international security. Non-violent measures such as diplomatic or economic sanctions, as forms of so-called retorsion, are also permissible as reactions to unlawful conduct. Armed reprisals, on the other hand, are only permitted in extremely rare and exceptional cases, such as when explicitly authorized by the Security Council, or if they fall under the exceptions of self-defense according to Art. 51 UN Charter—which, however, is largely rejected by the body of international legal science.
Are there differences between humanitarian law and general international law regarding reprisals?
Yes, humanitarian law (in particular the Geneva Conventions and their additional protocols) imposes special requirements for reprisals, so-called reprisals, during armed conflicts. Such reprisals are largely prohibited in modern armed conflicts, particularly against civilians, prisoners of war, the wounded, and medical personnel. Even in situations where reprisals might be theoretically possible, strict limits apply: they may only be used as a last resort (ultima ratio), must be proportionate, and specifically directed against the military adversary. General international law, however, particularly as established by the UN Charter, virtually prohibits any use of force as a reprisal between states.
How do international courts assess reprisals?
International courts such as the International Court of Justice (ICJ) have spoken out against the permissibility of military reprisals in several fundamental judgments. In the so-called Oil Platforms Case (Iran vs. USA, 2003), the ICJ clarified that measures taken solely for the purpose of retaliation in response to an attack—which do not fulfill an immediate necessity of defense—cannot be considered legitimate self-defense. The ICJ regularly emphasizes that the prohibition of force in the UN Charter applies without restriction to ‘retaliatory attacks’ as well. Only in individual cases can non-violent countermeasures be considered legitimate under certain conditions.
Are reprisals permitted in domestic law?
Domestic law generally aligns with the fundamental requirements of international law, particularly when it comes to the use of force in the international arena, such as by armed forces. However, the term ‘reprisal’ may be used differently in domestic law, such as in criminal law, for instance as unlawful vigilante justice or a revenge act. In the sphere of state action, for example by police or military, a legal basis as well as observance of fundamental rights and proportionality are essential, so that a reprisal without an immediate self-defense situation is considered impermissible.
What are the consequences of unlawful reprisals under international law?
States that violate the prohibition of force in the UN Charter by carrying out unlawful reprisals can be confronted with a wide range of consequences by the international community. These include political and economic sanctions, diplomatic isolation, and the possibility of being held accountable before the International Court of Justice. In addition, individuals responsible for unlawful reprisals—such as heads of state or military commanders—may face prosecution for war crimes or crimes against humanity before the International Criminal Court. In the long term, such a violation can significantly damage a state’s international reputation and its relations with other states.
