The Pros and Cons of Reprisals in the Workplace
Like military necessity, the doctrine of reprisals can justify setting aside the protection that is normally afforded to innocents under the international laws of war. Reprisals constitute the traditional remedy for belligerents against whom war crimes have been committed.
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Reprisals are conducted either to deter further occurrences of the crimes or to force one’s opponent into offering redress for those crimes already committed. In the parlance of contemporary international law, reprisals are acts that would normally be violations of the laws of war, but that are exceptionally permitted as a means of compelling a lawless enemy back into conformity with the law.
There is no requirement that reprisals reflect the type of violation that they seek to stem. If, for example, one nation uses a certain type of illegal weapon (say a viral or bacteriological agent), the nation against which it is employed can legally employ another type of “illegal” weapon (say a chemical agent) in reprisal.
The form that reprisals may take is left entirely to the discretion of the party initiating them. The important point is that reprisals be motivated by a desire to force obedience to the law rather than by a desire for revenge. This type of belligerent reprisal is not to be confused with our previous discussion of reprisals in Chapter 4.
The earlier discussion addressed reprisals conducted outside of or instead of war: here we will focus on reprisals that are conducted by belligerents during the war as a legal remedy for another party’s illegal actions, although both types are undoubtedly similar in many respects.
When the doctrine of reprisals is coupled with the current doctrine regarding the military necessity, the potential for “lawlessness” becomes disturbing. If one warring faction is the one losing the war. invokes military necessity to justify violating the laws of war, then the opposing side is then justified in violating the same or other laws in reprisal.
And because under current international law, one side will always be justified in invoking military necessity, and the other will always be justified in conducting reprisals (and counter reprisals, etc.), there can never be a war in which the humanitarian laws are anything but ideals to be followed just in case you are winning and your opponent continues to follow them even though he is losing.
The status of reprisals as a legitimate means of enforcing the laws of war has long been an issue of contention. In 1874, the Russian delegation fought to get a variation of Lieber’s restrictive use of reprisals written into the Brussels documents, and when they were unsuccessful, F.F. Martens, a Russian jurist and president of the 1899 Hague Convention, noted:
I regret that the uncertainty of silence is to prevail concerning one of the most bitter necessities of war. If the practice could be suppressed by this reticence, I could but approve of this course. But if it is still to exist, this reticence may, it is to be feared, remove any limits to its exercise.
Neither the members of the Brussels Conference of 1874 nor the Hague conferences of 1899 and 1907 were able to reach an agreement on the topic, and the issue of reprisals does not appear in international documents until the Geneva Convention of 1929.
Reprisals against prisoners of war are expressly prohibited by Article 2 of the Geneva Convention of 1929 and Article 13 of the Geneva Convention (III) of 1949. Other limitations in international law on the conduct of reprisals include prohibitions against harming wounded, sick, or medical personnel or equipment, shipwrecked persons, and all persons under the protection of the nation contemplating reprisals.
Despite these restrictions, the examples, I have chosen for our discussion several concern reprisals against prisoners. I have included them primarily because they are widely discussed cases. but also because the interesting aspects of the issue of reprisals are identical whether one postulates prisoners of war or civilians as the victims.
During the American Revolutionary War, General Washington, angered by the British refusal to respond to his inquiries concern- the death of a New Jersey militia captain, ordered the designation of a British prisoner (Captain Asgill) to be executed in reprisal. After Washington had designated the time and place of the execution, the British responded with an explanation, Washington was satisfied, and the “terrible alternative” was avoided.
My second example is taken from Telford Taylor’s discussion of reprisals in Nuremberg and Vietnam: An American Tragedy:
In 1864, Union general David Hunter burned many Virginian homes during his advance in the Shenandoah Valley. The Confederate General Jubal Early drove Hunter’s forces back across the Potomac and, when Confederate troops reached Chambersburg, Pa. Early ordered the town burned by way of reprisal. The regimental commander in Chambersburg, Colonel William E. Peters, refused to obey Early’s order and was relieved of his command and placed under arrest, while others did the burning.
Our third example occurred during World War II when the French Forces of the Interior continued to fight German occupation forces in France. Germany refused to treat members of the French Resistance as combatants-even though they wore insignia, carried their arms openly, and were in touch with both the Allies and the French Provisional Government in Algeria and subjected them to summary execution despite formal protests by the Provisional Government.
The French Forces of the Interior threatened reprisals. And when the executions did not stop, they shot eighty German prisoners under their control.
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Finally, in 1965, the National Liberation Front (Vietcong) executed three American prisoners (one officer and two noncommissioned officers) in reprisal for the South Vietnamese executions of three captured Vietcong “terrorists.”
The consequentialist logic of such cases is manifest: By conducting reprisals the harm suffered by one’s own soldiers and/or civilians is less than if reprisals are not conducted. And, of course, the assumption-undoubtedly true in some cases at least-is that no alternative method will yield the same desirable results.
Sheldon Cohen has recently used variations of the consequentialist argument to defend the doctrine of reprisals. I am not sure that he is really as committed to reprisals as he seems to be, or to what extent he would defend the arguments I develop in the following discussions. Nevertheless, I will refer to Cohen’s arguments and will use them to underscore some difficulties for the doctrine of reprisals as it is currently manifested in international law and practice.
After discussing the above example concerning Germany and the French Forces of the Interior, Cohen writes:
The French had an obligation to their fighters and to their cause, which would be harmed if every would-be volunteer had to mull over the fact that he would be executed if he were captured. The execution of the German prisoners was a terrible act, but when the Germans did not reply to the French protests, nor to the French threats for taking reprisals on captured Germans, the responsibility for those deaths passed to the Germans, who had left the French with no other effective means of ending the executions…
The eighty dead Germans should be added to the eighty dead Frenchmen as the result of German decisions. When a criminal act by one belligerent leaves the other no effective means of compelling the first to desist except those who have been placed in the dilemma, but of those who created another act of the same kind, the responsibility lies, not in the hands of their own.
Cohen argues that “the French had an obligation to fighters and their cause,” and that fulfillment of this obligation was being impeded because prospective soldiers had second thoughts about joining the Resistance in light of the German policy. Moral dilemmas are invariably questions of competing for foroblig override the obligation that belligerents have not to harm prisoners’ actions.
In this case, Cohen provides two obligations that he believes that the prohibition against murdering prisoners. The second is war. The first is that the French cause is of greater importance that the French Resistance had a responsibility to protect those of their forces who had fallen into enemy hands and that these obligations were under their control. Let us take the arguments one at a time was greater than their responsibility not to execute enemy sol time.
Even if, for the sake of discussion, we concede Cohen’s contention that the importance of the French cause justifies intentionally executing innocents, he must also convince us that there is a correlation between the German policy of murdering partisans and the French cause. Cohen suggests that some patriots who would otherwise volunteer to fight the German soldiers occupying their country might be deterred because of the German policy.
If so, then this would hurt the French cause. Put this way, we can recognize this argument as a veiled appeal to military necessity as the justification for conducting reprisals. But this appeal to necessity seems highly questionable. Surely patriots who voluntarily enlist to fight in a guerrilla war against a world power like Germany are profoundly aware of the possibility that they may be killed.
For Cohen’s argument to persuade, we would have to imagine a prospective volunteer who is ready to join the resistance against the Germans despite the realization that he (or she) may very well be killed in battle, but who decides not to join because of the possibility that he or she will be captured and then killed. This seems too far-fetched to be plausible. And even if we grant that this dubious line of reasoning may have been taken by some French patriots, it is too much of a concession to presume that they would be of sufficient number to “hurt the French cause.” If anything, the German policy made the French partisans fight with even more tenacity, realizing as they did that surrender meant execution. Put this way, the German policy may have helped the French cause rather than hurt it as Cohen argues.
Cohen’s second justification for the French reprisals is somewhat more plausible. Here Cohen maintains that if one side can prevent the murder of its soldiers who are in enemy hands by murdering enemy prisoners in their hands, then it must do so. The conflict is between the negative duty not to harm innocents intentionally (MT) on one hand, and the positive duty to prevent others from intentionally harming innocents (MT) on the other.
One could, of course, respond that the former is more fundamental, as we concluded in the last chapter; but some might argue that this is heavy-handed, especially since military leaders have a special obligation to care for the welfare of their soldiers.
It is reasonable for Cohen to assert that the positive and negative duties associated with the prohibition against harming innocents are equally weighty, at least in this case. Granting this, one can furthermore argue that in those cases where the alternatives are governed by the same or equal principles, it is reasonable to resort to a comparison of consequences as a means of choosing between them.
Applying this line of reasoning to the case at hand, Cohen can argue that, given that the Germans have executed eighty French prisoners, the French are faced with only two alternatives: either not retaliate or expect more French prisoners to be executed, or retaliate and make it in the Germans’ interests to stop executing French prisoners to protect their soldiers. The alternatives might look something like this:
The French do not conduct reprisals and the Germans continue to execute n number of French prisoners: total innocent deaths: plushier French conducted reprisals, kill 80 German prisoners, and the Germans stop executing French prisoners: total innocent deaths: 160.
One might object that, whereas the two alternatives presented in the example are exhaustive (i.e., either conduct reprisals or not conduct them), the consequences that are presumed to follow each course of action (integrated into A, and A, with conjunction) are not so certain.
This argument, one might object, only justifies reprisals when they are successful; that is, for A, to be justified on a purely objective, consequentialist evaluation, one would have to assume that n > 80. And since it is impossible to say with any assurance that any particular act of reprisal will be successful (e.g. that n>80), it will always be a question of committing a known wrong for possible good.
Moreover, objectors might add, if one is going to use condimental, universal prohibition such as the one against the intenquentialist argument to justify making exceptions to the most functionally executing innocent people-then the consequentialist must live with the results when one is not successful.
In those cases, then, where one side intentionally executes innocent people in an unsuccessful effort to deter like actions by the other side, those who perpetrate the crimes are guilty of premeditated murder, regardless of standing, the arguments supporting reprisals based on consent- of their worthy motives. And my earlier examples’ not with quinces are not convincing because the empirical evidence is that reprisals tend to lead to counter-reprisals and an eventual denegation of all restraints in the conduct of war. As Telford Taylor notes in his discussion of this topic: “Reprisals…are not much used today, partly because they are generally ineffective, and partly because the resort to crime to reform the criminal is an unappetizing method.” Another well-known commentator on the laws of war writes: “The doctrine of reprisals in its present somewhat obscure and undefined state provides the chief loophole for the evasion, violation, and nullification of the laws of war.”
One good example of an attempt at abusing the doctrine can be found in the opening sentence of Hitler’s Commando Order: “For some time our enemies have been using in their warfare methods which are outside the international Geneva Conventions.”11 Hitler used this as his justification for ordering the summary execution of all Allied forces found behind German lines.
One way to avoid the difficulty with this consequentialist argument as I have constructed it is to give special weight to the deaths of one side over the other. One may believe, for example, that because the Germans are guilty both of starting the war and violating the laws of war they have forfeited their right to protection under the law. This line of reasoning would allow one to conclude that the execution of eighty guilty Germans is justified regardless of whether or not it prevents the deaths of more innocent Frenchman.
This will not do, however, because, as Grotius reminds us, it is fiction to imagine that an entire people share in the guilt of their status as combatants, not because of their guilt. And in this crime perpetrated by a few. Soldiers are subject to attack because of the case, the German soldiers in question were innocent, in terms of both jus ad Bellum and Jus in Bello, and their status was that of prisoner of war rather than combatant, The execution of eighty Germans based on this line of reasoning would be motivated more by retaliation or revenge than a desire to enforce the law, and such action is both morally wrong and expressly prohibited by international law.
Read More: The Responsibility for War Crimes