Reprisals admissible for every Illegitimate Act of Warfare.
§ 248. Whereas reprisals in time of peace are admissible for international delinquencies only, reprisals between belligerents are at once admissible for every and any act of illegitimate warfare, whether the act constitutes an international delinquency or not. It is for the consideration of the injured belligerent as to whether he will at once resort to reprisals, or, before doing so, will lodge complaints with the enemy or with neutral States. Practically, however, a belligerent will rarely resort at once to reprisals, provided the violation of the rules of legitimate warfare is not very grave and the safety of his troops does not require prompt and drastic measures. Thus, the Germans during the Franco-German War frequently by way of reprisal, bombarded and fired undefended open villages where their soldiers were treacherously killed by enemy individuals in ambush who did not belong to the armed forces. And Lord Roberts, during the South African War, ordered[472] by way of reprisal the destruction of houses and farms in the vicinity of the place where damage was done to the lines of communication.[473]
[472] See section 4 of the Proclamation of June 19, 1900 (Martens, N.R.G. 2nd Ser., XXXII. p. 147), and Beak, The Aftermath of War (1906), p. 11.
[473] That prisoners of war may be made the objects of reprisals for acts of illegitimate warfare committed by the enemy, there is hardly any doubt; see Beinhauer, Die Kriegsgefangenschaft (1910), p. 74.
Danger of Arbitrariness in Reprisals.
§ 249. The right to exercise reprisals carries with it great danger of arbitrariness, for often the alleged facts which make belligerents resort to reprisals are not sufficiently verified, or the rules of war which they consider the enemy has violated are sometimes not generally recognised, or the act of reprisal performed is often excessive compared with the precedent act of illegitimate warfare. Three cases may illustrate this danger.
(1) In 1782 Joshua Huddy, a captain in the army of the American insurgents, was taken prisoner by loyalists and handed over to a Captain Lippencott for the ostensible purpose of being exchanged, but was arbitrarily hanged. The commander of the British troops had Lippencott arrested, and ordered him to be tried for murder. Lippencott was, however, acquitted by the court-martial, as there was evidence to show that his command to execute Huddy was in accordance with orders of a Board which he was bound to obey. Thereupon some British officers who were prisoners of war in the hands of the Americans were directed to cast lots to determine who should be executed by way of reprisal for the execution of Huddy. The lot fell on Captain Asgill, a young officer only nineteen years old, and he would have been executed but for the mediation of the Queen of France, who saved his life.[474]
(2) "The British Government, having sent to England, early in 1813, to be tried for treason, twenty-three Irishmen, naturalised in the United States, who had been captured on vessels of the United States, Congress authorised the President to retaliate. Under this act, General Dearborn placed in close confinement twenty-three prisoners taken at Fort George. General Prevost, under express directions of Lord Bathurst, ordered the close imprisonment of double the number of commissioned and non-commissioned United States' officers. This was followed by a threat of 'unmitigated severity against the American citizens and villages' in case the system of retaliation was pursued. Mr. Madison having retorted by putting in confinement a similar number of British officers taken by the United States, General Prevost immediately retorted by subjecting to the same discipline all his prisoners whatsoever.... A better temper, however, soon came over the British Government, by whom this system had been instituted. A party of United States' officers, who were prisoners of war in England, were released on parole, with instructions to state to the President that the twenty-three prisoners who had been charged with treason in England had not been tried, but remained on the usual basis of prisoners of war. This led to the dismissal on parole of all the officers of both sides."[475]
(3) During the Franco-German War the French had captured forty German merchantmen, and made their captains and crews prisoners of war. Count Bismarck, who considered it against International Law to detain these men as prisoners, demanded their liberation, and when the French refused this, ordered by way of reprisal forty French private individuals of local importance to be arrested and to be sent as prisoners of war to Bremen, where they were kept until the end of the war. Count Bismarck was decidedly wrong,[476] since France had, as the law then stood, in no way committed an illegal act by detaining the German crews as prisoners of war.[477]
[474] See the case reported in Martens, Causes Célèbres, III, pp. 311-321. See also Phillimore, III. § 105.