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Session: 2012-2017

PROJECT ON INTERNATIONAL HUMANITARIAN LAW

REPRISAL

Submitted To: Submitted By:

Mrs.Sugandha Sinha AnukritiShail


Faculty,International Humanitarian law Roll no.- 723

ACKNOWLEDGEMENT
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I am very thankful to everyone who all supported me for I have completed my
project effectively and moreover on time. I am equally grateful to faculty: Mrs.
Sugandha Sinha She gave me moral support and guided me in different matters
regarding the topic. He had been very kind and patient while suggesting me the
outlines of this project and correcting my doubts. I thank him for his overall
supports. Last but not the least, I would like to thank my friends who helped me a
lot in gathering different information, collecting data and guiding me from time to
time in making this project despite of their busy schedules ,they gave me different
ideas in making this project unique.

Thanking you

Anukriti Shail

Roll no. 723

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CONTENTS
INTRODUCTION
Historical Evolution of the Concept of Reprisals
Elements of Reprisal
International Conventions and Reprisal
Considerations against Reprisal
United States Rules Regarding Reprisals

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INTRODUCTION
A reprisal is a limited and deliberate violation of international law to punish
another sovereign state that has already broken them.1 Reprisals in the laws of war are extremely
limited, as they commonly breached the rights of non-combatants, an action outlawed by
the Geneva Conventions. It is not to be confused with retorsions, as these constitute unfriendly
acts generally permitted by international law. The word came from French, where it originally
meant "act of taking back", for example, raiding back the equivalent of cattle lost to an enemy
raid.2

Reprisals refer to acts which are illegal if taken alone, but become legal when adopted by one
state in retaliation for the commission of an earlier illegal act by another state. 3 Counter-reprisals
are generally not allowed.

An example of reprisal is the Naulila dispute between Portugal and Germany in October 1914.
After three Germans were mistakenly killed in Naulila on the border of the then-Portuguese
colony of Angola (in a manner that did not violate international law), Germany carried out a
military raid on Naulila, destroying property in retaliation. A claim for compensation was
brought by Portugal. The tribunal emphasized that before reprisals could be legally undertaken, a
number of conditions had to be satisfied:

There had to be a previous act by the other party that violated international law.

Reprisals had to be preceded by an unsatisfied demand for reparation or compliance with


the violated international law.

There must be proportionality between the offence and reprisal.

The German claim that it had acted lawfully was rejected on all three grounds.4

1 Karl Josef Partsch: Self-Preservation. EPIL IV (2000), pages 380-383

2 "reprisal (n.) etymonline.com. Retrieved December 13, 2014.

3 http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule145

4 Shaw, Malcolm (2008). International Law (6th edn). Cambridge: Cambridge University Press.
p. 1129. ISBN 978-0-521-72814-0.

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After 1945, as a result of the general prohibition on use of force imposed by Article 2(4) of
the United Nations Charter, armed reprisals in time of peace are no longer legal, but the
possibility remains of non-armed reprisals (also known as countermeasures) as well as
belligerent reprisals during hostilities when the law of international armed conflict (LOIAC) is
violated.

In the case of belligerent reprisals, apart from the three factors in the Naulila case, a warning
must also be issued beforehand; once the other party has stopped violation of LOIAC, belligerent
reprisals must also be terminated; and the decision to engage in belligerent reprisals must be
taken by a competent authority. All four Geneva Conventions prohibit reprisals against,
respectively, battlefield casualties, shipwreck survivors, prisoners of war, and protected persons
(civilian or military),5 as well as certain buildings and property. An additional 1977 protocol
extends this to cover historic monuments, works of art, and places of worship.

Reprisals under International Law


Reprisal is an otherwise illegal act done in response to a prior illegal act by an enemy,
proportionate to the original wrong and designed to compel the enemy to desist from his illegal
acts on the battlefield. Under such circumstances, the law of armed conflict recognizes the
otherwise illegal act as legal. International law has evolved in its application of the doctrine of
reprisal to avoid an increasing spiral of violence as one side reprises against anothers illegal acts
generating increasingly violent bloodshed, when the laws of war are designed to regulate and
limit such harm. Some commentators have gone so far as to suggest that international law should
no longer recognize the doctrine of reprisal due to its lack of efficacy. But the doctrine lives
notwithstanding efforts to ban reprisals in international conventions, and soldiers should be
allowed to avail themselves of the doctrine in defending their actions alleged to beillegal.

Naulilaa Case

The classic definition of reprisal comes from the Naulilaa case, involving claims between
Portugal and Germany, in which the arbitration tribunal stated:

Reprisals are an act of self-help on the part of the injured states, responding after an unsatisfied
demand to an act contrary to international law on the part of the offending State . . . . They would
be illegal if a previous act contrary to international law had not furnished the reason for them.
They aim to impose on the offending Sate reparation for the offense or the return to legality in

5 CHAPTER 8 - REMEDIES FOR VIOLATION OF INTERNATIONAL LAW; WAR CRIMES". ihl-


databases.icrc.org. Retrieved 2016-10-10.

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avoidance of new offenses.6 The aim of the reprisal, and the element that distinguishes it from an
act purely of self-defense or vengeance, is to compel another state or entity to abide by
international lawn and the laws of war in the on-going battle, or jus in bello.7

In addition, the Naulilaa case laid out requirements or limits on use of reprisal by a state,
including:

(1) that the reprisal may only be carried out by a state or its agent or instrumentality;

(2) the act of reprisal must be proportionate to the illegal act it responds to; and,

(3) there must first be an attempt to resolve or address the illegal act by other

than resort to force. In Naulilaa, the arbitration panel found the state claiming authorized
reprisal, Germany, had not met the requirements in that the response was not proportionate,
having destroyed Portuguese forts and posts in six separate acts in response to the loss of three
Germans; the earlier Portuguese misunderstanding did not violate international law; and there
had been no attempt to resolve the matter peacefully before resorting to reprisal.
8
Notwithstanding that Germanys claim of reprisal was found to be without merit, the standards
enunciated remain valid.

6 2Andrew D. Mitchell, Does One Illegality Merit Another? The Law of Belligerent
Reprisals in International Law, Military Law Review 170 (December 2001): 156.

7 3Ibid., 157.

8 Michael J. Kelly, Time Warp to 1945 Resurrection of the Reprisal and Anticipatory Self-Defense
Doctrines in International Law, Journal of Transnational Law & Policy 13, no. 1 (Fall 2003): 4.

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Historical Evolution of the Concept of Reprisals

1 Although bearing a great tradition in the history of public international law, the notion of
reprisals has considerably changed in recent time and has, to a large extent, been replaced by the
concept of countermeasures. Nowadays, the latter notion is almost exclusively used for any
measure that would formerly have been designated as a reprisal in peace-time (Crawford 168).
Consequently, the term reprisals is now limited to war-time measures. Therefore, the current
concept of reprisals is twofold. Reprisals represent

(i)the historical basis of any countermeasures, whether in times of peace or times of war and

(ii) countermeasures in wartime.

2 Roughly explained, reprisals are conceived as measures undertaken by one subject of public
international law to coerce another subject of public international law to abide by its legal
obligations towards the first of the subjects mentioned (Subjects of International Law). In this
respect, the concept of reprisals reflects the decentralized structure of law enforcement in the
international community. This becomes evident in the historical development of reprisals which
can be subdivided in four periodsthe fourth period representing the current state of the law.

3 The first phase of development in a way lies outside the scope of modern international law. It
is the period of unlimited private self-help in the Middle Ages, which is also an epoch in the
general development of law. Whoever was affected by a foreigner could seek retaliation against
him or his compatriots. States did not intervene in the exercise of such action. That phase is only
relevant insofar as it shows that decentralized enforcement can take a rather primitive shape if it
is not governed by legal restraints, and as a historical root it still lies behind the criticisms
questioning the character of public international law as law.

4 The second phase gradually comes in with the necessity of some kind of public endorsement
for private enforcement action. This endorsement is provided by so-called letters of marque or
reprisals (still mentioned in Art. 1 (8) Constitution of the United States of America as a power of
congress) issued by higher instances in the feudal system such as kings, princes, counts etc,

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particularly on the high seas (see also Privateering). Such letters can be detected in the 13th
century at the earliest and there is a particular link to the historical roots of prize law as far as the
high seas are concerned. This period phases out with a shift towards general reprisals between
States instead of authorized private self-help in the Treaty of Commerce and Navigation between
France and Great Britain ([done 26 September 1786] [178690] 50 CTS 71).

5 The third phase is marked by the gradual introduction of the prohibition of the use of force in
peacetime (Use of Force, Prohibition of). It starts with the Drago-Porter Convention (1907)
limiting the use of armed force for the recovery of contractual debts, is furthered by the Kellogg-
Briand Pact (1928), and finalized by Art. 2 (4) UN Charter. Parallel to this prohibition,
humanitarian law limits the performance of reprisals in wartime

6 Although reprisals have always, to a great extent, been employed by means of military force,
this is not a necessary element. The remaining admissible measures such as the non-performance
of certain treaty obligations or the breach of economic duties vis--vis other States are, however,
badly characterized by the term reprisals, at least in peacetime. Therefore, since the air transport
disputes in the late 1970s (Air Transport Disputes, Arbitrations on), it has been replaced by the
notion of countermeasures for such measures if performed outside wars (Case concerning the Air
Service Agreement of 27 March 1946 between the United States of America and France [1978]
18 RIAA 417, para. 80). Further instances of the shift in terminology are the International Court
of Justice (ICJ) cases United States Diplomatic and Consular Staff in Tehran Military and
Paramilitary Activities in and against and Gabkovo-Nagymaros Project Consequently, the
fourthand presentphase is one of re-arrangement of the concept as such.

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Elements of Reprisal
At first blush, the first element of reprisal under Naulilaa might appear to make this doctrine
inapplicable to Operations Enduring and Iraqi Freedom where the violator is not a state. But the
importance of the state requirement is to limit the possibilities of unconstrained responses
characterized as reprisals and an abrogation of compliance with the law of war by a party to the
conflict. The law should read state generally to mean a party to the conflict, without regard to
state borders. Thus, where Al Qaeda or Shia or Sunni groups or cells have waged a fight against
American forces in Afghanistan and Iraq, then these cells or groups become essentially the
state for analysis of the reprisal doctrine. At the same time as one examines the source of the
original violation, so also must one examine the nature of the violation. An illegal act that might
give rise to reprisal must be a violation of the law of armed conflict, that is, a law regarding the
conduct of war and not the precipitation of conflict. Addressing reprisals within the context of
the conduct of war avoids entities committing illegal acts, characterized as reprisals, simply
based on the allegation of an illegal act of aggression, or jus ad bellum.

The requirement for proportionality in reprisal may not be a purely 1:1 calculation, particularly
as there is no requirement that the form of reprisal match the nature of the original illegal act,
e.g., an illegal use of a weapon by the first actor does not limit reprisal only to another illegal use
of that kind of weapon. But as the Naulilaa arbitration found the German claimed reprisal illegal
based in part on lack of proportionality, states must articulate the basis for the measure of
response. In assessing whether the response is proportionate, one considers that the basis for the
reprisal is to force compliance with international law. This proviso may mean that less harm
might compel the desired compliance, but the upper limit on proportionality in reprisal would
appear to be the level of violence in the original act. The Commission of Experts convened by
the United Nations noted that the proportionality is not strict, for if the reprisal is to be effective,
it will often be greater than the original wrongdoing. Nevertheless, there must be a reasonable
relationship between the original wrong and the reprisal measure.9

The third element of attempting to address the illegal act by means other than resort to force
characterizes reprisal as a last resort, or the principle of subsidiarity.10 Although means short of

9 United Nations Security Council, Commission of Experts Final Report, S/1994/674 (New York:
United Nations Security Council, May 27 1994), in section II.F., Applicable Law, Reprisals,
http://www.his.com/~twarrick/commxyu3.htm (accessed February 13, 2009).

10 Frits Kalshoven, Reprisal, in Crimes of War: What the Public Should Know (a-z guide), eds.,
Sheryl Mendez, Anthony Dowrkin, Roy Gutman and David Rieff (West Sussex, UK: John Wiley and
Sons Limited, 2007), http://www.crimesofwar.org/thebook/reprisal.html (accessed February 13,
2009).

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force are preferred, such alternatives are not required where expeditious response will save lives.
Requiring resort to peaceful resolution, however, reinforces the efforts to avoid upward spirals in
violence by entities claiming reprisals. Additional elements of reprisal found in customary
international law include notice, i.e., warning of the reprisal action, and that the reprisal is
temporary in that it ceases once the adversary stops violating the law.11

11 Ibid.

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International Conventions and Reprisal

International law and treaties have addressed reprisals and over time circumscribed their
application by more limited definitions of persons or things subject to reprisals. Largely in
response to reprisals in the First and Second World Wars, parties to the Geneva Conventions
prohibited reprisals against prisoners of war, and later extended the prohibition to the wounded
and sick, and medical personnel and their equipment or facilities. 12 Civilians and civilian
property in occupied territories or internment also gained protection from reprisals, as did
cultural property. The Protocols to the Geneva Conventions sought further to expand the
protected groups from reprisal, but those provisions met resistance and many ratifying states
asserted reservations to the reprisal limitations. Currently, the Geneva Conventions do not
contain a ban on reprisals, but for international armed conflicts any reprisals must be directed
against combatants or other military objectives.13

The importance of this evolution in the law is to reflect the growing concern to protect classes of
people and property from unlawful violence even during a conflict, but also the continued
insistence by states on the viability of the doctrine of reprisal. This view thus recognizes the
existence of non-compliant entities with the law of armed conflict and the need to respond and
compel their adherence to a standard of conduct. Applying this view to on-going operations in
Afghanistan and Iraq, there is a need to compel enemy forces to comply with rules regarding the
conduct of war, and exhortations by the United States have not succeeded. In such cases
belligerent reprisals remain one of the only viable sanctions in the face of persistent violations of
the law of war. The greater challenge for parties executing reprisals is to identify and target
parties that are not protected. This discrimination is particularly challenging where the enemy
does not distinguish itself by appearance or uniform, and where the lines between participants in
the war and those who abstain are so vague. As noted by one scholar, urban bombings in World
War II, justified as reprisals, reduced the laws of war to the vanishing point.14

12 Shane Darcy, The Evolution of the Law of Belligerent Reprisals, Military Law Review 175
(March 2003): 199.

13United Nations Security Council, Commission of Experts Final Report.

14 Howard M. Hensel, ed., The Law of Armed Conflict, (Burlington, VT: Ashgate Publishing
Company, 2005), 110.

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A criticism of reprisal as a means of self-help by states is that it fails to serve any effective
deterrent function and, in fact, is just as likely to escalate conflict. Certainly on todays
battlefields, the enemy who routinely commits law of armed conflict violations has shown no
motivation to alter his behavior to comply with international law. The most logical alternative to
reprisal might be an effective tribunal to hear claims of the state victim of the illegal act. But
historically such tribunals lack efficacy during a conflict, and they may rely on the offending
state to turn over custody of the alleged violator. Rarely will a state take such action against its
own citizenry or members of its armed forces. The United States course of action is to hold
members of its armed forces accountable through its own judicial process, applying the Uniform
Code of Military Justice to acts committed on the battlefield.

Remoteness in time of the sanctions from an international tribunal, assuming it gains competence
from consent of the parties, reinforces the need for reprisal as an option for victim states of
violations of the law of armed conflict. The threat of reprisal gives force to the demand for a state
to refrain from violations in the conduct of war, or at a minimum, may deter more egregious
behavior. The issue for todays conflicts is whether a non-state entity that shows virtually no
compliance with the law of armed conflict will or can be influenced to cease their violations if
they experience treatment in kind; or, whether a series of reprisals may constitute a continuous
exchange of increasingly violent hostilities.

One might resolve the viability of the doctrine of reprisals depending on whether one adopts a
traditional view of international law characterized by reciprocity between states. In that case, the
wrong done by one state merits a wrong done unto it by the victim-state. The modern construct,
however, calls for obligations not only to other states under international law, but also to the
international community at large, and respect for human rights to all peoples that would dissuade
recourse to reprisal notwithstanding the wrong done by an opposing entity.15 The 1949 Genevan

15 Mitchell, Does One Illegality Merit Another?, 175.

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Conventions reinforced the obligation of a states respect toward non-combatants in all
circumstances as opposed to determining its actions based simply on state to state reciprocity.16
Current application of this adherence to international human rights law as a basis of prohibiting
all forms of reprisal was enunciated by the International Criminal.

Tribunal for the former Yugoslavia (ICTY):14

The Trial Chamber wishes to stress, in this regard, the irrelevance of reciprocity, particularly in
relation to obligations found within international humanitarian law which have an absolute and
non-derogable character. It thus follows that the tu quoque defence has no place in contemporary
international humanitarian law. The defining characteristic of modern international humanitarian
law is instead the obligation to uphold key tenets of this body of law regardless of the conduct of
enemy combatants.17 ICTY asserted that international prosecution for war crimes was the remedy
for violations rather than reprisals; notwithstanding the pronouncements of the ICTY, however,
the doctrine of reprisals is not dead.

16 Hensel, The Law of Armed Conflict, 173.

17 Ibid.

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United States Rules Regarding Reprisals

United States regulations permit reprisal by US forces as laid out in Field Manual (FM) 27-10,
Law of Land Warfare.18 It recognizes reprisal as a proper remedial action for violation of the law
of war against the United States.19 The Army rules prohibit reprisals against prisoners of war, the
wounded and sick and protected civilians, but permit reprisals against enemy troops. Of note,
FM 27-10 adheres to the tenets of international law by expressly prohibiting reprisals as a form
of revenge, and further requires that individual soldiers should not execute reprisals unless
approved on order of a commander, but without further specifying the level of a subordinate
commander.

who may approve a reprisal.

The argument against reprisals exists that, insofar as any situation where a belligerent reprisal
seems permissible presents the belligerent with an opportunity to violate a rule of the law of war
with impunity.20 As the doctrine of reprisal developed, an act of reprisal could only be taken by
authority of the government of a state. Illegal acts in World Wars I and II resulted in
indiscriminate attacks that killed civilians, but the belligerent parties qualified their acts as
reprisals, and therefore asserted they were not illegal. Discussion in drafting Protocols I and II to
the Geneva Conventions had as one view that actions in reprisal could only be taken at high
levels of government, reflecting a desire that by withholding authority to a higher level might
avoid a series of counter-reprisals that would result in ever increasing violence. Requiring high
level approval also responded to the argument against reprisals that the likelihood an individual
who committed a violation of the law of war would be tried by national courts is meager, and if

18 U.S. Department of the Army, The Law of Land Warfare, Field Manual 27-10
(Washington, D.C.: U.S. Department of the Army, 15 July 1976), 176.

19 Ibid.

20 anislaw E. Nahlik, From Reprisals to Individual Penal Responsibility, in


Humanitarian Law of Armed Conflict: Challenges Ahead, eds. Astrid J.M. Delissen
and Gerard J. Tanja (Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991),
165.

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tried, the offender would likely only receive a mild punishment. 21 In the United States military,
on the other hand, courts-martial have held soldiers accountable for their actions on the
battlefield.

An additional challenge with regard to belligerent reprisals is that most often the target of the
reprisal is not a perpetrator of the initial illegal act that forms the basis for the reprisal. Rather,
the victim is part of the group, or collective, and under a rubric of collective responsibility is
made to suffer for the acts of others in that group.22

The Oxford Manual addressed the authority to inflict harm on other than the perpetrators as
follows:

If the injured party deem the misdeed so serious in character as to make it necessary to recall the
enemy to a respect for law, no other recourse than a resort to reprisals remains. Reprisals are an
exception to the general rule of equity, that an innocent person ought not to suffer for the guilty.
They are also at variance with the rule that each belligerent should conform to the rules of war,
without reciprocity on the part of the enemy.

Although a reprisal target may not have been a perpetrator, clearly neither could he be a prisoner
of war. The 1929 Geneva Convention Relative to the Treatment of Prisoners of War protected
this group of potential targets, and the United States Military Commission following World War
II relied on that authority in denying a reprisal defense. In the trial of General Anton Dostler in
October 1945, the Commission reaffirmed there could be no reprisal against prisoners of war,
and found Dostler guilty of having had fifteen American prisoners executed. 23 While proper
reprisal measures are executed against an enemy not in compliance with the laws of war, the
challenge exists for American service members in Afghanistan and Iraq to distinguish

21 Nahlik, From Reprisals to Individual Penal Responsibility, 170.

22 Darcy, Collective Responsibility and Accountability Under International Law, 131.

23 Trial of General Anton Dostler, United States Military Commission, Rome, 8-12
October 1945, Case No. 2, I Law Reports of Trials of War Criminals 22, in Shane
Darcy, Collective Responsibility and Accountability Under International Law
I(Transnational Publishers, Inc., 2007), 139.

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combatants and non-combatants. The enemy does not wear a uniform and operates among the
civilian populace; those civilians may provide assistance to the enemy or carry out their own
attacks on US forces. When the local citizenry becomes involved in the war effort against
American soldiers, then they become subject to targeting for reprisals. The aim of reprisal is
then to compel the enemy authorities to bring the local citizenry in line, both to adhere to the law
of war and to protect the enemy force that may be subject to acts of reprisal. But where the status
of the offender is not clear, the reprisal target may be subject to scrutiny after the fact. In this
regard, the soldier executing the reprisal that caused civilian casualties must be allowed to try
and color his actions as reprisal, if the act meets the provisions as set forth below.

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CONDITIONS FOR BELLIGERENT REPISALS

Five conditions must be met in order for belligerent reprisals against permitted categories of
persons and objects not to be unlawful. Most of these conditions are laid down in military
manuals and are supported by official statements. These conditions are:

(i) Purpose of reprisals. Reprisals may only be taken in reaction to a prior serious violation of
international humanitarian law, and only for the purpose of inducing the adversary to comply
with the law. This condition is set forth in numerous military manuals, as well as in the
legislation of some States. It is also confirmed in national case-law.24 Because reprisals are a
reaction to a prior serious violation of international humanitarian law, anticipatory reprisals or
counter-reprisals are not permissible, nor can belligerent reprisals be a reaction to a violation
of another type of law. In addition, as reprisals are aimed at inducing the adversary to comply
with the law, they may not be carried out for the purpose of revenge or punishment.

There is limited practice allowing reprisals against allies of the violating State but it dates back to
the arbitration in the Cysne case in 1930 and to the Second World War.25 Practice since then
appears to indicate that resort to such reprisals is no longer valid. According to the Draft Articles
on State Responsibility, countermeasures are legitimate only against a State which is
responsible for an internationally wrongful act. This element of responsibility is also reflected
in some military manuals. However, whereas most military manuals remain silent on the
question of reprisals against allies of the violating State, Italys IHL Manual expressly states that

24Oxford Manual, Article 86 (ibid., 337); Draft Articles on State Responsibility,


Article 50(1

25 Oxford Manual, Article 86 (ibid., 337); Draft Articles on State Responsibility,


Article 50(1)

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a reprisal can, as a general rule, only be directed against the belligerent that violated the laws of
war.Other military manuals explain that reprisals are used against another State in order to
induce that State to stop the violation of international law.

Some military manuals specify that in the light of their specific purpose, reprisals must be
announced as such and publicized so that the adversary is aware of its obligation to comply with
the law.

(ii) Measure of last resort. Reprisals may only be carried out as a measure of last resort, when
no other lawful measures are available to induce the adversary to respect the law. This condition
is set forth in many military manuals. It is confirmed by national case-law. 26 It is also repeated
in the statements and proposals made by States at the Diplomatic Conference leading to the
adoption of the Additional Protocols, before the International Court of Justice in the Nuclear
Weapons case and on other occasions, when it was sometimes mentioned that prior warning must
be given and/or that other measures must have failed before resorting to reprisals. In its
reservation concerning reprisals made upon ratification of Additional Protocol I, the United
Kingdom reserved the right to take reprisal action only after formal warning to the adverse
party requiring cessation of the violations has been disregarded27 According to the Draft Articles
on State Responsibility, before taking countermeasures an injured State must call on the
responsible State to fulfil its obligations, notify the responsible State of any decision to take
countermeasures and offer to negotiate with that State.[24] In its judgment in the Kupreki case
in 2000, the International Criminal Tribunal for the former Yugoslavia confirmed what had
already been stated by the Special Arbitral Tribunal in the Naulilaa case in 1928, namely that
reprisals may only be carried out after a warning to the adverse party requiring cessation of the
violations has remained unheeded.

(iii) Proportionality. Reprisal action must be proportionate to the violation it aims to stop. This
condition was already laid down in 1880 in the Oxford Manual and was recently reaffirmed in
the Draft Articles on State Responsibility. It is also contained in many military manuals.
Furthermore, there is case-law concerning violations committed in the Second World War in
26 the practice of France (ibid., 190191)

27 United Kingdom, Reservation made upon ratification of Additional Protocol

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which the accuseds claims that their acts had been committed as lawful reprisals were rejected
because, inter alia, they were found to be disproportionate to the original violation.28

The requirement that reprisal measures be proportionate to the original wrong is repeated in
various statements and proposals made by States at the Diplomatic Conference leading to the
adoption of the Additional Protocols, before the International Court of Justice in the Nuclear
Weapons case and on other occasions. In its reservation concerning reprisals made upon
ratification of Additional Protocol I, the United Kingdom stated that any measures thus taken by
the United Kingdom will not be disproportionate to the violations giving rise thereto.29

The International Court of Justice in its advisory opinion in the Nuclear Weapons case in 1996
and the International Criminal Tribunal for the former Yugoslavia in its judgment in the
Kupreki case in 2000 confirmed what the Special Arbitral Tribunal had already stated in the
Naulilaa case in 1928, namely that belligerent reprisals are subject to the principle of
proportionality.30Most of the practice collected requires that acts taken in reprisal be
proportionate to the original violation. Only a few pieces of practice specify that proportionality
must be observed with regard to the damage suffered.

(iv) Decision at the highest level of government. The decision to resort to reprisals must be
taken at the highest level of government. Whereas the Oxford Manual states that only a
commander in chief is entitled to authorize reprisals, more recent practice indicates that such a
decision must be taken at the highest political level. State practice confirming this condition is
found in military manuals, as well as in some national legislation and official statements. In its
reservation concerning reprisals made upon ratification of Additional Protocol I, the United
Kingdom stated that reprisals would be taken only after a decision taken at the highest level of
government. In its judgment in the Kupreki case in 2000, the International Criminal Tribunal

28 Military Tribunal of Rome, Kappler case

29 United Kingdom, Reservation made upon ratification of Additional Protocol I

30 Nuclear Weapons case, Advisory Opinion (ibid., 255); ICTY, Kupreki case,
Judgment (ibid., 256); Special Arbitral Tribunal, Naulilaa case (ibid., 257)

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for the former Yugoslavia held that the decision to resort to a reprisal must be taken at the highest
political or military level and may not be decided by local commanders.31

(v) Termination. Reprisal action must cease as soon as the adversary complies with the law. This
condition, formulated as a formal prohibition in the event that the original wrong had been
repaired, was already laid down in 1880 in the Oxford Manual and was recently restated in the
Draft Articles on State Responsibility. It is also contained in several military manuals, official
statements and reported practice. In its reservation concerning reprisals made upon ratification of
Additional Protocol I, the United Kingdom stated that reprisals would not be continued after the
violations have ceased. In its judgment in the Kupreki case in 2000, the International Criminal
Tribunal for the former Yugoslavia confirmed that reprisal action must stop as soon as the
unlawful act has been discontinued.32

31 ICTY, Kupreki case, Judgment (ibid., 302).

32 ICTY, Kupreki case, Judgment (ibid., 333).

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Reprisal and Military Law

The challenge in applying reprisal is the context and who espouses it. There have been numerous
allegations of American soldiers having committed major crimes on todays battlefields,
including aggravated assault, rape and murder. Rarely, if ever in Afghanistan or Iraq, has a
declaration that such an action is a lawful reprisal preceded commission of the act. It is after
commission, discovery and charging that a soldier might posit reprisal as an affirmative
defense31 to criminal charges. In order to put an event in context, the first step in investigating
alleged unlawful acts should be to develop a general overview of the military situation. Next, the
individual should not be charged or convicted on the basis of hindsight but using information
available to him at the time of the event in question. Analysis and inquiry should include a
review of the tactical doctrine of opposing forces, in this case relying frequently on violations of
the law of armed conflict, and the tempo of military operations considered as a relevant factor in
determining the legitimacy of the enemy attacks. Ultimately, no criminal liability should attach
for good faith errors, and the duration and intensity of the attacks is relevant in determining
culpability.33

The Manual for Courts-Martial33provides special rules for defenses, and specifically for those,
such as reprisals, in which the accused does not deny having committed the objective act
constituting the charged offense, but denies criminal responsibility. In such cases the accused
soldier assumes the burden of proof to establish his defense and to show that the death or injury
caused was justified.

33 Manual for Courts-Martial, United States (Washington, D.C.: U.S. Government


Printing Office, 200

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Additionally, the law recognizes a mistake of fact defense if an accused soldier thought, for
instance, that the enemys original act was a violation of the law of war, and relied on that act as
a basis for his reprisal. Timing of the characterization of an act as reprisal is not in and of itself
determinative that it is or is not a lawful reprisal. There must, however, be some correlation
between the precipitating illegal act and the offending act defended as reprisal. The relevant
connection may be evaluated by time or individuals; that is, has the soldier accused of
wrongdoing suffered from illegal acts of the enemy, and was that a basis for his conduct. It is
important at this point in analysis not simply to underwrite acts of vengeance, but to apply the
legal doctrine and note that reprisal by a soldier at a given time must intend to reform the
conduct of his adversary, and not simply wreak vengeance, for an unlawful act committed under
the guise of retaliation or vengeance remains unlawful, and the claim of retaliation or vengeance
is no defense.34

Recognizing reprisal as an affirmative defense puts the burden on the soldier to prove the
propriety of his actions. That defense itself forces the accused soldier to act with conviction, for
the defense of reprisal at court-martial requires the soldier to admithe illegal nature of his act, but
assert its lawfulness in a broader context. The defense then assumes the burden of proving an
earlier illegal act by the enemy, and the soldiers authority to execute a reprisal, thereby making
his otherwise illegal act lawful in accordance with the doctrine.

The best means to analyze reprisal as a defense to criminal charges is to consider the legal
instructions a fact-finder would consider and apply to the facts as proven. Depart of the Army
Pamphlet 27-938 contains legal instructions, and this paper proposes adding the following
instruction for courts-martial in which an accused soldier asserts a defense of reprisal:

The accused in this case relies on the doctrine of reprisal to justify his actions. If you find that the
prosecution has not proven beyond a reasonable doubt that the accused committed the charged
offense, then the accused is not guilty and you need not make any findings as to reprisal. If, on
the other hand, you find the prosecution has proven the accused committed the charged illegal
act, then you must consider whether the doctrine of reprisal excuses the wrongful nature of the
accuseds act. In order to be valid, an act done in reprisal must meet the following conditions:

34 United Nations Security Council, Commission of Experts Final Report.

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(1) there was a prior law of war violation committed by an enemy combatant,

(2) that the accused, if he acted on his own authority, made an effort to redress the illegal act
before resort to force,

(3) that the act done by the accused was proportionate to the enemys illegal act, and

(4) that the act of the accused was done with the intent to make the enemy conform his conduct
to the laws of armed conflict and not merely as an act of vengeance, the latter of which is not
protected by reprisal and does not constitute a legal excuse for criminal conduct.

This proposed instruction on the law of reprisal sets the framework for a court-martial to
determine guilt or innocence of a soldier. But it is not formulaic so that a court-martial simply
finds evidence of each component; rather, there is ample room and need for the court to balance
the evidence and apply reprisal as a defense. This balancing reflects the concern that, [o]ne
must place oneself back into that period of stormy battles.in a quiet discussion of the legal
basis, these things sound very difficult and even incomprehensible. Expressions made at the
moment of embitterment, today, without an understanding of that situation, sound quite
different.39 In assuring that forces continue as a military that values compliance with the law
of armed conflict, the court-martial must consider particular aspects in balancing evidence or
claims in evaluating the reprisal. Where one recognized the law of belligerent reprisals, then
reprisal exists as a possible defense to allegation of a war crime, especially where committed
against a combatant.35

There are numerous examples of violations of the laws of war committed by enemy forces in
Afghanistan and Iraq since 2001, including murder of non-combatants, indiscriminate targeting,
torture and murder of captured American soldiers. The criminal law must, however, not simply
allow any soldier to cite to general illegal acts by the enemy to justify his conduct, but must
show some connection to that soldiers service or experience. This causal proximity may be part
of the calculus that supports a soldiers decision to reprise, and the soldier must know his
decision-making may be subject to scrutiny by a criminal court after the fact. The causal
proximity could be a function of time (e.g., a notorious event close in time to the act of the

35 Darcy, Collective Responsibility and Accountability Under International Law, 169.

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accused), location (e.g., known criminal acts in or emanating from a specific village or
community), method (e.g., a truck bomb technique prevalent or popular), or unit (e.g., the
soldiers team, squad, platoon or company suffering casualties). Any of these bases are examples
that might establish a soldiers proximity to an enemy illegal act that a servicemember could
argue satisfies the first prong of a reprisal defense to allegations of criminal conduct. Further, this
causal proximity analysis precludes every act a reprisal.

Evidence on the second element, that a soldier prior to committing reprisal made an effort to
address the wrongdoing short of force, raises issues both of authority to execute reprisal and
authority or method of redress. Although as noted above current Army regulation limits authority
to order reprisal to a commander, the current conflicts warrant pushing this decision to individual
soldier level. Army rules are not specific as to what level of command holds this authority; thus,
advocating lower level responsibility is not antithetical to the current practice. Some argue that
authority for reprisals must reside at high levels in order to limit hasty or ill-conceived reprisals
by subordinate commanders in the heat of the moment, 36 but the court-martial system poses a
check on widespread violations. Individual soldiers can execute reprisal, but they are criminally
culpable if their actions do not fall within the parameters of the doctrine. This position supports
the individual legal responsibility of soldiers to adhere to the laws of war. It also recognizes the
nature of todays conflicts; that is, focus at small unit level and with individual soldiers the
primary executor of tasks and missions, as to former times where focus was on larger unit
formations and movements.

In contrast to requiring causal proximity and individual soldier authority, however, the soldier
defending on the basis of reprisal should not be required himself to redress the earlier wrong
before resort to force. The intent is not to minimize the importance or fail to acknowledge the
requirement to legitimize reprisal, but todays conflicts are with an enemy who has routinely
flouted the laws of armed conflict, and to require redress efforts for each discrete violation makes
reprisal an untenable doctrine. At the same time, one must consider that historically reprisal
without any hope of compelling compliance by the enemy is not lawful reprisal. But the
reckless enemy often leaves his opponent no other means of securing himself against the
repetition of barbarous outrage, and the law should not allow an enemy to rely on unchecked

36 Sutter, The Continuing Role for Belligerent Reprisals, 4.

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violations of its own as a defense to acts done against the enemy. Therefore, although the
effectiveness of reprisal to prevent violations of the law of war must be the objective of the
reprisal, that may be the only means of deterring an adversary from committing violations of the
law of war.37

In the current context, rather than applying conventional doctrine to individual soldier decisions,
the soldiers have freedom to act, but may be held to account for their decisions in a court of law.
The finder of fact must then balance the evidence. There is in the end a gain in that soldiers do
not face a non-compliant enemy without recourse to options to compel the enemy to adhere to
legal standards. American soldiers will not act in the absence of law since their actions are
subject to investigation, examination and accounting in the criminal courts.

Proportionality endures as an element of reprisal in the proposed instruction. Again, however, a


court-martial has flexibility in assessing a proportionate response. As Walzer noted, the kind
and amount of permissibleviolence is that which is reasonably designed so to affect the
enemys expectations about the costs and gains of reiteration or continuation of his initial
criminal act as to induce the termination of and future abstention from such act.44 The court
measures proportionality either to the original violation or to the desired goal, and thus the
reprisal may be more severe in order to deter the offender from future violations. At the same
time, however, courts and military tribunals have exercised close scrutiny over the
proportionality element of reprisal. For example, in the Adreatine Cave massacre in World War
II, Germans claimed their actions against Italian prisoners were a lawful reprisal for the partisan
killings of 33 German soldiers. But the tribunal found the German response was disproportionate
and therefore not a lawful reprisal, insofar as the Germans killed 335 Italian prisoners, including
five generals, 11 other senior officers, 21 junior officers, and six non-commissioned officers. The
German response was disproportionate both in the number killed and status of the victims.38

37 Sutter, The Continuing Role for Belligerent Reprisals, 2.

38 Sutter, The Continuing Role for Belligerent Reprisals, 5.

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The final element of the reprisal affirmative defense is the characteristic that gives credence to
the doctrine. Reprisal is not a practice to facilitate or authorize revenge, and courts-martial will
hold accountable soldiers who seek to justify wanton violence.

Rarely is there direct evidence of intent, but a court deduces intent from myriad factors. This
examination benefits an accused soldier by calling on review of all the circumstances, but with
emphasis on the individual soldier, what he has seen and experienced, and how that has
influenced his actions. The ethical challenge then falls on the court-martial, not loosely to apply
the law to clear a soldier of alleged wrongdoing, but to respect Americans adherence to the laws
of armed conflict. The additive with application of reprisal is the individual soldiers actions are
measured against his current threat and he is credited with authority to execute the war.

Current Legal Situation

1. General Limitations to Reprisals

If reprisals are employed in wartime to coerce the belligerent opponent to abide by the law
of war, there is a risk of enhancing the armed conflict by reprisal and re-reprisal, and there
are many examples in history for excessive belligerent reprisals, for example the unlimited
submarine war in World War I, and the unlimited bombing of cities in World War II. Public
international law should by no means contribute to such developments. Therefore, the
general limitation of proportionality was established, as early as the Naulilaa Arbitration
(Portugal v Germany) in 1928, and has been considered as a rule of customary international
law ever since39This also implies that belligerent reprisals are not generally prohibited if they
are proportionate and consistent with Art. 51 UN Charter. It shall further be noted that the
rule of proportionality also applies to countermeasures in times of peace, as expressed in Art.
51 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Draft
Articles on State Responsibility): Countermeasures must be commensurate with the injury
suffered, taking into account the gravity of the internationally wrongful act and the rights in

39 (see Portugal v Germany [The Naulilaa Case] [Case No 360] [192728] 4 AnnDig
526).

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question. Therefore, in wartime, a minor breach of international law cannot be answered by
measures of massive retaliation. It is also noteworthy that reprisals can never be employed in
an anticipatory or pre-emptive way, but only as a reaction towards a breach of international
law. The taking of reprisals must be duly announced, and only be thought of if other peaceful
means have failed. Further, the action must end if it successfully achieves its aim of coercing
the adversary to stop the breach of international law. As a matter of principle, these
requirements can all be deduced from the limits to countermeasures as laid down in the Draft
Articles on State Responsibility. However, in wartime, urgent countermeasures in the sense
of Art. 52 (2) Draft Articles on State Responsibility are at stake, and in this respect, the
above-mentioned customary norms are applicable outside these rules.

2. Special Limitations to Reprisals

Beyond that, there are special limitations arising from humanitarian law. It is by these
limitations that positive public international law answers the well justified criticisms against
any such law of belligerent reprisals. Starting with the Convention relative to the Treatment
of Prisoners of War and continued in the Geneva Conventions IIV (1949), certain protected
persons and objects are excluded as targets for reprisals, ie reprisals may not be directed
against them. According to Art. 46 Geneva Convention I, reprisals against the wounded and
sick, as well as medical personnel and establishments are strictly prohibited. This is extended
at sea to wounded, sick, and shipwrecked persons by Art. 47 Geneva Convention II
Following Art. 13 (3) Geneva Convention III, the prohibition of reprisals applies to reprisals
against prisoners of war, and Art. 33 (3) Geneva Convention IV prohibits reprisals against
civilians. Consequently, only military forces and few other objects are an admissible target
for reprisals. Protected persons and objects may, however, be negatively affected by collateral
damage. Other important limitations are to be found in Art. 3 (2) Convention on Prohibitions
or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be
Excessively Injurious or to have Indiscriminate Effects: Protocol II: Protocol on Prohibitions
or Restrictions on the Use of Mines, Booby-Traps and Other Devices ([adopted 10 October

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1980, entered into force 2 December 1983] 1342 UNTS 168), and Art. 3 (7) Protocol on
Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as
Amended on 3 May 1996 (Protocol II as amended on 3 May 1996).

A general rule prohibiting reprisals directed against protected persons and their property
failed to be established during the negotiation of the Geneva Conventions Additional
Protocol I (1977) and Geneva Conventions Additional Protocol II (1977). Additional Protocol
I on International Armed Conflicts is limited to an enumeration of persons and objects under
protection: wounded, sick and shipwrecked (Art. 20), and civilians in general (Art. 51 (6)), as
well as civilian objects (Art. 52), cultural objects and places of worship (Art. 53), objects
indispensable to the survival of the civilian population (Art. 54), the natural environment
(Art. 55), and finally works and installations containing dangerous forces (Art. 56).
Additional Protocol II, which governs non-international armed conflicts, does not contain
any specific rule limiting reprisals (Armed Conflict, Non-International). Efforts to achieve
broader protection have failed so far.

3. Special Problems and Significance

The application of special prohibitions of reprisals in modern armed conflicts could be a


problem. Such conflicts are more increasingly internal ones. As it could be seen that Additional
Protocol II, which applies to such non-international armed conflicts, does not contain any
specific rule on reprisals, the scope of protection of the said special prohibitions would be unduly
limited. Nonetheless, the International Criminal Tribunal for the Former Yugoslavia (ICTY)
rightly deduced from Art. 51 (6) Additional Protocol I, which generally prohibits reprisals
against civilians, and Art. 4 (2) (b) Additional Protocol II prohibiting collective punishments, that
the protection of civilians against reprisals was a general rule of customary international law to
be followed in all armed conflicts whatsoever 40. This position, however, does not find overall
acceptance in academic writings 41

40 (Prosecutor v Marti [Trial Chamber Judgment] IT-95-11 [12 June 2007] paras
46468; Prosecutor v Kupreki [Trial Chamber Judgment] IT-95-16 [14 January
2000] paras 51536)

41(see in particular Kalshoven [2003] 496505).

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Furthermore, it is doubtful whether the rules developed for belligerent reprisals would apply in a
conflict involving nuclear weapons. In its Legality of the Threat or Use of Nuclear Weapons 42the
ICJ has also remained reluctant on this point (at para. 46). A general prohibition appears to be the
desirable result, but opinions are divided in this matter, given that some would stress the
deterrent effect of the possession of such weapons, and thus the effect to prevent armed conflicts,
whereas others would underline that even a threat of armed force, let alone of that scale, was
contrary to Art. 2 (4) UN Charter (Use of Force, Prohibition of Threat).

Finally, modern warfare against private belligerents such as terrorist groups is not covered by
the law of reprisals unless violations that have occurred, either inadvertently or with intent, may
be attributed to a certain State (see also Terrorism). It is submitted that the general shift in the
recognition of private actors as subjects of public international law might trigger a future change
in the pertinent rules, which has not yet emerged.

42 (Advisory Opinion) ([1996] ICJ Rep 226),

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Conclusion
The concept of reprisals has a long tradition, but its current significance is reduced due to the rise
of the new concept of countermeasures. In its remaining scope of application, the concept is
affected by core developments of international relations, in particular by the proliferation of non-
international conflicts and the threat emanating from armed terrorist activity. If the traditional
content of the rules limiting and prohibiting reprisals is correctly detected and understood, it can
be developed in a way to cope with the new challenges.

The law of armed conflict has long recognized the doctrine of reprisal, enabling forces to
respond to an enemy who violates the law of armed conflict during fighting. In todays conflicts
in Afghanistan and Iraq, American soldiers have faced an enemy who routinely violates the law
of war, and soldiers have been held to account in the criminal courts for their actions sometimes
in response to the enemy. The United States armed forces should embrace the doctrine of reprisal
in its military law in order to allow soldiers to place their actions in the context of the fight they
wage daily. In some instances, these soldiers have acted properly in executing reprisals, and they
actions should not be colored as criminal, notwithstanding that the actions themselves are illegal.
Although todays enemy is persistent in committing law of war violations, soldiers must be
allowed to respond and defend their actions using the long-standing doctrine of reprisal.

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Bibliography
BOOKS

S Oeter Methods and Means of Combat in D Fleck (ed) Handbook of Humanitarian


Law in Armed Conflicts (OUP Oxford 1995) 105207.

J Crawford The International Law Commissions Articles on State Responsibility:


Introduction, Text and Commentaries (CUP Cambridge 2002).

F Kalshoven Reprisals and the Protection of Civilians: Two Recent Decisions of the
Yugoslavia Tribunal in LC Vohrah and others (eds) Mans Inhumanity to Man: Essays on
International Law in Honour of Antonio Cassese (Kluwer The Hague 2003) 481509.

M Schrder Verantwortlichkeit, Vlkerstrafrecht, Streitbeilegung und Sanktionen in


W Graf Vitzthum and A Proelss (eds) Vlkerrecht (6th edn 2013) Section 7 paras 115
118.

J Crawford State Responsibility: The General Part (CUP Cambridge 2014) 684706.

Documents

Convention relative to the Treatment of Prisoners of War (signed 27 July 1929, entered
into force 19 June 1931) 118 LNTS 343.

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950)
75 UNTS 31 (Geneva Convention I).

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into
force 21 October 1950) 75 UNTS 85 (Geneva Convention II).

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Geneva Convention relative to the Protection of Civilian Persons in Time of War
(adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Geneva
Convention IV).

Geneva Convention relative to the Treatment of Prisoners of War (adopted 12 August


1949, entered into force 21 October 1950) 75 UNTS 135 (Geneva Convention III).

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