Deterrence Without Retribution
When the British imposed their blockade of Germany in 1916, they called it a reprisal; when the Germans began the systematic bombing of London in 1940, they defended themselves in the same way. No part of the war convention is so open to abuse, is so openly abused, as the doctrine of reprisals. For the doctrine is, or once was thought to be, permissive with regard to all the rest of the convention. It legitimates actions otherwise criminal, if these actions are undertaken in response to crimes previously committed by the enemy. “Reprisals,” writes a pacifist critic of the rules of war, “mean doing what you think wrong on the plea that someone else did it first.”1 And, he goes on, someone else will always do it first. Hence reprisals create a chain of wrongdoing at the end of which every responsible actor can point to some other actor and say “tu quoque.”
It is the explicit purpose of reprisals, however, to break off the chain, to stop the wrongdoing here, with this final act. Sometimes—though it has to be said, not often—that purpose is realized. I want to begin with a case in which it was realized, so that we can at least make sense of what was for many years the conventional opinion—as stated, for example, by a nineteenth-century French lawyer: “Reprisals are a means of preventing war from becoming entirely barbarous.”2
In the summer of 1944, much of France was a battleground. Allied armies were fighting in Normandy; partisan groups, organized now into the French Forces of the Interior and in touch with both the Allies and the Gaullist Provisional Government in Algeria, operated on a large scale in many parts of the country. They wore insignias of battle; they bore their arms openly. It is clear that the 1940 armistice had effectively been voided, and the military struggle resumed. Nevertheless, the German authorities continued to treat captured partisans as war traitors or war rebels, subject to summary execution. On the day after the Allied landings, for example, fifteen partisans captured at Caen were immediately shot.3 And the executions continued, as the pace of the fighting increased, during the next months. The FFI complained of these executions to the Provisional Government, which in turn sent a formal protest to the Germans. Since they did not recognize the Government, the Germans refused to accept the protest. In their note, the French had threatened reprisals against German prisoners. The continued killing did not, however, elicit any such response—perhaps because troops directly subject to the Provisional Government, recruited outside occupied France, were regularly accorded prisoner-of-war status by the Germans.
In August 1944, large numbers of German soldiers in Southern France began surrendering to partisan groups, and the FFI leadership was suddenly in a position to carry out the Government’s threat. “When . . . it became known that the Germans . . . had executed 80 French prisoners, and that further executions were imminent, the FFI command at Annecy decided that 80 of the prisoners in [its] hands would in turn be shot.”4 At this point, the Red Cross intervened, won a postponement of the executions, and sought from the Germans an agreement henceforth to treat captured partisans as prisoners of war. The partisans waited six days and then, the Germans not replying, the 80 prisoners were shot.a The effects of the reprisal are not easy to make out, for the German army was hard-pressed, and many other factors must have figured in its decisions. It is apparently true, however, that no partisans were executed after the Annecy shootings.
Now in one sense, this case is easy to judge: the Geneva Convention of 1929, which the French had signed and the FFI itself reaffirmed, explicitly barred reprisals against prisoners of war.5 No other group of innocent men and women was granted a similar immunity; prisoners were singled out because of the contract implied by surrender, in which they are promised life and benevolent quarantine. Killing them would be a breach of faith as well as a violation of the positive laws of war. But I shall not focus on this exception to the general rule of reprisals, for it does not open up the larger question, whether the deliberate killing of innocent men and women should ever be declared lawful or morally justified. And I doubt very much that we will want to say, in answer to that question, that some innocent people can be killed and others not. The case of the FFI prisoners is useful because it provides a classic example of reprisal, and one in which our sympathies are likely to be engaged, at least initially, on the side of the “reprisers.”
Reprisals of this sort have as their purpose the enforcement of the war convention. In international society, as in Locke’s state of nature, every individual member (every belligerent power) claims the right to enforce the law. The content of this right is the same as it is in domestic society: it is first of all a right of retribution, to punish guilty men and women; it is secondly a right of deterrence, to protect oneself and others against criminal activity. In domestic society, these two most often go together. Criminal activity is deterred by punishing or threatening to punish guilty individuals. That, at least, is the commonly accepted doctrine. In international society, however, and especially in wartime, the two rights are not equally enforceable. It is often impossible to get at guilty individuals, but it’s always possible to prevent or try to prevent further criminal activity by responding in kind as the French partisans did, that is, by “punishing” innocent people. The result might be described as a one-sided sort of law enforcement: deterrence without retribution.
It might also be described as a prime example of radical utilitarianism—indeed, of a utilitarianism so radical that utilitarian philosophers have been concerned to deny its existence. Yet it is common enough in the theory as well as in the practice of war. One of the criticisms most frequently leveled against utilitarianism is that its calculations would under certain circumstances require the authorities to “punish” an innocent person (to kill or imprison him, under cover of punishment). The usual response has been to adjust the calculations so that they yield different and more conventionally acceptable results.6 But in the history of international law and in debates over wartime behavior, the effort at adjustment has mostly been foregone. Reprisals have been defended, with admirable directness, on strictly utilitarian grounds. Under the special conditions of combat, at least, utilitarian calculations have indeed required the “punishing” of innocent people. The political or military leaders of belligerent powers have commonly invoked the requirement, claiming that no other means were available to check the criminal excesses of their opponents. And detached observers, students of the law, and venerable doctors have generally accepted this as a possible argument “in extreme cases” (the cases, of course, are often disputed). Hence it is a “principle of war law,” according to a leading authority: “For every offense punish someone; the guilty, if possible, but someone.”7
This is not an attractive principle, and it would not be accurate to explain the traditional acceptance of reprisals by reference to it alone. In wartime, after all, innocent people are often attacked and killed in the name of utility, in order, it is said, to shorten the war, save lives, and so on. But such attacks don’t have the same status as reprisals. It is not their utility, assuming now that they are in fact useful, that makes reprisals different, but some other quality. This quality is misunderstood, I think, by those writers who describe reprisal as the most primitive feature of the war convention, a survival of the ancient lex talionis.8 For the talion is a return of evil for evil, and what is crucial about reprisal is precisely that evil, though it may be repeated, is not returned. The new crime has a new victim, who is not the original criminal though he probably has the same nationality. The particular choice is (so far as utility goes) quite impersonal; in this sense, reprisal is chillingly modern. Something, however, of the talion survives: not the idea of return, but the idea of response. Reprisal is characterized by a certain posture of looking back, acting after, which implies a willingness not to act at all, to abide by some set of restraints. “They did it first.” This sentence carries a moral argument. I do not believe that it is a very strong argument or one that will take us far. But it serves to mark off reprisal from other, equally useful violations of the war convention. There is no right to commit crimes in order to shorten a war, but there is a right, so it was once thought, to commit crimes (or rather, acts that would otherwise be called crimes) in order to cope with the previous criminal activity of one’s enemies.
The backward-looking character of reprisals is confirmed by the rule of proportionality that restrains them. The rule is quite different and far more precise than that which figures, for example, in the doctrine of double effect. The partisan commanders at Annecy acted in strict accordance with its provisions when they decided to kill 80 Germans in response to the killing of 80 Frenchmen. Reprisals are limited with reference to previous crimes, not with reference to the crimes they are designed to deter (not with reference to their effects or their hoped-for effects). This point has sometimes been disputed by writers committed to utilitarian modes of thought. Thus McDougal and Feliciano argue, in characteristic style, “that the kind and amount of permissible . . . violence is that which is reasonably designed so to affect the enemy’s 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.”9 They admit that the amount of violence, so determined, may be greater than that originally inflicted by the enemy. In the Annecy case, it might well have been less: the shooting of 40 Germans, or 20, or 10, might have had the same effect as the shooting of 80. But however the calculations work out, this kind of forward-looking proportionality has never been accepted either by the general run of theorists writing about war or by ordinary practitioners. During World War II, to be sure, the Germans often responded to partisan activity in the occupied states of Europe by shooting ten hostages for every German killed.10 This proportion may have reflected a peculiar notion about the relative value of German lives, or it may have been “reasonably designed so to affect the enemy’s expectations, etc.” In any case, the practice was universally condemned.
It was condemned, of course, not only because of the actual disproportion involved, but also because the previous partisan activity was in many cases not thought to violate the war convention. Hence the German response was simply utilitarian deterrence, not law enforcement. It is another feature of the backward-looking character of reprisals that the acts to which they respond must be crimes, violations of the recognized rules of war. Moreover, the rules must be commonly recognized, on both sides of the battleline, if the special character of reprisals is to be maintained. When the British army resorted to reprisals during the War of 1812, an opposition member of the House of Commons, who thought such conduct barbarous, asked why His Majesty’s soldiers didn’t scalp their captives when they fought with the American Indians or enslave them in their wars with the Barbary corsairs.11 I suppose the answer is that scalping and enslavement were not thought illegitimate by the Indians and the corsairs. And so the imitation of these practices by the British would not have been understood as law enforcement (nor would it have had any deterrent effect); it would only have confirmed their enemies’ notions of appropriate wartime behavior. Reprisals may involve deterrence without retribution, but this must nevertheless be a reactive deterrence, and what it reacts to is a violation of the war convention. If there is no convention, there can be no reprisal.
At the same time, we are uneasy about reprisals precisely because there is a convention, and one that categorically rules out the acts that reprisal usually requires. If it is wrong, and for the deepest reasons, to kill innocent people, how can it be right to kill them? In treatises on international law, the defense of reprisal is always qualified, first by a great show of reluctance and anxiety, and secondly by some words about the extremity of the case.12 It is not easy to know what this last qualification means, however, and it appears in fact that any violation of the rules is sufficiently “extreme” to justify a proportionate response. Backward-looking proportionality is a genuine limit: it would have barred, for example, the two so-called reprisals with which I began this chapter. But extremity is not a limit at all. It is certainly not true that reprisals are undertaken only when the enemy’s crimes pose a drastic danger to the war effort as a whole or to the cause for which the war is being fought. For the purpose of reprisal is not to win the war or prevent the defeat of the cause, but simply to enforce the rules. Perhaps the meaning of the appeal to extremity is like that of the show of reluctance: both suggest a view of reprisal as a last resort. In practice, again, the only action required before one reaches this last resort is a formal protest, such as the French delivered to the Germans in 1944, and a threat to respond in kind if this or that criminal activity is continued. But one might require much more than that, both in the way of law enforcement and in the way of military action. The FFI might, for example, have announced that they would treat German soldiers involved in the execution of captured partisans as war criminals; they might even have begun to publish the names of those who would be accused. Given the military situation of the German army in 1944, such an announcement could well have had a significant effect. Or the partisans might have attempted to raid the prisons or camps where their comrades were being held. Such raids were not impossible, though they would have involved risks entirely absent when one shoots down captured soldiers.
If the notion of last resort were taken seriously, it would limit reprisal in a radical way. But suppose that the partisans had issued the announcement and undertaken the raids without stopping the German executions. Would they then have been justified in shooting their prisoners? “A reckless enemy often leaves his opponent no other means of securing himself against the repetition of barbarous outrage.”13 But the truth is that there are always other means, more or less dangerous, more or less effective. To argue against the executions isn’t to deny the partisans a last resort. It is only to say, for example, that military raids are their last resort. If the raids fail, they can only be tried again; there is nothing more to be done. (Reprisals might fail, too—they usually do—and what comes after that?) This is the conclusion that I want to defend, and I will defend it, once again, by reflecting on the status and character of the German prisoners.
Who are these men? Once they were soldiers; now they are disarmed and helpless. Perhaps some of them are war criminals; perhaps some of them were involved in the murder of captured partisans. Then, surely, they should be put on trial, not shot out of hand. We will want to hear the evidence against them and make sure that we punish the right ones. Only a trial can signal our own commitment to the rules of war. But here, let us assume, are ordinary prisoners who neither made nor carried out criminal decisions. Their day-to-day activities were very much like those of their enemies. How can they be shot out of hand, treated more cruelly than we would treat suspected criminals? It seems incredible that some number of them should be arbitrarily separated from the rest and then killed, simply so that we can announce their deaths, and all this for the sake of justice! Killing them would be murder: the name is exact, no matter what crimes we hope to avoid by becoming murderers. For these men are not mere material out of whose lives we can fashion a deterrent strategy. Even as prisoners, or precisely as prisoners, they have rights against us.
The current thrust of international law is to condemn reprisals against innocent people, and for essentially the reasons that I have suggested: the helplessness of the victims rules them out as objects of military attack, and their noninvolvement in criminal activity rules them out as objects of retributive violence. The Geneva Convention of 1929, as we have seen, declared prisoners immune; the 1949 Conventions did the same for wounded, sick, and shipwrecked members of the armed forces and for civilian persons in occupied territory.14 This last provision effectively bars the killing of hostages, the paradigm case of using innocent people for one’s own military purposes. The only class of disengaged men and women against whom reprisals are still legally defensible is the civilian population of the enemy country. Its members can still be held hostage, though only at a distance, for the good behavior of their government and army. It has been argued that this way of judging reprisals is a logical extension of the general principle “that persons whose usefulness as bases of enemy power is precluded . . . by belligerent control or capture cease to be legitimate objects of violence.”15 But this is to misstate the general principle. It would allow not only reprisals but also first strikes against enemy civilians. However peaceful their pursuits, after all, these civilians remain a “significant base of enemy power,” providing political and economic support to the armed forces. Even children are not “precluded” from serving that power: they will grow up to be soldiers, munitions workers, and so on. Yet such people are protected by the war convention; they are admitted, along with prisoners and wounded soldiers, to the class of the innocent. The underlying purpose of recent developments in the law is not to extend a general principle, which is already (in principle) fully extended, but to prohibit its violation in the special circumstances once thought to justify reprisals. And if there are good reasons for doing that, there would seem to be no good reasons for drawing the line as it has currently been drawn.b
So the necessary judgment is readily summed up: we must condemn all reprisals against innocent people, whether these people are “subject to belligerent control” or not. This is to set radical limits to a practice that once was commonly defended, and not with casual or inconsequential arguments. But I don’t want to claim that those old arguments have no force at all. They correctly point to a certain moral difference between the initial crime and the reprisal-response. From a position of great detachment, these two may seem to constitute a vicious circle—and a circle fully accounted for by the pious maxim that “violence breeds violence.” The maxim, however, is sometimes wrong and, what is more important, it fails to distinguish violence that is responsive and restrained from violence that is neither. Stand beside the French commanders at Annecy and the circle looks different. German guilt in this case is greater than that of the French, because the Germans acted first, breaking the conventional rules for some military advantage; the French reacted, repeating the violations for the declared purpose of re-establishing the rules. I don’t know how to measure the difference between them; perhaps it isn’t great; but it is worth stressing that there is a difference, even as we give their crimes a common name.
With regard to the most important of the rules of war, the violation of the rules for the sake of law enforcement is ruled out. The doctrine of reprisal, then, refers only to the lesser parts of the war convention, where the rights of the innocent are not at stake. Consider, for example, the ban on the use of poison gas. Winston Churchill was entirely justified when he warned the German government, early in World War II, that the use of gas by its armies would bring an immediate Allied reprisal.16 For soldiers have only a war right, and no more basic right, to be attacked with certain weapons and not with others. The rule about poison gas is legally established, but it is not morally required. Hence, when it is violated, parallel and proportionate violations, narrowly aimed at re-establishing the rule and at no larger military purpose, are morally permissible. They are permissible because the people against whom they are directed are already the legitimate objects of military attack. The case is the same with all those informal agreements and reciprocal arrangements that limit the extent and intensity of warfare. Here the threat of reprisal is the major means of enforcement, and there is no reason to hesitate about making the threat or carrying it out. It might be argued that when restraints of this sort are violated, they simply disappear, and then there is no reason to limit one’s own violations by attending to the proportionality rule. But that is true only if reprisal fails to restore the old limits. One must aim first at restoration: in that sense, we still use reprisals as a bar to the barbarism of war.
The Problem of Peacetime Reprisals
But all this assumes that warfare of the ordinary sort is already in progress. What is at issue is the mode or means of attack. In the case of peacetime reprisals, what is at issue is the attack itself. It has come from across the border: a raid of one sort or another. The victim state responds with a second raid, which isn’t aimed at re-affirming the rules of war but at re-establishing the broken peace. The crime that is repeated is the act of force, the violation of sovereignty. It will be called aggression and justified as self-defense—talked about, that is, in the language of jus ad bellum—but it remains a “military measure short of war” as long as the restraints appropriate to reprisals, established by the theory of jus in bello, are maintained. And so it is best discussed here, with reference to those restraints.17
The Attack on Khibye and the Beirut Raid
The term “peacetime reprisals” is not entirely accurate. The legal handbooks divide their subject into “war” and “peace,” but much of history is a demi-monde that neither word adequately describes. It is to this demi-monde that reprisals most commonly pertain; they are a form of action appropriate to periods of insurgency, border strife, cease-fire, and armistice. Now it is a feature of such periods that acts of force are not always acts of state in any simple sense. They are not the work of recognized officials and of soldiers acting on official orders, but (often) of guerrilla bands and terrorist organizations—tolerated, perhaps patronized by the officials, but not directly subject to their control. Thus Israel, since its founding in 1948, has repeatedly been attacked by Palestinian guerrillas and terrorists operating out of the neighboring Arab states but not formally affiliated with their armies. In response to these attacks, the Israeli authorities have tried over the years virtually every conceivable form of counter-attack—testing out, as it were, the politics and morality of reprisal. It is a grim and unusual history, providing the theorist with all the examples he could want (and more). And if it doesn’t suggest that peacetime reprisals make for peace, it also doesn’t point to any alternative response to illegitimate attacks.
Most of the Palestinian raids have been the work of terrorists, not guerrillas; that is, following the argument of the last two chapters, they have been directed randomly against civilian targets: against farmers working near the border, buses on country roads, village schools and houses, and so on. Hence there is no question about their illegitimacy, whatever one thinks of the larger Arab-Israeli conflict. Nor can there be any question that the Israelis have a right to respond in some way. The right exists in the case of any across-the-border raid, but it is especially clear when the raid is aimed at civilians, who can offer no immediate resistance. Nevertheless, particular Israeli responses have indeed been questionable, for it is a hard matter to know what to do in such cases. Terrorists harbored by neighboring states with which one is not openly at war do not provide an easy target. Any military response will be marked by a kind of asymmetry characteristic of peacetime reprisal: the initial foray is unofficial; the counter-attack is the act of a sovereign state, challenging the sovereignty of another state. How do we judge such challenges? What are the rules that govern peacetime reprisals?
The first rule is a familiar one. Though the terrorist raid is aimed at civilians, the reprisal must not be so aimed. Moreover, the “reprisers” must take care that civilians are not the incidental victims of their attack. With regard to its conduct, peacetime reprisal is exactly like war itself, and so certain of our judgments are obvious enough. Consider, for example, the Israeli raid on Khibye:18
Following the killing of a woman and her two children in a village near Lod Airport, the Israelis launched a night attack against the Jordanian village of Khibye on 14 October 1953. . . . [They] fought their way into the village, rounded up the inhabitants, and blew up forty-five houses. Not all the houses were cleared beforehand, and more than forty villagers were buried under the rubble. . . . The brutality of the raid led to sharp protests in Israel and abroad. . . .
These killings probably cannot be called “unintended,” and it certainly cannot be said that due care was taken to avoid them; so the protests were justified; the killings were criminal. But what if no civilians had died, or, as in most on-the-ground Israeli reprisals, only a small number, killed in the course of a firefight with Jordanian regulars? What are we to say of the raid itself, of the Jordanian soldiers killed in its course (who had no part in the murder of Israeli civilians), of the houses destroyed? This is not a standard military operation, though it is the most common form of peacetime reprisal. Its purpose is coercive: to force the officials of a neighboring state to keep the peace and to repress guerrillas and terrorists on their own side of the border. But it is not directly or continuously coercive; otherwise it would require a full-scale invasion. Reprisals have the form of a warning: if our villages are attacked, yours will also be attacked. Hence they must always respond to previous raids. And they are governed, after the rule of noncombatant immunity, by the rule of backward-looking proportionality. Though life cannot be balanced against life, the second raid must be similar in character and scope to the first.
I am inclined to defend counter-attacks of this sort, when these two restraints are accepted. The defense, I should stress, doesn’t depend in any way upon the notions of extremity or last resort. In peacetime, war is the last resort (and a long series of terrorist raids might justify a war, if no other means seemed likely to end the series). Reprisal is a first resort to force, once diplomacy has proven ineffective. It is, again, a “military measure short of war,” an alternative to war, and that description is an important argument in its favor. But the general argument remains a difficult one, as we can see if we turn to another historical example, where (in contrast to Khibye) the rules of immunity and proportionality were scrupulously respected.
In 1968, the focus of Palestinian terrorism shifted from Israel itself to the Israeli national airline and its passengers. On December 26 of that year, two terrorists attacked an Israeli plane preparing for takeoff at Athens Airport.19 Some 50 people were aboard at the time and, although only one was killed, it was clearly the purpose of the terrorists to kill as many as possible. They aimed their guns at the windows of the plane, at seat level. The two men were captured by Athenian police, and it was discovered that they were members of the Popular Front for the Liberation of Palestine, an organization with headquarters in Beirut. They were traveling on Lebanese documents. Repeatedly over the previous months, Israel had warned the Lebanese government that it could not “escape responsibility” for its support of groups like the PFLP. Now the Israelis undertook a dramatic reprisal.
Two days after the Athens attack, Israeli commandos landed by helicopter at Beirut Airport and destroyed 13 planes belonging to civilian airlines licensed in Lebanon. According to an Israeli news release, the commandos “at great risk to themselves . . . exercised the strictest precautions to prevent civilian casualties. The planes were emptied of passengers and ground crews, and people in the vicinity were led away to safety.” Whatever the extent of the risks involved, no one was killed; Lebanese authorities later claimed that two Israeli soldiers were wounded during the attack. From a military point of view, the raid was a spectacular success—and, I think, from a moral point of view too. It was clearly responsive to the incident at Athens; it was parallel and proportionate in its means (for one can destroy a great deal of property in answer to the destruction of human life); and it was carried out so as to avoid civilian deaths.
Despite all this, the Beirut raid was much criticized at the time (and condemned at the UN)—above all, because of the seriousness of the attack upon Lebanese sovereignty. It is the attack upon Jordanian sovereignty that would stand out in the Khibye case, too, had civilian lives been spared. The killing of civilians is an affront to humanity, but attacks on military installations and the destruction of civilian property pose a more narrow and direct challenge to the state. Indeed, that is the purpose of the attacks; and the vulnerability of soldiers, on the one hand, and of airplanes, boats, buildings, and so on, on the other, hangs on the vulnerability of the sovereign state. Soldiers are vulnerable, if the state is, because they are the visible symbols and the active agents of its authority. And civilian property is vulnerable because the innocence of its owners extends only to their persons, not (or not necessarily) to their possessions. The value we attach to human life is such that rights to life are forfeit only when particular men and women are actually engaged in war-making or national defense. But the lesser value of property is such that property rights are forfeit whenever the state that protects property, and taxes it, is itself subject to attack. Individuals can be taxed without becoming legitimate targets, but property, or certain sorts of property, may be a legitimate target even if its owners are not.c But this argument hangs on the liability of the state, and that remains a matter of dispute.
The Israeli argument followed the pattern of positive law (or at least of positive law before the era of the UN). Israel insisted that the Lebanese government had an obligation to prevent the use of its territory as a base for terrorist raids. No one seems to deny the reality of the obligation, but it was argued on behalf of the Lebanese (though not by them) that the government in Beirut was in fact incapable of honoring it. Events since 1968 may seem to have borne out that claim, and if it is right, the Israeli attack would be difficult to defend. It is surely wrong to destroy the property of innocent people so as to bring pressure on other people who are in any case unable to act differently from the way they are acting. But one should never be too quick to deny the competence of an established government, for a certain loss of sovereignty is the legal and moral result of political powerlessness. If a government literally cannot control the inhabitants of the territory over which it supposedly presides, or police its borders, and if other countries suffer because of this incapacity, then surrogate controlling and policing are clearly permissible. And these may well go beyond the limits commonly accepted for reprisal raids. At this point, reprisal is like retributive punishment in domestic society: as punishment assumes moral agency, so reprisal assumes political responsibility. Both assumptions are worth holding onto, for as long as possible.
The critical question is whether one sovereign state can be forced by another to fulfill its obligations. It is the official position of the UN that this kind of law enforcement, even when it is restrained by the rules of war, is illegal.20 This position rests not only on the general claim of the UN to declare the (positive) law, but also on its readiness and ability, at least some of the time, to enforce the law itself. But the world organization was clearly not ready or able to enforce the law in 1968; nor has it been ready or able to do so at any time since. Nor is there any evidence that individual members of the UN, however they vote on ritual occasions, are prepared to renounce reprisals when the lives of their own citizens are at stake. Reprisals are clearly sanctioned by the practice of nations, and the (moral) reason behind the practice seems as strong as ever. Nothing the UN has actually done, no effects it can presently have, suggests a centralization of legal or moral authority in international life.d
But the sheer unreality of the UN position doesn’t by itself establish the legitimacy of peacetime reprisals. In his edition of Kelsen’s Principles of International Law, Robert Tucker has insisted that anyone defending reprisals must show “that more often than not the independent use of force by states has served the purposes of law. . . .”21 This is to shift the ground from the effectiveness of the UN to the utility of reprisal itself and to invite a historical examination the results of which are not likely to favor the “reprisers” in any decisive way. But the ground of reprisal is not its overall effectiveness. It is the right, in the difficult conditions of the demi-monde, to seek certain effects. So long as the conditions exist, the right must also exist, even if those same conditions (as in Locke’s state of nature) make it unlikely that rightful action will have entirely satisfactory consequences. If, in a particular case, reprisal is certain to fail, then obviously it should not be tried. But whenever there is some substantial chance of success, it is the legitimate resort of a victim state; for no state can be required passively to endure attacks upon its citizens.
Reprisal is a practice carried over from the war convention to the world of “peacetime,” because it provides an appropriately limited form of military action. It is better, I think, to defend the limits than to try to abolish the practice. Soldiers engaged in a reprisal raid will cross over an international boundary, but they will quickly cross back; they will act destructively, but only up to a point; they will violate sovereignty, but they will also respect it. And finally, they will attend to the rights of innocent people. Reprisals are always limited responses to particular transgressions: crimes against the rules of war, small-scale breaches of the peace. Though they have often been used, they cannot rightly be used, as a cover for invasions or interventions or assaults upon innocent life. It may be that there are moments of extremity and crisis when state’s rights and human rights have to be violated; but such moments are not generated by the particular crimes of our enemies, and the violations are not usefully called reprisals. None of the cases of reprisal that I have come across in the lawbooks and the military histories are extreme cases in any meaningful sense of that term. Nor does the war convention provide for extreme cases. Extremity lies, so to speak, beyond the reach of conventional provision. I will consider its character and provenance in Part Four of this book. The analysis of reprisals concludes the discussion of the ordinary means of war. I must turn now to those extraordinary means that the moral urgency of our ends seems sometimes to require.