(iii) No immunity of participant of revolutionary uprising from Kaloch region
No immunity under Article 31 common to the four Geneva Conventions is available for the
participants in terrorist uprising at the instance of the Kaloch Liberal front and other
revolutionary organizations in the instant case, as they did take intentional and active part in the
armed hostilities against the State of Manochistan. Hence, the defence under article 3 of Geneva
Conventions, and this, consequently, absolves the accused persons from charges under Article 8
(2) (c) of the Rome statute.
(iv) Immunity under doctrine of belligerent reprisal2
The accused persons, namely Lucifer Rhina and Jabralter Manoch are immune to any and every
act which they have done in order to safeguard their establishments by deployment of republican
guards.
A belligerent reprisal consists of an action that would otherwise be unlawful but that in
exceptional cases is considered lawful under international law when used as an enforcement
measure in reaction to unlawful acts of an adversary. While there are a lot of States which
prohibit repraisals, there is are cases, and official statements in which the writ of the state has
been that the reprisal must not be inhumane.3 In interpreting the condition that reprisal action
may only be taken as a measure of last resort, when no other possibility is available, States must
take into account the possibility of appealing to other States and international organizations to
help put a stop to the violations. For the purpose of fulfilling the pre-requisites of Belligerent
reprisal against permitted category of persons, there are 5 enumerated elements that need to be
met in order for the same to not be unlawful.
Purpose of reprisal - It must be noted that belligerent reprisal is allowed only in
cases of a prior serious violation of international humanitarian law, and only for
the purpose of inducing the adversary to comply with the law. The same finds
mention in many a military manual. For the purpose of this element, the reprisal
must not be for the purpose of revenge or punishment. In the instant case, the
1
Article 3, common to the four Geneva Conventions of 1949.
2
Rule 145, customary IHL.
3
Kappler case, Military Court of Rome, 20 July 1948.
deployment of republican guards by the Republic of Rhina, under the leadership
of Jabralter Manoch and Lucifer Rhina, was a measure of safeguarding the
commercial establishments of the State of Rhina in the Kaloch region of
Manochistan, where several incidents of riots and fire were being reported.4
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. In its judgment in the Kupreškić 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.5 In the instant case, the
deployment of increased number of republican guards on the part of Republic of
Rhina in the Kaloch region of Manochistan was a meansure of last resort because
previously as well, there had been incidents of killings of civilians and even
republican guards6. Hence, it was a last resort on the part of the State of Rhina to
defend its commercial establishments, along with the safety of its own republican
guards.
Proportionality - Reprisal action must be proportionate to the violation it aims to
stop. The International Criminal Tribunal for the former Yugoslavia in its
judgment in the Kupreškić 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. In the instant case, the
increased number of republican guards deployed in Kaloch region for the
protection of GROW establishments was proportional to the incident of fires and
riots that were taking place in the region.
Decision at the highest level of Governemnt - The decision to resort to reprisals
must be taken at the highest level of government. In its judgment in
the Kupreškić case in 2000, the International Criminal Tribunal for the former
4
Para 10, moot proposition.
5
Prosecutor v. Kupreskic et al. (Trial Judgement), IT-95-16-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 14 January 2000
6
Para 6, moot proposition
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. In
the instant case, the decision of deployment of increased number of guards in
Kaloch region of Manochistaan was the decision of Jabralter Manoch and Lucifer
Rhina, who were the top leaders of Republic of Rhina.
Termination – Reprisal action must cease as soon as the adversary complies with
the law. n its judgment in the Kupreškić 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. In the instant case, since there is
lack of factual clarity as to when did the threat arising from resistance from the
revolutionary forces of Kaloch region stopped, and facts also have just suggested
deployment of republican guards in the event of threat after John Kaloch’s press
conference speech to show resistance to Kooching Rhina International, it can be
concluded that the deployment was in response to such resistance only.7
7
Para 10, moot proposition.
