Crime and Collective Punishment

Yesterday saw an escalation of fatalities in Gaza, with 87 Palestinians and 13 Israeli soldiers reported killed in one day. As of 7:00am today, the number of Palestinian civilian fatalities since Operation Protective Edge began on 7 July 2014 was 406, including 129 children. Two Israeli civilians have been killed. Operation Protective Edge is the second extensive Israeli military action to be launched within the last month, the first being Operation Brother’s Keeper which began on 12 June 2014.

Palestinian civilians have been enormously affected by both military operations. The impact is particularly devastating on the densely populated civilian population in Gaza. In addition to a daily increase in fatalities, 2,803 people have been injured, of whom 822 are children. The number of houses destroyed is 425, with hundreds further that are severely damaged. The Red Cross reports that the water supply is dangerously low following Israeli bombings of the water infrastructure, ¹ while doctors warn of a shortage of medical supplies.

Meanwhile, Operation Brother’s Keeper in the West Bank has seen widespread human rights violations² including mass arrests of civilians without charge; excessive violence against civilians resulting in seven fatalities caused by the Israeli military’s use of live ammunition; severe movement restrictions; the use of administrative detention against 77 Palestinians (who are detained without charge, trial or knowledge of the evidence relied upon for their detention); and over 1,000 home raids. The UN’s Office for Coordination of Humanitarian Affairs (OCHA) reports that two children were injured when the Israeli army used explosives to enter a home.³ Furthermore, the family homes of the two individuals whom Israeli suspects of killing three Israeli teenagers were demolished.

Given the destructive impact upon Palestinian civilian life of Israel’s ongoing military operations, many human rights organisations – including LPHR – have expressed serious concerns as to whether the government of Israel is engaging in an act of ‘collective punishment’ against the Palestinian civilian population. This specific term is not employed as a rhetorical device. Rather, ‘collective punishment’ has a significant and precise meaning under international law, with very important consequences.

What is collective punishment under international law?

Collective punishment can be defined as the use of penalties against civilians for offences that they have not personally committed.

A recent article in the Journal of International Criminal Justice provides a useful explanation of the way this is often seen in practice:

“unable to locate insurgents responsible for hostile acts, invading armies and occupying powers have used collective punishments in the hope of curbing attacks and ensuring obedience, although the stated aim of deterrence has at times served as a mere cloak for oppression and subjugation.”⁴

The UN reports that 77% of fatalities in Gaza so far have been civilians. Several of the international law violations set out above (including the destruction of private property, the bombing of water infrastructure and the deaths of children) illustrate the use of military action that will inevitably affect individuals who have not committed any offences.

Is collective punishment a violation of international law?

In short: yes.

As Israel is an occupying power in Palestine, its actions are governed by international humanitarian law under the Fourth Geneva Convention (to which Israel is a signatory). Article 33 expressly prohibits collective punishment against civilians (or ‘protected persons’):

“No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited.” ⁵

It is worth noting the wide definition of collective punishment, to include “penalties of any kind inflicted on persons or entire groups of persons.”⁶

Commentary to the Geneva Convention explains this prohibition. Firstly, the idea of individual responsibility for criminal acts is a fundamental principle of domestic law. For example, it would be considered nonsensical for one citizen to be punished for the acts of another in a domestic context. Secondly, the idea of collective punishment fundamentally undermines the rule of law in striking: “at guilty and innocent alike.” Natural justice is nullified when the innocent are knowingly punished for the crimes of others. For these reasons, the international community has ruled that such action is “opposed to all principles based on humanity and justice.”⁷

Is collective punishment a war crime?

If collective punishment is a war crime, recent incidents could serve as further incentive for Palestine to seek redress from the International Criminal Court (ICC). Indeed on 8 May this year, 17 Palestinian and international human rights groups wrote to President Abbas urging Palestine to seek access to the ICC.⁸ Little did they know the extent to which human rights violations in the Occupied Palestinian Territory would increase in the upcoming months.

While collective punishment is expressly prohibited under international humanitarian law, its status as a war crime – i.e. a criminal act for which individuals can be held responsible at the ICC – is less certain. This is because “none of the treaties actually stipulate that violation of the provisions on collective punishment amounts to a crime under international law.”⁹

This issue was addressed at the Nuremberg Trials. There it was held, in relation to provisions in the Fourth Geneva Convention (including collective punishment), “That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument.”¹⁰ The UN affirmed the principles of the Nuremberg Judgment in 1946.¹¹

The Nuremberg Judgment therefore serves as an effective basis for the existence of collective punishment as a war crime under customary rather than statutory law. More recently, the status of collective punishment as a crime under customary law has been strengthened by the Special Court for Sierra Leone, who “demonstrated the customary basis and rationale of such an offence”¹² by convicting individuals for the war crime of collective punishment. Academics are now calling for the inclusion of collective punishment as a war crime in the Rome Statute of the ICC.¹³ Israel’s recent action towards Palestinians may well fortify their case.

The above outline of the meaning of collective punishment under international law underscores why rule of law focused human rights organisations have used this term in relation to Israel’s recent and ongoing large-scale military operations in the Occupied Palestinian Territory. It is not merely a descriptive term for the devastating impact upon the Palestinian civilian population of these military actions, but more fundamentally expresses a grave concern that a serious violation of international law which incurs criminal responsibility is being committed against innocent civilians. It is vital from a principled rule of law and justice perspective that any alleged war crimes are credibly investigated as a necessary step towards securing full legal accountability for any proven unlawful acts.

Alicia Araujo Mendonca – LPHR Executive Committee

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