Re-Thinking Collective Punishment
by Michael Lame, posted January 19, 2010
Punishing the Gazans
I attended a panel discussion on Gaza at the Brookings Institution last week. The panelists eloquently depicted the suffering of the more than one million Palestinians living in Gaza under the siege-like restrictions imposed by the Israelis and Egyptians.
One of the panelists pointed out that this is a clear-cut case of collective punishment, since all the people of Gaza are adversely affected – not just the Hamas establishment and Islamic Jihad militants. Many varieties of foodstuffs cannot be imported. Building materials for reconstruction are prohibited. Movement of people in and out of the Gaza Strip is severely restricted. Unemployment is rampant, as is malnutrition.
Since collective punishment is widely assumed to be unethical, the Brookings panel members duly condemned the Israelis for imposing the closure and urged the US government to insist that its ally raise the siege.
But that’s not really the end of the story. Let’s ask ourselves: Is collective punishment always wrong? Or should we even entertain this question, given that according to international humanitarian law, i.e., the laws of war, collective punishment is a war crime?
Geneva Conventions
What exactly is “collective punishment”? The term does not appear in the Hague Conventions or in the original Geneva Conventions. Article 33 of the Fourth Geneva Convention, adopted on August 12, 1949, states that:
“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. . . Reprisals against protected persons and their property are prohibited.”
Here we have “punished” in one sentence and “collective penalties” in the next. In 1977, Article 4 of Additional Protocol II to the Geneva Conventions put these words together and specifically prohibited “collective punishments”, though the term was not defined in that document. Note: Neither the United States nor Israel has ratified this protocol, though both are signatories to the 1949 Geneva Conventions.
“Collective punishment” generally refers to taking action against an entire group in response to the behavior of one or more individuals. Moreover, the offending individuals are not necessarily members of the group being punished. Collective punishment, then, consists of penalizing all members of a group, whether innocent or guilty of any hostile act.
The Geneva Conventions’ prohibition on collective punishment is limited in its application to war between countries as well as to people living under occupation. Additional Protocol II specifically concerns civilians in “non-international armed conflicts”, such as an insurrection (or an intifada).
Just as generals are said to always fight the previous war, so human rights activists try to protect people from the horrors experienced in the last armed conflict. The Geneva Conventions were written in the wake of the Second World War, with the particular atrocities of that conflict fresh in the drafters’ minds.
WWII examples of collective punishment and reprisals include the infamous 1942 case of Lidice, a Czech village that was obliterated, its entire adult male population executed, and its women and children sent to concentration camps. All this was in retaliation for the assassination of Reinhard Heydrich, a high-ranking murderous Nazi official. The assassins had no connection to the village.
The designation “collective punishment”, in principle and practice, may be applied more broadly and less lethally than in such WWII examples.
War itself is collective punishment. It adversely affects entire populations, regardless of their political affiliation or personal responsibility for any governmental acts of aggression. And war doesn’t just kill individuals. It kills groups. It kills collectively. Even a just war collectively punishes the innocent along with the guilty.
Is collective punishment ever justified?
Sanctions are collective punishment (though not within the confines of the Geneva Conventions). The world community supported sanctions against South Africa in order to end apartheid. Those sanctions hurt the South African economy, causing a deep recession. As every American knows in today’s difficult economic situation, when the economy suffers, people suffer. South Africans, black and white, were adversely affected by the sanctions and boycotts. But given the great evil that apartheid was considered to be, the world was willing to countenance the economic dislocation caused to the people of South Africa.
Collective punishment can refer to the treatment of an entire population, as in the current siege-like restrictions placed on Gaza, or to an entire country, as in the decades-old Arab boycott or in the new international campaign for boycotts, divestment, and sanctions against Israel. These Middle East examples again raise the question of whether this can be a morally acceptable tactic to use in attempting to change a political actor’s behavior.
One justification for such action is summed up neatly by Shakespeare when Bassanio urges the court in The Merchant of Venice, “To do a great right, do a little wrong…”
Since collective punishment can take many different forms in many different contexts, one can support it or oppose it on a case-by-case basis. For example, some might support collectively punishing an entire community which they consider to be oppressive, such as apartheid-era South Africa or today’s Sudan, while opposing the collective punishment of what they consider oppressed communities, such as the Palestinians.
Even after the 1977 additions, the Geneva Conventions are just that – conventions, political agreements on customs, practices, and usages, rather than definitive moral pronouncements. No matter how much such documents written in The Hague and Geneva might be revered, they are not sacred texts but rather the fallible and mutable work of the human heart and mind. Therefore these documents can be questioned, challenged, disputed, and at times even ignored.
If and when Israelis and Palestinians reach a mutually acceptable agreement, it may or may not conform to UN Security Council resolutions or other sources of international law. The only question that will matter at that point is whether the two sides are willing to live with their agreement.
I suggest that collective punishment should not automatically be ruled out as a justified means of applying pressure, whether inside or outside of the Geneva Convention parameters. Before employing it, one must examine several factors: the legitimacy of the purpose; the particular form employed, the severity of the effect, the length of the application, and the likelihood of success.
If an instance of collective punishment is justifiable, then it ought to be possible to publically communicate that in a persuasive fashion. If no one can clearly articulate why collective punishment is being applied and what the intended result is, then chances are it is indefensible. In this particular case the burden is on Israel to show convincingly why the restrictions on Gaza exist and how long they will continue.
Ending the Gazan stalemate
A way must be found to normalize life for the Gazans, without further endangering the Israelis. In this case, both sides want something they don’t currently have.
Israelis want Gilad Shalit returned. They want the risk of future rocket attacks reduced, if not eliminated. And they want a Gazan interlocutor willing to accept Israel.
Gazans want the economic and travel restrictions permanently lifted, a chance to rebuild from the damage done a year ago in Operation Cast Lead, the release of Palestinian prisoners from Israeli jails, an open passageway to the West Bank, the world’s acceptance of the political leaders they choose, and independence.
Regardless of the Geneva Conventions, neither side is likely to alter its behavior without at least some of its wants being met. If George Mitchell can help the Palestinians and Israelis mutually achieve some of their goals regarding Gaza, then this awful stalemate may come to an end. Such a limited achievement will not resolve the conflict but it could put an end to the collective punishment of people in Gaza.
6 responses so far
The Geneva Conventions of 1949 are widely enough accepted to have obtained the status of customary law under international law, therefore there is a clear prohibition against collective punishment. This is because collective punishment is meant to be a sort of reverse terrorism or terrorism of the strong–it is enacted out of frustration in order to force individuals to collectively exert pressure for a political end. In the case of Gaza that end was originally to replace the Hamas government. Like terrorism, it is rarely effective and often has many side effects, unintended consequences or blowback. Even if the blockade forced Hamas to capitulate, it is likely to spark terrorism by smaller groups that are even less responsible. It will over time create a general condition of anarchy–this may be the Israeli intention; if it is, it is very shortsighted.
If we have not noticed, or we choose to ignore, who is the party that is practicing collective punishment, and who are those subjected to it ? If we do not make those two points clear, then we will not be able to ask ourselves and suggest the :Re Thinking of “Collective punishment”. If those prior two points are not considered and satisfactorily answered, then the title should be: How can we rationalize collective punishment ? Even though I feel Michael is and always tries to be balanced and fair in his opinions, I can’t help but point out that in this article his sense of bias to create a rationalization of a very clear act against our humanity in general in spite of whom this act is carried against, is off the balance scale. Saying all that, I will refer back to our case at hand, and that is: The inhumane siege and blockade of 1.5 million Palestinians in the Gaza Strip.
I am going to simplify issues again in order for me to expose them without much argument and details of language and philosophical points.
Israel’s creation, by a group of people from outside of the regional area, and introducing foreign individuals to the indigenous inhabitants of the land, was and still is an imposing and forced act. It did not happen naturally or due to a natural geographical change. It took planning, tactics, diplomatic maneuvering, behind-doors deals and plots, foreign money and even foreign arms. It took transferring foreign population from one region to another. As a result, and contrary to what the Zionist propaganda was advertising at that time — “Land without people for people without land!” — there were and still are people in that land, and so the problem has been created and we are all trying to justify it, rationalize it, and also attempt to find a solution for it.
Zionists and their Jewish leaders have set in the past few plans to eliminate that problem they faced and still are facing till today by implementing a few different methods. Most of us know what they are, but I will mention a few, for those who forgot. Israel first used collected monies from wealthy Jews of Europe to buy some land ,which they did. Then, when they were faced with some resistance from the locals who had some idea of the bigger Zionist plan, they started to use some bribery, then black mailing, when one did not work , so they used the other. Then when things blew their cover, military tactics were used , and with the help of the occupying British army, execution and jail terms where used. When that did not deter the Palestinians in their struggle against the British and the Zionist Haganah and Irgun terrorist groups, then they used massive terror against the Palestinians villages, by massacring the men of each village and shooting them after they had surrendered. And if that was not enough, they have massacred women and children to plant terror in peoples’ hearts, and spread the fear among the Palestinians so they can flee their homes. This plan partially worked, because approximately 700,000 Palestinians in 1947-48 were made refugees. Israel, since then, has had wars against the Palestinian people and her neighbors in order for her to achieve that goal set by the Zionist founders of Israel. In spite of Israel’s relative success of the Zionist plan, the Palestinians have not been defeated and have not submitted to the will of the Israelis and their military dominance. Israel has used all its American and foreign supplied power against the people of Palestine, but yet it’s not defeating them. So Israel or any identity for that matter, in implementing such a plan for the last 62-63 years, had to suffer the consequences of its own behavior. That is the loss of its moral grounds of its leaders and its population, as they all, men and women, have to serve in its army to implement such a colonizing rogue occupation. Stealing and dominating the Palestinian population. Israel has killed over one hundred thousand Palestinians. Israel has expelled tens of thousands of Palestinians nationalists from their homes. Israel has target assassinated hundreds of Palestinian freedom fighters and activists. Israel at any given time has thousands thrown in its dark jails, with and without fair judicial representation and hearings. Israel and its blind Jewish supporters are at a loss for ways to achieve the Zionist dream. They are at such loss that they have been committing all kinds of crimes against the Palestinians and against humanity. Last year’s war of terror on Gaza using all illegal munition against the civilian population shows how low the Israelis have sunk. So this Gaza three-years siege and blockade against all the population of 1.5 million Palestinians is their sequence of criminal inhumane attempts to submit the Palestinians to the theft of their Palestine, by foreign Zionist Europeans, who wants them to accept their military power as a righteous war and right to this sad land theft.
Do not rationalize nor debate the legitimacy of such a strangulation of innocent people — men, women and children — to rationalize a crime against humanity. The Palestinians have the right to defend themselves. Their resistance should not and should never have been held against them to be all called terrorists, and collectively punish them to kill their resistance. You should question Israel’s right and legitimacy to what they have been doing for the last sixty two years. Jews have a right to live and survive, but the Palestinians should not pay this high price.
Michael, You wrote: “Before employing it, one must examine several factors: the legitimacy of the purpose; the particular form employed, the severity of the effect, the length of the application, and the likelihood of success.
If an instance of collective punishment is justifiable, then it ought to be possible to publically communicate that in a persuasive fashion. If no one can clearly articulate why collective punishment is being applied and what the intended result is, then chances are it is indefensible.”
I take this as the crux of your argument, and I think it’s a point exceptionally well-made. This is a question Friends have struggled with, particularly in relation to the question of economic sanctions, and you propose criteria which may help us and others wrestle with the morality of such choices.
I would also just note that, if one is using the term “collective punishment” as defined by the amendments to the Geneva Convention, the legal term as defined would not — to my mind — apply to either South Africa or Israel, as neither are in a declared state of war, nor are they “protected,” as a population under occupation. (Does the war have to be declared? Does that even matter in the context of those documents? More to the point, should it?) I’m not necessarily advocating that we limit ourselves to the legal definition, as I believe the moral arguments you make regarding the impact of collection punishment on any people may outweigh that fine but important distinction.
Also, there is another criterion to consider–the extent to which members of the community under assault–whether militarily or economically–agree with and indeed request the “collective punishment,” to which they themselves are subject. Generally speaking, Africans in South Africa not only supported sanctions against South Africa–regardless of the economic impact it had on them–but indeed called for them. Granted, they are not the entire population of South Africa, and not the only ones to consider. But I think it may be an interesting point to consider as well when trying to decide what constitutes ethical action.
Thank you for your thoughtful writing. I hope the new year is treating you well. Sorry it’s taken me so long to stop by. Best, Val
A Modest Proposal about Collective Punishment: A Response to Michael Lame
I’ve suggested to Michael that he is seeking the Jonathan Swift Prize for his latest effort. Perhaps the prize should be named for the Queen of Hearts instead.
“Collective punishment” is a phrase of art. It is a prohibition binding on a belligerent occupier in dealing with protected persons. Art 33 of the Fourth Geneva Convention (1949) prohibits punishment of protected persons for offenses they have not personally committed, and prohibits reprisals against protected persons or their property. Proud of its newly-won place as a state recognized by the international community, Israel signed the 1949 Conventions. Although the Israeli Supreme Court has held that Israel is not bound as a signatory because it neglected to legislate the conventions into the Basic Law, the court nevertheless applies them as part of customary (universally accepted) international law. Palestinians in the Occupied Territories are protected persons, as the Israeli Court accepts, and the overwhelming consensus is that Gaza is still Occupied Territory. (Dinstein, The International Law of Belligerent Occupation, pp 276-9)
The assertion that the Conventions are “fallible” or dated, and therefore can be ignored, is wrong and dangerous. Note that the international community has updated the conventions, in 1977 and after, but that the U.S. and Israel have refused to join that effort, largely to avoid further constraints on use of force. But customary law, including the 1949 conventions, is binding. Michael’s argument could as well be made as to long-standing domestic criminal statutes: if they no longer serve our interests as we now see them, they should be ignored. It doesn’t work that way.
And what would we be left with, if LOIAC (the law of international armed conflict), the best efforts of the international community to contain the horrific effects of modern military violence, became optional? If obligation became the subjective, ephemeral, non-binding, infinitely arguable standards Michael suggests? Would it not be the “law of Lidice,” or of Thucydides’ Melos: The strong do what they can, and the weak do what they must? Cynics would say the lesson of Melos is rather, try like hell to be Athenians, not Melians.
If Palestinians had the power to impose collective punishment for acts of Israelis they considered state terrorism or violations of LOIAC, retribution on the scale of Cast Lead (much less the totality of the occupation) would require the death of one out of every thousand Israelis, tens of thousands of injured, hundreds of thousands of unemployed, and homes, businesses, utilities, clinics, schools and infrastructure destroyed. Then we could have the fascinating argument about whether the measures the Palestinians chose were too severe, or too lengthy, or too unlikely to be “successful.” But, assuming that Palestinians possessed hegemonic power and that there were no binding standards, they might think they had won the argument even if we did not. You would also wonder whether such horror visited on the Israeli population would change their minds about their policies. One suspects not.
War, non-military sanctions and the “BDS” movement do not involve collective punishment. War is not collective punishment precisely because LOIAC exists to limit the horrors of that activity to combatants and the property directly engaged in the conflict. LOIAC does not succeed perfectly, of course, but then Michael would make it optional and presumably thereafter totally ineffective. Economic and other state sanctions short of war, to the extent they are badly designed, do have adverse effects on innocents, and thereby hangs another lesson.
International relations scholarship has long taught that state sanctions are seldom effective to force intended change in target state behavior, and are often counter-productive. One reason is exactly that they hurt those who are essentially powerless to effect the demanded change. That population then turns on the author of the sanctions, and rallies around its own regime even if is otherwise hated. The famous exception, South Africa, can be argued forever, but two things are notable: First, the majority ethnic group in South Africa called for the sanctions even though they were hurt by them; and second, one of the most effective elements of the sanctions was the ban on international competition of the (white) national sports teams.
True collective punishment in Gaza gives similar results, but at much higher human cost: Hamas has been empowered by the siege, to the cost of Fatah and legitimate Palestinian businesses. No change in behavior begins to justify the massive pain and oppression.
The BDS campaign is one of voluntary economic choices. Again, such measures are unlikely to be effective when they target the wrong people (academics, legitimate Israeli businesses) rather than settlers and the enforcers of the occupation.
Only in Wonderland can the Queen of Hearts make words mean whatever she says and nothing else. These particular words represent the world’s best efforts, even if imperfect, to prevent reversion to Melos. We toy with them at our considerable peril. What was posited here – that we re-define collective punishment to encompass everything from private economic choices (BDS) to the use of overwhelming deadly force against civilians subject to occupation (Cast Lead), and then make them all justifiable by vague and non-binding standards – is to encourage (and forgive) impunity by the powerful. Not for the first time, Michael.
This was a very interesting post. It really put the term “collective punishment” into an entire gray area for me, while i was intially of the idea that it was always wrong.
Hi Michael,
Israel policy has always been to get rid of Palestinians by any means , even using concentration camps similar to the ones used by Nazi Germany.
Nabil