The extensive military operations that have been conducted by the Israeli army in and around the Gaza Strip over the past weeks have displayed a marked disregard for international humanitarian law and have involved the imposition of grave and unlawful measures of collective punishment on the Palestinian population. The principle of proportionality has been completely abandoned. As part of its attempt to secure the release of a single captured Israeli soldier, the army has destroyed bridges, government offices and civilian property, and cut off the electricity to over half the population of Gaza. One Israeli journalist has described the operation simply as an “act of vengeance”.
Israel has long taken the view that it is justified in inflicting collective punishment because the Palestinian population is collectively responsible for any acts committed within its midst. Politicians frequently speak of the “heavy price” that must be paid for attacks on Israeli citizens or the army.
There is considerable historical precedent for such conduct. Reliance on collective responsibility was hitherto viewed as a lawful means of deterring the commission of hostile acts by a population in occupied territory. During the United States-Mexico War of 1847-48, US General Winfield Scott ordered that if individuals responsible for attacks on troops and army property were not handed over by the Mexican authorities then “the punishment shall fall upon entire cities, towns, or neighborhoods”. The tactic of punishing on the basis of a notion of collective responsibility was also a common feature in colonial era conflicts - in the Boer War the British would respond to hostility by imposing fines, burning farms and destroying private property. The Black and Tans relied on similar means in pre-independence Ireland, as exemplified by notorious incidents such as ‘The Sack of Balbriggan’.
It was during the Second World War, however, that this concept of collective responsibility was relied on in the bloodiest of ways. The treatment of the Russian population by the Nazis, for example, was described as a “punitive expedition in continuous operation”, in which widespread collective penalties were inflicted in the form of mass executions and extensive destruction of property. On the Allied side, Winston Churchill proposed in the aftermath of several massacres in Czechoslovakia that three German villages should be razed for every one which had been destroyed by German troops. In the aftermath of the war several Nazi war criminals were convicted of the crime of collective punishment by Allied military tribunals.
Universal repugnance to the conduct of the Second World War led to the adoption in 1949 of the Geneva Conventions, marking a turning point in the way in which States would conduct themselves during warfare. More States have signed up to these important treaties than the United Nations Charter, demonstrating a universal commitment to be bound by the rules of international humanitarian law. The Fourth Geneva Convention protects civilians in occupied territories and states clearly that “[n]o 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.” While reliance on collective responsibility was not relegated to the past - Saddam Hussein is currently being tried for the murder of 143 people in Dujail as a collective punishment for an attack on his life there in 1982 - the unlawful character of such conduct is now established beyond doubt and can no longer be justified on the basis of some perceived deterrent effect.
Despite being a signatory to the 1949 Geneva Conventions, Israel has frequently resorted to collective punishment since the beginning of the occupation of the West Bank and Gaza in 1967. It has illegally demolished thousands of houses in response to hostile acts committed by one or more of the inhabitants. The Supreme Court has regularly upheld the lawfulness of this practice, regardless of the clear conflict with the rules of international law, and Justice Ben-Dror once commented that an individual who engages in terrorism “should know that his criminal acts will not only hurt him but also are apt to cause great suffering to his family”. Although the practice of house demolition was temporarily suspended in 2004, the Israeli army has indicated a willingness to resurrect the practice if circumstances require it.
The imposition of collective punishment is a war crime under customary international law. Numerous individuals being tried before the Special Court of Sierra Leone have been charged with just such a crime. But in the most comprehensive codification of international crimes, the Rome Statute of the International Criminal Court, collective punishment does not feature among the dozens of listed war crimes over which the Court has jurisdiction. Although Israel is not a party to the Rome Statute, its representatives did attend the 1998 diplomatic conference which led to the adoption of the instrument. It was at their behest that the war crime of collective punishment was excluded from the Court’s jurisdiction.
The Israeli armed forces’ actions in Gaza continue its long-standing tradition of taking harsh collective punitive measures against the Palestinian population. History has shown that such repressive measures rarely achieve their stated objectives. Rather than deter hostile conduct, such actions have tended to antagonize and embitter the local population, and provoke even further violent acts of resistance. In the context of this particular conflict, and especially in light of the political compromise that had been achieved between Hamas and Fatah days before the commencement of the Gaza offensive, it seems that a revival of hostilities may very well have been what the Israeli authorities had intended when they allowed the armed forces to take such extreme and disproportionate measures.
Dr. Shane Darcy is a lecturer at the Transitional Justice Institute, University of Ulster and a founding member of Human Rights for Change. He is author of ‘Accountability in International Law; The Use of Collective Responsibility’ (forthcoming 2007, Transnational Publishers).