Lara Kajs | 15 January 2024 |
It is the unanimous directive from multiple legally binding international ordinances including the Universal Declaration of Human Rights, that collective punishment should be charged as a war crime. The Hague Conventions (1899 and 1907), the Paris Peace Conference (1919), the Military Tribunal at Nuremberg (1945-46), Geneva Convention IV and Additional Protocol II (1949), the International Criminal Tribunal for Rwanda (1994), and the US Department of Defense Law of War Manual (2015), each make allowances to charge collective punishment as a war crime.
The rules of war were created and agreed to by governments. When a country or warring party uses collective punishment against the noncombative civilian population – men, women, and children; it stands in violation of the very rules governments worked to create and promised to uphold. And when a country or warring party uses collective punishment with impunity, it is an abomination of the law.
Geneva Convention IV and Additional Protocols II
Article 33 of the Fourth Geneva Convention ensures that no protected person may be collectively punished for acts they did not commit. Collective punishment includes all measures of intimidation, terrorism, pillaging, destruction of property, and the targeting of civilian communities. The term is broad and is not limited to judicial penalties. Further, any penalties inflicted on any persons or groups in violation of the most basic principles of humanity for acts these persons have not committed is considered collective punishment.
– The Hague Conventions (1899 & 1907) – Article 50 defined the rules that make collective punishment unlawful. “No general penalty, pecuniary or otherwise, can be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”
– The Paris Peace Conference (1919) – The Commission on Responsibility concluded that collective penalties are a violation of the laws and customs of war and that parties in violation should be held criminally responsible.
– The International Military Tribunal at Nuremberg (1945-46) – Alleged that “the Germans pursued a systematic policy of inflicting, in all the occupied territories, collective penalties, pecuniary or otherwise, upon the population for acts of individuals for which it could not be regarded as collectively responsible.”
– Draft Code of Offenses Against the Peace and Security of Mankind (1991) – In Article 22, the International Law Commission listed collective punishment as “exceptionally serious war crimes” that apply in both international and non-international armed conflict.
– International Criminal Tribunal for Rwanda (ICTR) – Created by the UN Security Council in 1994, the ICTR was the first international criminal tribunal to have jurisdiction over collective punishment as a war crime. Article 4 of the ICTR Statute directed that the tribunal could prosecute collective punishment because it qualifies as “serious violations of Additional Protocol II.”
– The US Department of Defense Law of War Manual (2015) – Specifically stipulates that, in non-international armed conflict, “collective punishments, whether administered by a court or through administrative measures, are prohibited.”
International Criminal Court
Although international ordinances support charging collective punishment, the Rome Statute does not. That means that the ICC cannot prosecute collective punishment. Not even when it is committed in a situation under investigation by the Office of the Prosecutor (OTP).
Earlier proposals of the Rome Statute specified that collective punishment should be included as a punishable war crime. However, it was excluded from the final draft submitted to the Rome Conference in 1998. The removal was proposed by states “involved in annexation or occupation of ‘foreign’ territory.” But it is not inconceivable that the charge of collective punishment as a war crime could be amended to the Rome Statute, but it would have to go through the process and the new crime would only apply to state parties that choose to ratify the amendment.
Collective Punishment in Action
While international law mandates that collective punishment is unlawful, in the last hundred years, there have been many situations in which it has been unleashed upon the civilian population. For example, the collective expulsion of German-speaking civilians after WWII by the Soviet Union, Poland, and Czechoslovakia is collective punishment and was addressed as such by the Allies. At the same time, in the US during WWII, the rounding up of Italian, German, and Japanese Americans and immigrants to internment camps is also an example of collective punishment.
After the Arab Spring, several countries collectively punished the population in response to the uprisings. In Libya, Colonel Muammar Gaddafi ordered forces to rape women and girls to punish the civilian population for participating in the uprisings. Syrian dictator, Bashar al-Assad ordered the forces to collectively punish the population with chlorine barrel bombs and Sarin gas attacks, and cut off food sources, electricity, and communication networks; also in retaliation for the uprisings.
In Afghanistan, the Taliban have used collective punishment against women and girls for decades by restricting movement, clothing, educational rights, and employment. Further, the Taliban has used physical violence, detention, and death, to force compliance. The same can be argued in Iran and Saudi Arabia.
In one hundred days of war, one percent of Gaza’s 2.3 million population has been killed. At least 23,938 civilians are dead, and more than 8,000 are believed to be dead, buried under rubble. Indiscriminately bombing the entire civilian population of Gaza; forced displacement of a population; and forced migration of a population from its home to another country; all considered to be collective punishment. Further, Netanyahu’s suggested plan to forcibly remove all Palestinians from the Palestinian Territory to another country constitutes genocide.
Collateral Damage or Collective Punishment?
Collateral damage is a certainty in conflict and war. As horrible as it is to say, there will be civilian injury and death, and damage to civilian infrastructure and property in war. Some use the term “collateral damage” to justify civilian loss or to avoid talking about the human cost – innocent civilians being injured or killed. Or to give excessive human loss and destruction of property a pass… because it is war. But that is not what the law says.
The rules of war (Law of Armed Conflict, IHL) permit soldiers to carry out attacks against military objectives, even though they know that there will be civilian casualties. However, the attack must be consistent with the requirements of the principle of proportionality. Proportionality states that if the anticipated incidental loss of civilian human life or loss of civilian property is excessive to the expected military advantage, then you do not fire. You look for other options to carry out the mission.
The deliberate destruction of hospitals, leveling of twelve-story apartment buildings, the blocking of humanitarian relief into the area, and ordering the civilian population to flee one region, only to bombard the very region the people were sent to; imply that the goal is to inflict as much civilian casualties as possible. In this instance, it appears the intent is more about the destruction of Palestinians… the destruction of Gaza, and less about holding Hamas accountable for its actions.
Israel was attacked on 7 October, and the acts of the persons – Hamas rebels – who perpetrated those crimes deserve to the punished. Israel certainly has every right to defend itself. But there is a line between defense and collective punishment. The simple definition of “defense” is “the act of protecting someone or something against attack” (Cambridge). When Israel started launching attacks against Gaza, it was no longer in defensive mode, but an offensive attack. Using its forces to wholly destroy the people of Gaza – whether they are Hamas or not – is collective punishment. And by the standard set in multiple international ordinances, is a war crime.
Photo Credit: TGR Photo – Airstrikes over Gaza, December 2023.