Iron Swords - Law - Collective Punishment
“Just as the civilised world united to defeat the Nazis and united to defeat ISIS, the civilised world must unite to defeat Hamas,” Netanyahu said 18 October 2023. Palestinian admission of defeat to Israel could be the foreclosure of a Palestinian State. Many in the Muslim Brotherhood claim the peace treaty with Israel was a humiliation for Jordan. After the Great War, Germans tasted defeat. Enemy soldiers set foot on Germany territory only after the war. The Germans tasted defeat once again in the Second World War, after years of carpet bombing. After the war, Germany was divided and occupied by the Allies.
Daniel Pipes wrote in 2016 : "Victory means successfully imposing one's will on the enemy, compelling him through loss to give up his war ambitions. Wars end, the historical record shows, not through goodwill but through defeat. He who does not win loses.... It requires a long-term strategy that breaks the will and promotes a change of heart. The goal here is not Palestinian love of Zion but closing down the apparatus of war.... Unleashed from a genocidal obsession against Israel, Palestinians can become a normal people and develop their polity, economy, society, and culture."
Eliyahu Abramson wrote in 2016 : "In order for Israel to attain peace with the Palestinians, Israel must win and Palestinians must lose,... Israel in every war against the Arabs was held back before finishing the job by the United States. That allowed Israel’s enemy to claim a victory each time despite their crushing defeats. ... In order for Israel to survive, Palestinians, as a power, have to be defeated, as long as Palestinians’ true objective is the destruction of the Jewish State of Israel.... Only after crushing defeat would Palestine accept Israel as the majority Jewish State with its capital in Jerusalem."
United Nations Secretary-General Antonio Guterres, speaking in Beijing just hours after the bombing of the al-Ahli Arab Hospital in Gaza, said that Hamas “attacks cannot justify the collective punishment of the Palestinian people”.
International humanitarian law (IHL) categorically prohibits all types of collective punishment. However, neither treaty nor customary sources provide a clear definition of what should be deemed a collective punishment. Collective punishment is the practice where a group is punished for one person's transgression. The punishment of an entire group because of the misdeed of a few of its members is generally considered as unfair. Collective punishments entail situations in which an entire group is punished for a wrongdoing perpetrated only by a subset of its group members.
Collective punishment of the civilian population is described in both the Geneva and Hague international conventions, to which the US is a signatory. They are also illegal under international law and treaties which the US has signed, and would appear to violate US law as well. Although these treaties apply only during wartime, UN human rights experts have argued that it does not make sense that civilians should only have this protection during situations of armed conflict.
Under Article 50 of Convention (IV) respecting the Laws and Customs of War on Land. "No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible."
Article 33 of the Fourth Geneva Convention, also known as the Geneva Convention (IV) on Civilians, 1949, covers the following topics: No protected person can be punished for an offense they did not personally commit; Collective penalties are prohibited; All measures of intimidation or terrorism are prohibited; Pillage is prohibited; and. Reprisals against protected persons and their property are prohibited.
"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."
No one shall be convicted of an offense except on the basis of individual penal responsibility. Collective punishments are prohibited. Collective punishments have been specifically prohibited with respect to POWs, protected persons under the GC, and inhabitants of occupied territory, and also in connection with non-international armed conflict. This prohibition includes penalties of any kind inflicted upon persons or groups of persons for acts that these persons have not committed, including administrative penalties. Punishment on the basis of conspiracy, joint criminal enterprise, and other theories of secondary liability are not prohibited by this rule.
Prohibition of collective penaltie embodies in international law one of the general principles of domestic law, i.e. that penal liability is personal in character. This paragraph then lays a prohibition on collective penalties. This does not refer to punishments inflicted under penal law, i.e. sentences pronounced by a court after due process of law, but penalties of any kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity, for acts that these persons have not committed. This provision is very clear. If it is compared with Article 50 of the Hague Regulations, it will be noted that that Article could be interpreted as not expressly ruling out the idea that the community might bear at least a passive responsibility. Thus, a great step forward has been taken. Responsibility is personal and it will no longer be possible to inflict penalties on persons Who have themselves not committed the acts complained of. Art. 4 of the Second Additional Protocol (AP II) deems the prohibition a “fundamental guarantee” for “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities,” one that applies “at any time and in any place whatsoever.” AP II is not universally ratified, unlike the Geneva Conventions, but the ICRC considers the rule to apply as a matter of customary international law to non-international as well as international armed conflict (Rule 103). The US, which has not ratified AP II, disagrees with the ICRC concerning some of the rules in the Custom Study, but Rule 103 is not among them. Jose Serralvo notes "Israel has often been accused of inflicting collective punishments on Palestinian civilians. Allegations include the land and sea blockades of Gaza, the policy of demolishing the houses of relatives of Palestinians who attack Israeli civilians or the Israeli armed forces, withholding bodies of Hamas-affiliated fighters or the restrictions on freedom of movement in the West Bank, among others."
The International Committee of the Red Cross stated 14 June 2010 "Gazans continue to suffer from unemployment, poverty and warfare, while the quality of Gaza's health care system has reached an all-time low. The whole of Gaza's civilian population is being punished for acts for which they bear no responsibility. The closure therefore constitutes a collective punishment imposed in clear violation of Israel's obligations under international humanitarian law.... The hardship faced by Gaza's 1.5 million people cannot be addressed by providing humanitarian aid. The only sustainable solution is to lift the closure."
The issue of enforcement by means of non-forcible measures is and remains one of the least developed areas of international law. Notwithstanding its importance, it remains plagued by a variety of delicate controversies and grey areas. Sanctions are legal under international law. They are a political instrument that can be used to settle disputes between states. Sanctions can be diplomatic, economic, or military. They are not considered an act of war. Sanctions are based on the UN Charter and national legal acts. However, there is little legal recourse for those who are sanctioned. Such sanctions may be appropriate when applied to individuals or companies.
There is no specific rule in international law that prohibits states from using unilateral sanctions against other states. However, unilateral sanctions may be considered unlawful if they lack authorization. Article 2(4) of the Charter prohibits the use of force against sovereign nations.
Economic sanctions are the modern equivalent of a siege. The legality of economic sanctions on countries has been questioned. The use of indiscriminate weapons on a civilian population is recognised as unlawful. The Fourth Geneva Convention of 1949 was an attempt to protect civilians from harm during wars. Subsequent protocols adopted in 1977 tried to ensure greater protection for civilians. Economic sanctions on countries may be held to be inconsistent with the UN Convention on the Rights of Children. The Convention concerns the rights of children to access healthcare, social welfare, and education. Every nation has ratified the Convention, with the exception of the USA.
AZ Marossi and MR Bassett write : "it is now universally accepted that the imposition of economic sanctions, be they unior multilateral, have broad-ranging and often unintended effects on the targeted State’s civilian population. Equally, it is also without question that States do, and should, have the right to impose economic sanctions in circumstances where the targeted State is a threat to the sanctioning State’s security or to international peace and security. The increased use of sanctions in lieu of military measures has, and can, ensure that more peaceful efforts are taken to resolve international disputes before resorting to military means. But due to the dichotomy of realities between the need to impose economic sanctions and their harmful effects, it becomes all the more necessary that more discussions and efforts are had to ensure that economic sanctions programs are restrained by a legal order that ensures they are humane in their implementation and effects."
The Britishers were pretty handy with collective punishment in Iraq. Collective punishment is illegal under various international laws. But these prohibitions relate to matters such as massacring a whole in reprisal for an assassination of a Nazi bigwig, or punishing an entire barracks for an escape attempt by a single POW.
But a broader reading seems to contradict Clausewitzian trinitarian war, of the army, the state, and the people. There seem to be two elements in the ICRC argument, one relating to punishment, and the other to responsibility. The ICRC is obviously right that the Gazans have a poor quality of life due to the blockade, and that they are not personal and directly responsible for the transgressions of the HAMAS. The HAMAS won the 2006 election which was described by international observers as "free, fair, and secure." Subsequent developments followed the PCI formula of "one man, one vote, one time", but a connection between the HAMAS and Gazans cannot be easily denied.
The USA has sanctioned all kinds of people, places and things for all kinds of reasons, and these sanctions in some instances have impacted the entire population of the country against which they were directed. So how to differentiate between the POW camp and US sanctions on Russia?
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