Memorandum from Professor Iain Scobbie,
School of Oriental and African Studies, University of London
A NOTE ON
COLLECTIVE PUNISHMENT
I have been asked to provide a brief note on
the concept of collective punishment under international law which
addresses the following questions:
— has Israel been accused of resorting
to collective punishments?
In addressing these issues, I shall also consider
whether any exculpatory defences are available which would justify
the imposition of an otherwise unlawful collective punishment
or collective penalty.
For the purposes of this note, I shall assume
that Gaza remains under belligerent occupation notwithstanding
Israel's "disengagement" from that territory in August
2005. Argument of this point would go well beyond the bounds of
this paper, but this position represents the academic consensus.[2]
It should, however, be noted that Israel's Supreme Court does
not share this view, and has ruled that Gaza is no longer occupied.[3]
I shall also restrict the scope of this note to collective punishments
or penalties imposed by a belligerent occupant in occupied territory.
There are specific prohibitions on collective punishments in relation,
for instance, to prisoners of war (see 1949 Third Geneva Convention
Article 87.3), but these are irrelevant to the issue in hand.
My conclusions are:
— there exists a prohibition on the
imposition of collective punishments or penalties on the inhabitants
of occupied territory by an occupying power;
— this prohibition arises under customary
international law and is also imposed by the terms of various
treaties, the most important of which in the context of Israel
and the occupied Palestinian territories is the Fourth Geneva
Convention of 1949;
— a collective punishment or penalty
lies in the imposition of a prejudicial or unlawful measure by
the occupant in response to a criminal or hostile act committed
against it on individuals or groups who were themselves not legally
responsible for that act;
— collective punishments or penalties
cannot be justified under the doctrine of belligerent reprisals;
— the Fourth Geneva Convention imposes
obligations on all States parties to take measures in response
to the imposition of an unlawful collective punishment or penalty;
and
— Israel has been accused in the past
of resorting to collective punishments or penalties, and that
there is room to conclude that the blockade it has imposed on
Gaza is a collective punishment or penalty.
The imposition of collective punishments or
penalties on the population of occupied territory is prohibited
by both conventional and customary international law. It is prohibited
by Article 50 of the Regulations respecting the laws and customs
of war on land, annexed to 1907 Hague Convention IV. This
provides:
No general penalty, pecuniary or otherwise, shall
be inflicted upon the population [of occupied territory] on account
of the acts of individuals for which they cannot be regarded as
jointly and severally responsible.
Israel is not a party to Hague Convention IV,
but its annexed Regulations are recognised as having customary
status.[4]
This is the position which has been adopted by Israel's Supreme
Court in numerous cases—thus, for instance, in the Beth
El case (1978), Justice Witkon ruled that the Hague Regulations
formed a part of customary international law and were therefore
enforceable in the domestic courts of Israel.
This prohibition was repeated in Article 33.1
of the 1949 Fourth Geneva Convention relative to the Protection
of Civilian Persons in time of War. This paragraph provides:
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.
Subject to some qualifications, persons protected
by the Fourth Geneva Convention are civilians who "at a given
moment and in any manner whatsoever, find themselves, in case
of a conflict or occupation, in the hands of a Party to the conflict
or Occupying Power of which they are not nationals".[5]
Israel is bound by the Fourth Geneva Convention, although it claims
that it is not required to apply its provisions as a matter of
law to the occupied Palestinian territories because neither Jordan
nor Egypt possessed sovereignty over these territories before
the Six-Day War. This claim has been rejected by other States
parties to the Fourth Geneva Convention, the United Nations and
the EU. Moreover, it was unanimously rejected as legally unsound
by the International Court of Justice in its Legal consequences
of the construction of a wall in the occupied Palestinian territory
advisory opinion in 2004.[6]
While the prohibition on collective punishments
is repeated in Article 75.2.d of 1977 Additional Protocol I to
the 1949 Geneva Conventions relating to the Protection of Victims
of International Armed Conflicts ("The following acts are
and shall remain prohibited at any time and in any place whatsoever,
whether committed by civilian or by military agents:|(d) collective
punishments"), Israel is not a party to this Protocol and
thus is not bound by its provisions as a matter of a treaty commitment.
A similar prohibition is contained in Article 4.2.b of 1977 Additional
Protocol II to the 1949 Geneva Conventions relating to the Protection
of Victims of Non-International Armed Conflicts. Israel is also
not a party to this Protocol.
In its 2005 study on Customary international
humanitarian law, the International Committee of the Red Cross
stated that collective punishments are prohibited under customary
international law in both international and non-international
armed conflicts. Rule 103 of this study simply states: "Collective
punishments are prohibited".[7]
The study noted that the imposition of collective penalties was
considered a war crime in the Report of the Commission on Responsibility
which was created after WWI, and that the Military Court of Rome
ruled in the Priebke case (the Ardeatine caves case)
(1997) that during WWII the prohibition on collective punishment
had by then gained customary status. Further, the 1997 US Department
of Defense's Report to Congress on the Conduct of the Persian
Gulf War stated:
Iraqi policy provided for the collective punishment
of the family of any individual who served in or was suspected
of assisting the Kuwaiti resistance. This punishment routinely
took the form of destruction of the family home and execution
of all family members. Collective punishment is prohibited expressly
by Article 33 GC [IV].[8]
It is accordingly without doubt that the imposition
of a collective punishment or penalty during an armed conflict
is unlawful as it constitutes a breach of the conventional and
customary law of armed conflict.
The imposition of a punishment under the criminal
law as the result of a trial is only one measure which falls under
the rubric of the prohibition of collective punishment. The ICRC
Commentary on the Additional Protocols observes that:
The concept of collective punishment must be
understood in the broadest sense: it covers not only legal sentences
but sanctions and harassment of any sort, administrative, by police
action or otherwise.[9]
This view was reaffirmed in the ICRC customary
international humanitarian law study.[10]
The Additional Protocols and the study thus conflate the two separate
categories utilised in the Fourth Geneva Convention—namely
collective punishment and collective penalties—into one.
Nevertheless, in doing so they merely reflect the original understanding
of the scope of Article 33.1 of the Fourth Geneva Convention:
The first paragraph embodies in international
law one of the general principles of domestic law, ie that penal
liability is personal in character.
This paragraph then lays down a prohibition on
collective penalties. This does not refer to punishments inflicted
under penal law, ie 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...
Responsibility is personal and it will no longer be possible to
inflict penalties on persons who have themselves not committed
the acts complained of.[11]
Accordingly, a collective punishment, or collective
penalty, lies in the imposition of any prejudicial measure on
a group in response to a prior hostile or criminal act for which
they are not personally responsible.
As the Occupying Power of the occupied Palestinian
territories, Israel is prohibited from imposing collective punishments
or penalties on the civilian population of these territories who
are not its nationals. This duty is imposed on Israel by two distinct
sources of international law. It arises under customary international
law, but is also a treaty obligation incumbent upon Israel under
the terms of the Fourth Geneva Convention.
It might be argued that, faced with violations
of the law of armed conflict committed by armed Palestinian groups,
Israel could impose a collective punishment or penalty as a belligerent
reprisal. Belligerent reprisals are measures which are unlawful
under the law of armed conflict taken by one party to a conflict
in response to prior unlawful acts committed by the other party
in order to induce the latter to act lawfully in the future.[12]
It might, therefore, be asserted that Israel is entitled to impose
collective punishments or penalties on the civilian population
of the occupied Palestinian territories in response, for example,
to the firing of indiscriminate munitions from Gaza into southern
Israel. This exculpatory justification is not available: Article
33.3 of the Fourth Geneva Convention expressly states "Reprisals
against protected persons and their property are prohibited".
The Fourth Geneva Convention provides remedies
to States Parties if another imposes an unlawful collective punishment.
The immediate route lies in Article 1 of the Fourth Geneva Convention,
which is a provision common to all four Geneva Conventions, and
provides "The High Contracting Parties undertake to respect
and to ensure respect for the present Convention in all circumstances."
In the Legal consequences of the construction of a wall
advisory opinion, the International Court ruled:
It follows from that provision that every State
party to that Convention, whether or not it is a party to a specific
conflict, is under an obligation to ensure that the requirements
of the instruments in question are complied with.[13]
This is reinforced by Article 146 of the Fourth
Geneva Convention which requires all States Parties to "take
measures necessary for the suppression of all acts contrary to
the provisions of the present Convention".
If a specific collective punishment or penalty
falls within the acts enumerated as grave breaches in Article
147 of the Fourth Geneva Convention, then all States Parties have
the duty under Article 146 "to search for persons alleged
to have committed, or to have ordered to be committed, such grave
breaches, and shall bring such persons, regardless of their nationality,
before its own courts". The acts designated as grave breaches
in Article 147 include "wilful killing, torture or inhuman
treatment|wilfully causing great suffering or serious injury to
body or health, unlawful deportation or transfer or unlawful confinement
of a protected person|wilfully depriving a protected person of
the rights of a fair and regular trial prescribed in the present
Convention, taking of hostages and extensive destruction and appropriation
of property, not justified by military necessity and carried out
unlawfully and wantonly".
These are remedies specific to the Fourth Geneva
Convention, and do not preclude remedies available under the general
law of State responsibility.
Israel has been accused of imposing collective
punishments in the past, especially in relation to its policy
of demolishing the houses of Palestinians suspected or convicted
of participation in unlawful acts, such as attacks on Israeli
civilians or soldiers. This is a measure which adversely affects
others, generally family members, who also live in the house.[14]
The 17 March 2009 report of Professor Richard
Falk, the UN Human Rights Council's Special Rapporteur on the
Situation of human rights in the Palestinian territories occupied
since 1967, stated in relation to the launching of Operation
Cast Lead:
Any assessment under international law of the
attacks of 27 December should take into account the weakened condition
of the Gazan civilian population resulting from the sustained
unlawfulness of the pre-existing Israeli blockade that violated
articles 33 (prohibition on collective punishment) and 55 (duty
to provide food and health care to the occupied population) of
the Fourth Geneva Convention.[15]
Under the Fourth Geneva Convention, an occupant
has the duty to secure necessary humanitarian aid to occupied
territory. Article 55.1 provides:
To the fullest extent of the means available
to it, the Occupying Power has the duty of ensuring the food and
medical supplies of the population; it should, in particular,
bring in the necessary foodstuffs, medical stores and other articles
if the resources of the occupied territory are inadequate.
Medical care is expressly dealt with in Article
56.1:
To the fullest extent of the means available
to it, the Occupying Power has the duty of ensuring and maintaining,
with the cooperation of national and local authorities, the medical
and hospital establishments and services, public health and hygiene
in the occupied territory, with particular reference to the adoption
and application of the prophylactic and preventive measures necessary
to combat the spread of contagious diseases and epidemics. Medical
personnel of all categories shall be allowed to carry out their
duties.
The claim that the blockade of Gaza constituted
collective punishment has been made by a number of human rights
NGOs. This blockade has been applied in various spheres, such
as the control of ingress and egress of persons; the control of
imports; and restrictions placed on the supply of fuel and electricity.
In its Gaza fuel and electricity judgment
of 27 January 2008, Israel's Supreme Court stated that the supply
of fuel and electricity to Gaza had been limited in response to
terrorist actions emanating from Gaza. This was authorised by
a 19 September 2007 decision by Israel's Ministerial Committee
on National Security Issues which stated:
The Hamas organization is a terrorist organization
which has taken over the Gaza Strip and turned it into hostile
territory. This organization carries out acts of hostility against
the State of Israel and its citizens, and the responsibility for
such acts lies with it. In light of that, it is resolved to adopt
the recommendations presented by the security agencies, including
continuation of the military and preventative activity against
the terrorist organizations. Furthermore, additional restrictions
will be placed upon the Hamas regime, in a way that will limit
the passage of goods to the Gaza Strip and reduce the supply of
fuel and electricity, and there will be restrictions placed upon
the movement of persons to and from the strip. The restrictions
will be implemented after legal examination, taking into account
the humanitarian situation in the Gaza Strip, and with the intention
of preventing a humanitarian crisis.[16]
The Court noted that in an earlier decision
in these proceedings, a judgment of 29 November 2007, it had accepted
the claim made by the government that:
part of the fuel entering the Gaza Strip is used,
in fact, for various objectives of the terrorist organizations,
and in those circumstances, the reduction of supply of fuel, in
the measured way it is carried out, might harm the terrorist infrastructures
and their ability to strike at the citizens of the State of Israel,
considering that the amount of fuel inserted into the strip is
supposed to suffice only for the humanitarian goals that require
fuel.[17]
In the proceedings, the petitioners had argued
that the supply of electricity to Gaza could not be reduced without
causing power outages in hospitals, and interruptions in the pumping
of clean water to the civilian population of Gaza. Thus implementation
of the decision would necessarily cause "certain, severe
and irreversible harm to the necessary humanitarian systems"
in Gaza, namely to hospitals, to the water and sewer system, and
consequently to the entire civilian population.[18]
The Supreme Court effectively brushed these considerations aside,
claiming that because Israel no longer occupied Gaza, it need
simply allow the supply of those "goods needed in order to
fulfill the civilian population's basic humanitarian needs".[19]
This standard is not employed in the ICRC commentaries
to the Geneva Conventions and Additional Protocols, nor in its
customary international humanitarian law study. Rather these emphasise
the duty of ensuring an adequate provision of humanitarian aid.
The customary law study stresses the entitlement of the civilian
population to receive humanitarian relief, and that relief actions
are mandatory whenever a population is in need. Also, in recounting
the customary prohibition on the use of starvation of the civilian
population as a means of warfare, the study notes that the legality
of siege warfare is disputed, and that while Israel supports the
legality of sieges, its Military Manual states that the inhabitants
of a city under siege must be allowed to leave should they wish
to do so. Free movement is not something guaranteed to Gaza residents.
Consequently, there is room to conclude that
by implementing a blockade of Gaza in response to hostile activities
against Israel pursuant to the 19 September 2007 decision of Israel's
Ministerial Committee on National Security Issues, it would appear
that Israel is in breach of its duties arising under the law of
armed conflict. If, as Israel claims, it is no longer occupying
Gaza then it appears to be failing to fulfil its obligations regarding
humanitarian relief. If Israel remains the occupant of Gaza, and
this is the more convincing legal conclusion, then it appears
to be imposing a collective punishment or measure against the
civilian population of Gaza as a whole in response to hostile
or unlawful acts committed by only some members of that population.
The blockade has adverse effects on the population generally:
the collectivity is being sanctioned for the actions of a few.
Not only is this an illegal situation, but the specific means
employed breach Israel's humanitarian duties as an occupant under
the Fourth Geneva Convention.
26 April 2009
20 Henckaerts and Doswald-Beck, Customary international
humanitarian law: Vol.I, Rules, 199.
2 For academic commentary on the legal implications
of Israel's "disengagement", see, for example: Aronson
G, Issues arising from the implementation of Israel's disengagement
from the Gaza Strip, 34 Journal of Palestine Studies 49 (2005);
Benvenisti E, The law on the unilateral termination of occupation,
in Zimmermann A and Giegerich T (Eds), Veroffentlichungen
des Walther-Schucking-Instituts fur Internationales
Recht an der Universitat Kiel (forthcoming, 2009); Bockel
A, Le retrait israelien de Gaza et ses consequences sur le droit
international, 51 Annuaire francais de droit international 16
(2005); Bruderlein C, Legal aspects of Israel's disengagement
plan under international humanitarian law, www.ihlresearch.org/opt/pdfs/briefing3466.pdf
(this paper was initially issued in, and is dated, November 2004
but at some later point it was revised: it does not indicate that
it has been amended and, moreover, it retains its original date);
Gisha-Legal Center for Freedom of Movement, Disengaged occupiers:
the legal status of Gaza (Tel Aviv: 2007); Kaliser MS, A modern
day exodus: international human rights law and international humanitarian
law implications of Israel's withdrawal from the Gaza Strip, 17
Indiana International and Comparative Law Review 187 (2007); Mari
M, The Israeli disengagement from the Gaza Strip: an end of the
occupation?, 8 Yearbook of International Humanitarian Law 356
(2005); Scobbie I, An intimate disengagement: Israel's withdrawal
from Gaza, the law of occupation and of self-determination, 11
Yearbook of Islamic and Middle Eastern Law 3 (2004-2005), reprinted
in Kattan V (ed), The Palestine question in international law
(British Institute of International and Comparative Law: London:
2008) 637; Shany Y, Faraway, so close: the legal status of Gaza
after Israel's disengagement, 8 Yearbook of International Humanitarian
Law 369 (2006), and his Binary law meets complex reality: the
occupation of Gaza debate, 41 Israel Law Review 68 (2008); and
Stephanopoulos N, Israel's legal obligations to Gaza after the
pullout, 31 Yale Journal of International Law 524 (2006). Back
3
See Jaber al Bassouini Ahmed et al v Prime Minister and Minister
of Defense HC9132/07, delivered 27 January 2008, opinion of President
Beinisch, para 12, available at www.adalah.org/eng/gaza%20report.html Back
4
See Legal consequences of the construction of a wall in the occupied
Palestinian territory advisory opinion, ICJ Rep, 2004, 136 at
172, para 89. Back
5
Article 4.1 of the 1949 Fourth Geneva Convention. Back
6
See Legal consequences of the construction of a wall in the occupied
Palestinian territory advisory opinion, ICJ Rep, 2004, 173-177,
paras 90-101, and the Declaration of Judge Buergenthal, 240 at
240, para 2. Back
7
See Henckaerts J-M and Doswald-Beck L, Customary international
humanitarian law: Vol I, Rules (Cambridge UP: Cambridge: 2005)
374-375. Back
8
See Appendix O, The role of the law of war, 31 International Legal
Materials (1992) 620, quoted in Henckaerts and Doswald-Beck, Customary
international humanitarian law: Vol II, Practice, Part 2 (Cambridge
UP: Cambridge: 2005) 2509, para 3799. Back
9
Sandoz Y, Swinarski C and Zimmermann B (Eds), Commentary on the
Additional Protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949 (ICRC: Geneva: 1987), Commentary to Additional
Protocol I, Article 75, 861 at 874, para 3055. Back
10
See Henckaerts and Doswald-Beck, Customary international humanitarian
law: Vol I, Rules, 374. Back
11
Pictet J (Ed), Commentary to Geneva Convention IV relative to
the protection of civilian persons in time of war (ICRC: Geneva:
1958), Commentary to Article 33.1, 225. Back
12
On belligerent reprisals see, for instance, Henckaerts and Doswald-Beck,
Customary international humanitarian law: Vol I, Rules, 513-518;
and Sutter P, The continuing role for belligerent reprisals, 13
Journal of Conflict and Security Law 93 (2008). Back
13
See Legal consequences of the construction of a wall in the occupied
Palestinian territory advisory opinion, ICJ Rep, 2004, 199-200,
para 158. Back
14
For an extended legal analysis of the policy of punitive house
demolition see, for instance, Darcy S, Israel's punitive house
demolition policy: collective punishment in violation of international
law (Al Haq: Ramallah: 2003). Back
15
Richard Falk, Report of the Special Rapporteur on the situation
of human rights in the Palestinian territories occupied since
1967, UN Doc.A/HRC/10/20 (17 March 2009), 9, para 9. Back
16
See Jaber al Bassouini Ahmed et al v Prime Minister and Minister
of Defense HC9132/07, delivered 27 January 2008, opinion of President
Beinisch, para 2, available at www.adalah.org/eng/gaza%20report.html Back
17
Jaber al Bassouini Ahmed et al v Prime Minister and Minister of
Defense HC9132/07, opinion of President Beinisch, para 4. Back
18
See Jaber al Bassouini Ahmed et al v Prime Minister and Minister
of Defense HC9132/07, opinion of President Beinisch, para 7. Back
19
See Jaber al Bassouini Ahmed et al v Prime Minister and Minister
of Defense HC9132/07, opinion of President Beinisch, paras 11
and 14: President Beinisch's conclusion that Israel no longer
occupied Gaza is in para 12. Back
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