February 24, 2008
Collective Punishment and NewspeakBy Michael I. Krauss
Activists and some UN Security Council members argue that Israel's restrictions on fuel deliveries to Gaza constitutes collective punishment in violation of the Fourth Geneva Convention. The argument is nonsense.
On May 17, 1942, SS Obergruppenfuhrer Reinhard Heydrich was killed in the suburbs of Prague, Czechoslovakia by a bomb thrown by Free Czech agents trained in England. The killing of Heydrich, the commander ("Deputy Reich Protector of Bohemia and Moravia") of invading forces, was clearly legal under international law.
In response, the Gestapo and the SS killed over 1000 people suspected of being involved in the plot. In addition, 3000 Jews were deported from the ghetto at Terezin (Theresienstadt, created by Heydrich) for immediate extermination. In Berlin 152 Jews were ordered executed on the day of Heydrich's death. Finally, on June 10, 1942 Lidice was ordered destroyed. All 172 Czech men and boys over 16 were shot. 80 women were deported to Ravensbruch concentration camp, where almost all died. 90 young children who looked Aryan were distributed to German families, while others were shipped to Gneisenau concentration camp for extermination. The village itself was then razed and its name removed from German maps.
The massacre at Lidice, along with other Nazi atrocities such as the killing of the entire population (642) of Oradour-sur-Glane, France two years to the day after Lidice (to punish the village for Resistance activities) and the horrific massacres of Serbian civilians by SS Prinz Eugen division troops for supporting the resistance movements, continued a sad German tradition [in the First World War, Germans had executed Belgian villagers in mass retribution for resistance activity].
These atrocities were fresh in the minds of international diplomats after the end of the War. Article 33 of the Fourth (1949) Geneva Conventions enshrined collective punishment as a war crime, emphasizing individual responsibility:
Article 33. 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. Pillage is prohibited. Reprisals against protected persons and their property are prohibited.
Article 52 of the Convention's Additional Protocol I (adopted in 1977) similarly states that "Civilian objects shall not be the object of attack or of reprisals."
The doctrine of collective punishment has died hard, despite the Fourth Convention's clear insistence on individual responsibility. Arab states expelled the majority of their Jewish populations in reprisal for Israel's successful self-defense in the War of Independence. Britain arguably used collective punishment against villages where Communist rebels had been concealed in Malaya in 1951, and again to suppress the Mau Mau uprising in Kenya in 1952. Hafez El-Assad of Syria notoriously destroyed half of the conservative Sunni city of Hama (massacring 20,000 men, women and children) as collective punishment for a Muslim Brotherhood uprising against his Alawi regime in 1982.
The Israeli Government's reduction of fuel and electricity exports to the Gaza Strip has recently been termed a modern instance of collective punishment that violates Israel's obligations under the laws of war. In a lawsuit filed by Israeli and Palestinian civil rights groups before Israel's Supreme Court, these organizations asked the Supreme Court to make Israel end fuel restrictions that caused power blackouts in the Gaza Strip. The activists argued, as did representatives of many members of the Security Council in their special meeting on the Middle East on January 22, 2008, that the restrictions constitute collective punishment of Gaza's 1.5 million people and violate the Fourth Geneva Convention.
But this claim is nonsense, and makes a mockery of international law. This is so for the following reasons:
It conflates failure to aid with active criminal harm. Acts of war are launched daily against Israel from Hamas-run Gaza. Bombs are lobbed against Israeli cities (especially Sderot), resulting in official government rejoicing when an Israeli civilian is killed or maimed. Hamas denies Israel's right to exist, and has masterminded countless acts of war against military and civilian targets in Israel.
The Jewish state has the uncontested right to defend itself against such acts of war. The bar on collective punishment forbids the imposition of criminal or military penalties (imprisonment, death, etc) on some people for crimes committed by other individuals. But ceasing trade with a country is not inflicting a criminal or military penalty against that country's citizens, not least because those citizens have no entitlement to objects of trade that they have not yet purchased. If Canada tolerated and celebrated car-bombings of Buffalo from Fort Erie, Ontario, the United States could cease exporting cars to Canada - such cessation of trade was never contemplated as collective punishment, because it is not a military or a criminal sanction. The United States quite legally froze trade with Iran after that country committed an act of War against the USA following the 1979 Revolution.
Even prevention of access of goods coming from third parties is not collective punishment: the U.S. blockade of Cuba after they installed nuclear missiles directed at the United States was not a collective punishment of the Cuban people, it was a non-violent act of war in self-defense. In any case, Israel has made no effort to prevent Gaza from receiving electricity from Egypt; it has merely declined to furnish this assistance itself. Article 49 of the Geneva Conventions clearly does not outlaw such acts. The current misuse of the term in the Security Council would have exactly that effect.
The electricity withheld from sale was a military tool. Article 52 of the 1977 Amendment to the Geneva Convention explicitly countenances attacks on legitimate military objectives, which are "those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage." As Israel has pointed out, its (minor) reduction in electricity sold means that "Hamas will have to decide whether to provide electricity to hospitals or weapons lathes." Diesel will be allowed in to fuel ambulances, sewage pumps, generators and garbage trucks, but gasoline will be restricted. According to estimates, Israel still exports approximately US$500 million worth of goods and services into the Gaza Strip each year.
The claim is Newspeak. The charge of collective punishment is appropriately leveled against one side in the Israeli-Palestinian dispute; but that side is not Israel. As Joseph Klein recently pointed out in a Front Page Magazine article, the innocent Israeli women and children slaughtered while going about their daily lives in homes, schools, on buses and at shopping malls are not warriors against the Palestinian people. They are in large number the victims of the Hamas' measures of collective punishment against Jews -- intimidation and terrorism, which violate their most basic of human rights - life itself. Indeed, Israel has targeted the perpetrators of these atrocities individually, entirely in conformity with its international obligations. When Israel kills such targets, precisely the people who have individually committed acts of war against Israel, it highlights the difference between legal force and collective punishment.
Michael I. Krauss is Professor of Law, George Mason University