Source: ForeignAffairs4
Source: The Conversation – UK – By Leonie Fleischmann, Senior Lecturer in International Politics, City St George’s, University of London
A recent episode on the West Bank when hundreds of Palestinian men were detained by the Israel Defense Forces (IDF) has highlighted the IDF’s tactic of “collective punishment”. This is defined as “a form of sanction imposed on persons or a group of persons in response to a crime committed by one of them or a member of the group”. Is it illegal under international humanitarian law.
Acting in response to the detonation of “an explosive device”, which hit a military vehicle and injured two soldiers, IDF troops are reported to have arrested about 1,500 men in the city of Tulkarem in the northern West Bank. Troops imposed a curfew and sealed off entrances to the city.
A Telegram message posted by the IDF reported that “soldiers are encircling the city, conducting roadblocks and inspections in the area”. Footage shared by residents showed soldiers marching Palestinians in lines through the streets.
These events came just days after six Israelis were killed and 12 were injured in Jerusalem, when two Palestinians boarded a bus and opened fire. In response, the IDF began laying siege on the villages from which the shooters came. Israel’s prime minister, Benjamin Netanyahu, vowed that: “We will get everyone who helped them, everyone who sent them, and we will carry out even tougher measures.”
Defence minister Israel Katz subsequently ordered sanctions to be imposed on the two villages where the gunmen lived. The Independent has reported that this included the demolition of their homes and every structure in the two villages that had been built without a permit. In addition, 750 Palestinians will also have their permits to work in Israel revoked.
Israel has operated a policy of collective punishment for decades. Israeli human rights organisations B’Tselem: The Israeli Information Centre for Human Rights in the Occupied Territories, and Yesh-Din: Volunteers for Human Rights, have documented these policies which include curfews, roadblocks, house demolitions, administrative detention and expulsion. In these cases, individuals who have done no wrong are intentionally harmed, thus defying the law.
The legal debate
The West Bank – and the Gaza Strip until 2005 – are defined as “Occupied Territories” under international law. This means that they are governed by laws of occupation as laid down by the law of international armed conflict. These are codified in the 1907 Hague Regulations and the Fourth Geneva Convention of 1949 which sets down the laws for treatment of civilians in warfare.
They also draw on customary international humanitarian law to protect those living under occupation and to determine the obligations of the occupying force. Following two rulings by the International Court of Justice in 2004 and 2005, international human rights law also became applicable to Occupied Territories.
Thus, Israel is subject to article 33 of the Fourth Geneva Convention, which states that “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 terrorism are prohibited”.
However, certain clauses within the laws recognise the legitimacy of the occupying force to protect its own security against what is likely to be a hostile population. The rights of the occupied population are therefore balanced against the security of the occupying population.
On this basis, the Israeli army claims that the measures they impose following an attack is to deter other Palestinians from carrying out similar attacks. They are therefore justified out of military necessity. The Israeli high court of justice (HCJ) has ruled, more often than not, that the demolition of the house of an assailant, even if other family members also live there, is legal. This is because of its deterrence potential.
Despite this legal wrangling, my research into the relationship between human rights and the law in Israel and Palestine discovered various reports that have questioned the HCJ’s independence. They argue that since it is an institution within the system of occupation, it does not have the neutrality to assess such cases.
B’Tselem reported that the HCJ often “accepts the state’s position and engages in legal acrobatics in order to sanction a severe violation of human rights”. Similarly, a report by Palestinian human rights organisation, Al-Haq, reached the same conclusion. It said the HCJ “tends to endorse the position of the Israeli military and government authorities through flawed and often politically subservient legal reasoning”.
Given the flaws in appealing to the HCJ, it’s more appropriate to look to international law to determine the legality of Israel’s actions. The International Red Cross makes clear that under international law any form of “sanction, harassment or administrative action taken against a group in retaliation for an act committed by an individual/s who are considered to form part of the group” is illegal.
If justice is to be served, these acts of collective punishment – which, based on international humanitarian law, appear to qualify as potential war crimes – need to be tested in a court or tribunal.
Leonie Fleischmann does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
– ref. What international law says about Israel’s collective punishments against Palestinian civilians – https://theconversation.com/what-international-law-says-about-israels-collective-punishments-against-palestinian-civilians-265510