Collective punishment is a punishment or sanction imposed on a group for acts allegedly perpetrated by a member of that group, which could be an ethnic or political group, or just the family, friends and neighbors of the perpetrator. Because individuals who are not responsible for the acts are targeted, collective punishment is not compatible with the basic principle of individual responsibility. The punished group may often have no direct association with the perpetrator other than living in the same area and can not be assumed to exercise control over the perpetrator's actions. Collective punishment is prohibited by treaty in both international and non-international armed conflicts, more specifically Common Article 33 of the Fourth Geneva Convention and Article 4 of the Additional Protocol II.[1][2]
Sources of law
Hague Conventions
The Hague Conventions are often cited for guidelines concerning the limits and privileges of an occupier's rights with respect to the local (occupied) property. One of the restrictions on the occupier's use of natural resources is the Article 50 prohibition against collective punishment protecting private property.
International law posits that no person may be punished for acts that he or she did not commit. It ensures that the collective punishment of a group of persons for a crime committed by an individual is forbidden...This is one of the fundamental guarantees established by the Geneva Conventions and their protocols. This guarantee is applicable not only to protected persons but to all individuals, no matter what their status, or to what category of persons they belong...
Modern legal systems usually limit criminal liability to individuals. An example of this is the prohibition on "Corruption of Blood" in the Treason Clause of the United States Constitution.[4] Moral philosophers will usually use notions of intention or knowledge to establish individual moral responsibility. This agency based theory from Kantian ethics may not be the only way to assess responsibility.[5]Ruth Gavison wanted the Israeli legal system to be based on the moral compass of Jewish heritage:[6]
"I hope that in another generation, when the Jewish children of today are sitting on the bench of the Supreme Court, they will know how to express Kant's Categorical Imperative in the 'Jewish' language of Hillel the Elder. When they want to strike down collective punishment, I hope they will be able to invoke the Jewish maxim: 'Each by his own sin will die'. not just universal literature on the subject."
Deterrence
Collective liability may be effective as a deterrent, if it creates the incentive for the group to monitor the activities of other members.[7] When collective fines are imposed on select groups of elites it can create an incentive for them to identify perpetrators but the effectiveness declines with an increase in the size of the group and their relative wealth.[8]
Richard Posner and others consider collective fines to be the most effective type of collective punishment for deterring bad behavior when they are sufficiently costly and target those in a position to identify perpetrators.[8]
Historically, punishment of family members was employed most often in the context of political crimes. In late Medieval Florence family groups could be punished collectively for treason, but not for other crimes. To preserve the Lombard law's historic mitigating impact on blood feuds an exception was made recognizing a collective responsibility for vendettas, in which case father, son and kinsmen were all held responsible.[9] During the Qin dynasty of China (221–207 BC) treason was punishable by what is known as nine familial exterminations – the execution of the perpetrator's entire families as well as the perpetrators themselves.
A cruel fiction of the lawyers to disguise the injustice of confiscation. The innocent grandson cannot inherit from the innocent grandfather, because his rights are corrupted and destroyed in passing through the blood of a guilty father. This corruption of blood is a fantastic idea; but there is a corruption too real in the understandings and the hearts of those who dishonor themselves by such sophisms.
Types
Collective fines
A collective fine like the weregild may create incentives for a group to identify perpetrators where they might not do so otherwise.[8]Richard Posner and others consider collective fines to be the most effective type of collective punishment.[8]
The frankpledge system of enforcement was by the 12th century established throughout much of the English realm. Cnut had organized the conquered peoples of England into "hundreds" and tithings, "within a hundred and under surety". Scholars do not know if the surety of Cnut's time was a collective or individual liability, or whether collective punishment was a feature of Anglo-Saxon law, before the Norman Conquest and the 12th century frankpledge system applied collective punishment to the whole tithing.[11] The 13th century Statute of Winchester (1285) stipulated "the whole hundred ... shall be answerable" for any theft or robbery.
Destruction of houses
According to W. R. Connor "the importance of the oikos in ancient Greece, an importance that goes far beyond the needs for physical shelter and comfort, is well known". The destruction of homes is then "especially awesome and charged with symbolic as well as practical meaning."[12]
The practice of the kataskaphai of houses is attested to by several ancient Greek sources. According to Plutarch's account of the murder of Hesiod (found in the Moralia) the house of the murderers was razed Greek: οὶκίαν κατέσκαψαν. When the Corinthians kill Cypselus they "razed the houses of the tyrants and confiscated their property", according to Nicholas of Damascus. Sources are inconsistent as to the razing of the Alcamaeonid houses. Of the many sources on the Cylonian conspiracy, only Isocrates mentions kataskaphe.[12]
There have been a large number of home demolitions in Israel since 1967. The legal arguments center on Regulation 119(1) of the Defense Emergency Regulations, an emergency law that dates to the British occupation under the Mandate for Palestine, by which Israel claims the legal authority for home demolitions by the Israeli Defense Force (IDF). In Alamarin v. IDF Commander in Gaza Strip the Israeli High Court of Justice held that the homes of Palestinians who have committed violent acts may be demolished under the Defence (Emergency) Regulations, even if the residence has other inhabitants who are unconnected to the crime.[13] The counterargument against the validity of the regulation is two-fold: firstly, that it should have been properly revoked by 1967 as an institution of the former colonial rule; secondly, that it is incompatible with Israel's modern treaty obligations.[3]
Targeting women
Some scholars consider the rape of German women by the Red Army during the Russian advance into Germany in 1945 towards the end of World War II as a form of collective punishment. Women were also targeted as a collective punishment for collaboration in Vichy France where photographs were taken of women stripped and paraded through the streets of Paris. A prostitute accused of serving the Germans was kicked to death.[14]
The only thing that can deter terrorists, like those who kidnapped the children and killed them, is the knowledge that their sister or their mother will be raped. It sounds very bad, but that's the Middle East.
Women are frequently targeted in the Kashmir conflict "to punish and humiliate the entire community". Even in well publicized cases like the Kunan Poshpora mass rape no action has been taken against perpetrators.[16]
History
18th century
The Intolerable Acts were seen as a collective punishment of Massachusetts Colony for the Boston Tea Party. Frederick North and the British Parliament supported collective punishment to deter any further challenges to their imperial authority by undermining support for what they saw as a quarrelsome minority in Massachusetts.[17]
V. To army corps commanders alone is entrusted the power to destroy mills, houses, cotton-gins, etc..., and for them this general principle is laid down: In districts and neighborhoods where the army is unmolested, no destruction of such property should be permitted; but should guerrillas or bushwhackers molest our march, or should the inhabitants burn bridges, obstruct roads, or otherwise manifest local hostility, then army commanders should order and enforce a devastation more or less relentless according to the measure of such hostility.[19]
The British (in the Second Boer War) and the Germans (in the Franco-Prussian War) justified such actions as being in accord with the laws of war then in force.[20]
20th century
World War I
The mass shootings of Nicholas Romanov's distant relatives after his abdication in 1917 and the shooting of the Romanov family themselves in July of the following year, 1918, were two such examples of this during World War I.
World War II
By Germany
Announcement of execution of 100 Polish roundup hostages, as revenge for the assassination of five German policemen and one SS member by Armia Krajowa resistance fighters in Nazi-occupied Poland. Warsaw, October 2, 1943
During the Nazi occupation of Poland, the Germans applied collective responsibility: any kind of help given to a Jewish person was punishable by death, and that not only for the rescuers themselves but also for their families. This was widely publicized by the Germans.[21][22] Communities were held collectively responsible for the purported Polish counter-attacks against the invading German troops. Mass executions of roundup (Polish: łapanka) hostages were conducted every single day during the Wehrmacht advance across Poland in September 1939 and thereafter.[23]
Germany also practiced a form of collective punishment against German families. Called Sippenhaft, the family members of Germans who were accused of acting against the state could be punished along with the accused.[24]
Against Germany
The expulsion of German speaking population groups after World War II by the Soviet Union, Poland and Czechoslovakia represent one of the greatest examples of collective punishment in terms of the number of victims. The goal was to punish the Germans;[25][26][27] the Allies declared them collectively guilty of Nazi war crimes.[28][29][30][31] In the US and UK the ideas of German collective guilt and collective punishment originated not with the American and British people, but on higher policy levels.[32] Not until late in the war did the US public assign collective responsibility to the German people.[32][full citation needed]
Stalin used the partial removal of potentially trouble-making ethnic groups as a technique consistently during his career: Poles (1939–1941 and 1944–45), Romanians (1941 and 1944–1953), Estonians, Latvians, Lithuanians (1941 and 1945–1949), Volga Germans (1941), Chechens, and Ingushes (1944). Shortly before, during and immediately after World War II, Stalin conducted a series of deportations on a huge scale which profoundly affected the ethnic map of the Soviet Union.[33] Between 1941 and 1949 the Soviet authorities deported an estimated nearly 3.3 million people to Siberia and to the Central Asian republics.[34]
In several armed conflicts the United Kingdom engaged during the 1950s, collective punishment was utilized as a tactic to suppress various insurgencies such as the Malayan Emergency, the Mau Mau Uprising, and the Cyprus Emergency. In 1951, the British government announced plans which stipulated that non-combatants found supporting the Malayan National Liberation Army would be subject to 'collective punishment'. During the Mau Mau Uprising, the colonial administration also utilised collective punishment as a tactic against the Kenya Land and Freedom Army, while in Cyprus (during the Cyprus Emergency) the British authorities adopted a tactic of home evictions and business closures in regions where British personnel had been murdered in order to obtain information about the identities of the murderers.[45][46][47]
Azerbaijan
Black January was a massacre of civilians committed by the Red Army in the Azerbaijan Soviet Socialist Republic in 1990. The Human Rights Watch report entitled "Black January in Azerbaijan" states: "Indeed, the violence used by the Soviet Army on the night of January 19–20 was so out of proportion to the resistance offered by Azerbaijanis as to constitute an exercise in collective punishment."[48]
Israeli–Palestinian conflict
Israel's use of collective punishment measures, such as movement restrictions, shelling of residential areas, mass arrests, and the destruction of public health infrastructure.[a] violates Articles 33 and 53 of the Fourth Geneva Convention.[49] Article 33 reads in part:
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[b]
Collective punishment of Palestinians also can be traced back to British mandatory techniques in suppressing the 1936–1939 revolt.[c] and has been reintroduced and in effect since the early days of the occupation, and was denounced by Israel Shahak as early as 1974.[50] Notoriety for the practice arose in 1988 when, in response to the killing of a suspected collaborator in the village, Israeli forces shut down Qabatiya, arrested 400 of the 7,000 inhabitants, bulldozed the homes of people suspected of involvement, cut all of its telephone lines, banned the importation of any form of food into the village or the export of stone from its quarries to Jordan, shutting off all contact with the outside world for almost 5 weeks (24 February – 3 April).[51] In 2016 Amnesty International stated that the various measures taken in the commercial and cultural heart of Hebron over 20 years of collective punishment have made life so difficult for Palestinians[d] that thousands of businesses and residents have been forcibly displaced, enabling Jewish settlers to take over more properties.[52]
21st century
Eritrea and Ethiopia
An anonymous former member of the Transitional Government of Tigray claimed that Ethiopia and Eritrea used the destruction of the Tigrayan economy as "a tactic to defeat the enemy", arguing they succeeded in taking the region "back 40 years"; Noé Hochet-Bodin of Le Monde described this as an act of "collective punishment".[53] On 27 Mary 2021, U.S. Assistant Secretary of StateRobert F. Godec made the argument that the EDF and ENDF had enacted "[what] amounts to the collective punishment of the people of Tigray" through a "campaign of unremitting violence and destruction".[54]
Beginning in mid-2022, and escalating after mobilization in September that same year, Eritrea engaged in a mass conscription campaign. Human Rights Watch reported that families of those who wished to avoid the draft became targets of collective punishment, with government authorities subjecting them to arbitrary detention and forced evictions from their homes.[55]
In North Korea, political prisoners are sent to the kwalliso concentration camps along with their relatives.[59][failed verification] North Korea's political penal labor colonies, transliterated kwalliso or kwan-li-so, constitute one of three forms of political imprisonment in the country, the other two being what Hawk (2012)[60] translates as "short-term detention/forced-labor centers"[61] and "long-term prison labor camps"[62] for misdemeanor and felony offences respectively. In total, there are an estimated 150,000 to 200,000 political prisoners housed within the North Korean imprisonment system.[60] In contrast to these other systems, the condemned are sent there without any form of judicial process as are their immediate three generations of family members as kin punishment[citation needed].
North Korea's kwalliso consist of a series of sprawling encampments measuring kilometers long and kilometers wide. The number of these encampments has varied over time. They are located mainly in the valleys between high mountains, mostly in the northern provinces of North Korea. There are between 5,000 and 50,000 prisoners per kwalliso, totaling perhaps some 150,000 to 200,000 prisoners throughout North Korea. The kwalliso are usually surrounded at their outer perimeters by barbed-wire fences punctuated with guard towers and patrolled by heavily armed guards. The encampments include self-contained closed "village" compounds for single persons, usually the alleged wrongdoers, and other closed, fenced-in "villages" for the extended families of the wrongdoers.
Pakistan
On May 20, 2008, the Pakistan Army conducted collective punishment against a village called Spinkai, located in the Federally Administered Tribal Areas of Pakistan. The operation was called 'zalzala', which is Arabic for earthquake. At first, the Pakistan Army swept through with helicopter gunships, artillery and tanks. After four days of heavy fighting, 25 militants and six soldiers died. The rest of the militants retreated up the valley. After the capture of the village the army discovered bomb factories, detonation-ready suicide jackets and schools for teenage suicide bombers.[63]
The Pakistan Army immediately decided to punish the village for harboring the Taliban and allowing the militants to operate in and from the village to conduct further terror attacks in Pakistan. Bulldozers and explosives experts turned Spinkai's bazaar into a mile-long pile of rubble. Petrol stations, shops, and even parts of the hospital were leveled or blown up. The villagers were forbidden from returning to their homes.[64]
South Africa
South Africa still retains the Apartheid-era law of common purpose, by which those who make up part of a group can be punished for the crimes of other group members, even if they were not themselves actively involved. In August 2012 this came to public attention when 270 miners were threatened with prosecution for participating in a demonstration. During the demonstration at the Marikana mine, 34 miners were shot by police. Many of the miners were armed. When prosecutors said they would pursue charges against other miners who were part of the protest, there was a public outcry.[65]
Syria
Throughout most of Syria's ongoing civil war, collective punishment has been a recurring method used by the Syrian government to quell opposition cities and suburbs throughout the country, whereby entire cities are besieged, shelled, and destroyed if that city is deemed as pro-opposition.
Upon retaking the capital Damascus after the 2012 Battle of Damascus, the Syrian government began a campaign of collective punishment against Sunni suburbs in-and-around the capital which had supported Free Syrian Army presence in their neighborhoods.[66][67]
In opposition-controlled cities and districts in Aleppo Province and Aleppo city, reports indicate that the Syrian government is attacking civilians at bread bakeries with artillery rounds and rockets, with the reports indicating that the bakeries were shelled indiscriminately.[68][69]Human Rights Watch said these are war crimes, as the only military targets wherever the few rebels manning the bakeries, and that dozens of civilians were killed.[70]
In Idlib province in the northwest of the country, entire cities were shelled and bombed for sheltering opposition activists and rebels, with the victims mostly civilians, along with heavy financial losses.[71]
^"The Palestine Red Crescent Society (PRCS) reported 174 documented attacks on their ambulances by Israeli soldiers and settlers between September 29, 2000, and March 15, 2002, resulting in the damage of 78 ambulances. There have also been 166 attacks on their emergency medical technicians (EMT), resulting in three deaths and 134 injuries among PRCS EMTs. Additionally, the PRCS headquarters in Al-Bireh was hit on several occasions by heavy machine gun fire from Israeli soldiers located at the nearby illegal Israeli settlement, Psagot." (Jamjoum 2002, p. 56)
^Article 53: "Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations." (Shahak 1974, p. 183)
^"The instability caused by the revolt was augmented by increasingly brutal measures taken during the British counterinsurgency campaign: emergency regulations, military courts, collective punishment, the demolition of houses (and indeed entire neighbourhoods), looting, revenge killings, and the like." (Likhovski 2017, p. 75)
^When the Beit Hadassah settlement was established without Israeli government authority, a barbed wire fence to protect settlers was erected in front of the shops and all Palestinian shoppers had to be frisked before entering them (Playfair 1988, p. 410).
References
^Garner, Bryan A., ed. (2007). Black's Law Dictionary (8th ed.). St. Paul, MN: Thomson West. p. 280. ISBN978-0314151995. Collective punishment was outlawed in 1949 by the Geneva Convention.
^Klocker, Cornelia. Collective Punishment and Human Rights Law: Addressing Gaps in International Law. Routledge.
^ abBacker, Larry Catá. "The Führer Principle of International Law: Individual Responsibility and Collective Punishment". Penn State International Law Review.
^"The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture"
^Molyneux, George (2015). The Formation of the English Kingdom in the Tenth Century. Oxford University Press. pp. 195–96.
^ abConnor, W. R. (1985). "The Razing of the House in Greek Society". Transactions of the American Philological Association. 115: 79–102. doi:10.2307/284191. JSTOR284191.
^Ulf Brunnbauer, Michael G. Esch, Holm Sundhaussen, Definitionsmacht, Utopie, Vergeltung, p. 92
^Karl Cordell, Andrzej Antoszewski, Poland and the European Union, 2000, p. 166, ISBN0-415-23885-4, ISBN978-0-415-23885-4 ' (Situation in Poland) "Almost all Germans were held personally responsible for the policies of the Nazi party"
^Arie Marcelo Kacowicz, Pawel Lutomski, Population resettlement in international conflicts: a comparative study, Lexington Books, 2007, pp.101–02. ISBN0-7391-1607-X
^ abFrancis R. Nicosia, Jonathan Huener "Business and industry in Nazi Germany", p.130,131
^"British to step up Malaya campaign; 1951 plans include 'collective punishment' for aiding Reds, rewards and more troops", The New York Times, December 17, 1950, p. 12
^"Labor's censure over Kenya fails", The New York Times, December 17, 1952, p. 16
^"Britain punishes Cypriote balking in informer role", The New York Times, March 17, 1956, p. 1
Jamjoum, Lama (2002). "The Effects of Israeli Violations During the Second Uprising "Intifada" on Palestinian Health Conditions". Social Justice. 29 (3): 53–72. JSTOR29768136.
