Concomitant Prohibitions: Collective Punishment as the Origin of Other Violations of the Rights of Civilians under Belligerent Occupation

Abstract

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. Given this lack of clarity, it is no surprise that little attention has been paid to the way in which resorting to different forms of collective punishment during a belligerent occupation might lead to additional violations of international law, including IHL and international human rights law (IHRL). This article explores the notion of collective punishment under the law of occupation and connects it with other relevant rules of international law. Based on this analysis, and using the Occupied Palestinian Territory as a case study, the article argues that violating the prohibition of collective punishment in a situation of belligerent occupation in all likelihood will trigger the breach of other concomitant rules of IHL and IHRL, thus shedding light on the scope of the prohibition contained in Article 33 of the Fourth Geneva Convention.

Every man must pay for his own crimes. In the words of the prophet: ‘The soul that sins it shall die. The son shall not bear the iniquity of the father, neither the father bear the iniquity of the son; the righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him.’ Ezekiel 18:20 ¹

If we demolish the perpetrator's apartment we will simultaneously demolish the home of this woman and her children. We will thereby punish this woman and her children although they have done no wrong. We do not do such things here … We shall read into it and vest it with our values, the values of a free and democratic Jewish State. Justice Mishael Cheshin ²

1. Introduction: An Example of Mutual Influence

For well over a century, international humanitarian law (IHL) has categorically outlawed collective punishment. Article 50 of the 1907 Hague Regulations provides that ‘[n]o 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’.³ This prohibition was later enshrined in the 1949 Geneva Conventions and its 1977 Additional Protocols.⁴ It is also part of customary IHL⁵ and of the statutes of several international criminal tribunals.⁶ However, none of these sources provide a definition of what is to be deemed a collective punishment.

The first reference to collective punishments in the 1949 Geneva Conventions can be found in Article 87 of the Third Geneva Convention, which addresses the sanctioning of prisoners of war and forbids the imposition of certain types of penalty on this category of detainees. In its most recent authoritative comment on this clause, the International Committee of the Red Cross (ICRC) referred to the definition given by Black's Law Dictionary.⁷ There, a collective punishment is characterised as ‘[a] penalty inflicted on a group of persons without regard to individual responsibility for the conduct giving rise to the penalty’, a statement that is also pertinent in the case of belligerent occupation.⁸ The ICRC added that, to violate this prohibition, the measure in question ‘need not be unlawful’ and that ‘even lawful sanctions … would become unlawful if they are imposed on persons or entire groups for acts they have not committed’.⁹ This caveat is well founded in the case of prisoners of war, who are subjected not only to the effective control but also to the disciplinary authority of the Detaining Power.¹⁰ For instance, Article 89 of the Third Geneva Convention foresees as a possible disciplinary punishment the ‘[d]iscontinuance of privileges granted over and above the treatment provided for by the [Convention]’. It is easy to understand that suspending the prerogatives of a prisoner of war for disciplinary reasons will probably not be unlawful on its own, but would violate IHL if such prerogatives are withheld as part of a collective punishment. Hence, the prohibition of collective punishment contained in Article 87 of the Third Geneva Convention can be breached even if the measure is not illegal on its own.

The same caveat holds true in the case of Article 33 of the Fourth Geneva Convention. An Occupying Power shall not impose a collective punishment upon protected persons even if the sanction itself could be considered lawful. However, it is submitted that, in practice, every time an Occupying Power resorts to an act of collective punishment, in all likelihood it will breach other concomitant rules of international law. In other words, the fact of breaching the prohibition of collective punishment in an occupied territory is likely to transgress other applicable rules of international law. As is shown below, this assertion is intimately intertwined with the necessary complementarity between IHL and international human rights law (IHRL), including during situations of belligerent occupation. Israel constitutes a unique testing ground for this assertion.

Since the Six-Day War of 1967, Israel has occupied the West Bank, East Jerusalem and the Gaza Strip.¹¹ During the course of this over half-a-century-old belligerent occupation, Israel has often been accused of inflicting collective punishments on Palestinian civilians.¹² 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. Although IHL is the only branch of international law that explicitly prohibits collective punishment, other bodies of law could (and should) be taken into consideration when analysing such measures. This is particularly true in the case of IHRL. Hence, the scope of the analysis undertaken in this article is circumscribed by two premises: (i) the existence of a belligerent occupation, and (ii) the ongoing application of IHRL in occupied territories.

Whereas IHL applies only in situations of armed conflict (international or non-international) and belligerent occupation,¹³ IHRL applies at all times, including during military occupation.¹⁴ This view is supported by considerable state practice and by the jurisprudence of the International Court of Justice (ICJ) and the UN human rights bodies.¹⁵ In its seminal Wall advisory opinion, the ICJ stated the following:¹⁶

As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.

The ICJ added that IHL must be considered the lex specialis.¹⁷ While the exact meaning of this assertion has been extensively debated, and even contested,¹⁸ it seems fair to say that IHL and IHRL are ‘complementary legal regimes’, but that the notion of lex specialis remains an indispensable interpretative tool to try to resolve the ‘sometimes intricate legal questions of interplay that arise on the ground in concrete cases’.¹⁹ This means that, in the majority of cases, IHL and IHRL apply simultaneously and mutually reinforce each other.²⁰ However, when the two branches of international law lead to conclusions that are incompatible, priority should be given to the more specific norm.²¹

It is undeniable that international law as a whole should not assume a conflict between two different legal obligations whenever reconciliation can be achieved.²² Indeed, the Vienna Convention on the Law of Treaties provides that in the interpretation of a treaty, the parties must take into account ‘any [other] relevant rules of international law applicable’.²³ Against this backdrop, it has been argued that IHL and IHRL should be construed ‘in accordance with a sense of coherence and meaningfulness … in a way that allows, as far as possible, to view norms pertaining to different regimes as a single set of compatible obligations’.²⁴ However, practice shows that this systemic integration does not always hold sway. When ‘complementarity and mutual influence’ between IHL and IHRL is not possible, the more specific norm (lex specialis) must take precedence.²⁵ There are powerful arguments for maintaining this approach. Firstly, it can help to elucidate normative clashes and bring about a certain degree of legal security. Secondly, neither state practice nor international jurisprudence has clearly endorsed the abandonment of the lex specialis principle in favour of a ‘mixed [IHL-IHRL] paradigm’.²⁶ Finally, the jumble of legal paradigms can sometimes lead to ‘counterproductive results’, the most important of which is ‘widening the gap between normative developments and military needs’ in a way that paints ‘international law in “utopian” colors’.²⁷

In fact, the prohibition of collective punishment during belligerent occupation is a revealing example in this respect. It can shed some light on the complementarity of both legal regimes, as well as on the continuing importance of the notion of lex specialis. For instance, if one argued that the blockade of Gaza is a lawful military operation under the laws of war, it might not make sense to brandish the whole panoply of human rights allegedly trumped by Israel as a result of that very same act. This approach would not add ‘coherence and meaningfulness’ to international law. Instead, a systemic integration of both paradigms in this scenario could generate legal insecurity and give rise to unrealistic expectations.²⁸ On the contrary, if the blockade of Gaza could be considered a collective punishment or a breach of other IHL provisions, then this potential violation of the laws of war (the lex specialis) would arguably coexist with other violations of IHRL. Breaching the prohibition of collective punishment in this particular case would, by its nature, prompt the infringement of concomitant rules of international law.²⁹ Under those circumstances, the need for coherence within the different branches of international law would support the ‘complementarity and mutual influence’ of IHL and IHRL. A violation of the laws of war would simultaneously constitute a violation of human rights law.³⁰ Furthermore, the fact that actions running counter to the prohibition of collective punishment can give rise to other infringements of international law is also germane to the way in which such conduct might be prosecuted in domestic, regional and international tribunals.

This article seeks to provide some guidance on the interplay between IHL and IHRL when it comes to the imposition of collective punishments in occupied territories. It starts by revisiting the meaning of the prohibition of collective punishment, with special emphasis on the notions of deterrence and punitive intent (Section 2). It then uses the situation of the Occupied Palestinian Territory to demonstrate that alleged breaches of the prohibition of collective punishment could invariably be approached from the perspective of concomitant rules of international law. To this end, it explores how this prohibition interacts with the blockade of Gaza (Section 3.1), the restrictions of movement in occupied territories (Section 3.2), the policy of house demolitions of relatives of Palestinians who attack Israeli civilians or Israeli armed forces (Section 3.3) and the return of bodies of Hamas-affiliated fighters (Section 3.4). Neither the list of case studies nor the IHL and IHRL rules invoked in each section is intended to be exhaustive. Nevertheless, they help to illustrate the complexity of the prohibition of collective punishments. Other types of collective punishment would undoubtedly interact with different IHL and IHRL obligations. For instance, the article briefly mentions the fact that collective punishments could infringe constitutive elements of due process, such as the presumption of innocence or the principle of nulle poena sine culpa. At any rate, it should be emphasised that establishing the existence of any particular breach of international law would require a detailed case-by-case analysis of the factual situation, something that goes beyond the scope of this contribution. However, Section 3 should shed some light on both the scope of the prohibition of collective punishments and the way that breaching this prohibition might give rise to concomitant violations of international law.

Lastly, Section 4 concludes that the prohibition of collective punishment under the Fourth Geneva Convention (applicable in situations of belligerent occupation) shares with its counterpart in the Third Geneva Convention (applicable to prisoners of war) the fact that both can be breached even if the measure in question is not unlawful. Nevertheless, the article will also conclude that, at least in the case of the former, it is difficult to imagine a collective punishment that would not be simultaneously associated with additional IHL or IHRL violations. This, in turn, could have an impact on the way in which allegations of collective punishment are investigated and prosecuted.

2. Towards a Definition of Collective Punishment in Occupied Territories

As mentioned earlier, neither the Geneva Conventions nor customary IHL provide a definition of collective punishment. Article 33 of the Fourth Geneva Convention, applicable in occupied territories, simply states that ‘[c]ollective penalties and likewise all measures of intimidation or of terrorism are prohibited’. The sentence that immediately precedes this in Article 33 clarifies that ‘[n]o protected person may be punished for an offence he or she has not personally committed’. Furthermore, in its Commentary on Article 75(2)(d) of Additional Protocol I, which also prohibits collective punishments ‘at any time and in any place whatsoever’, the ICRC posited that the notion of collective punishment had to be understood ‘in the broadest sense’ and would cover ‘harassment of any sort, administrative, by police action or otherwise’.³¹

Despite the lack of a definition of collective punishment in IHL treaties or customary law, there are various elements that can be taken into consideration to elucidate the scope of this prohibition, which include (i) its link to the principle of individual criminal responsibility; (ii) its absolute nature, which outlaws any type of collective punishment, regardless of the purported objective for which it is imposed; and (iii) the existence of punitive intent. These three elements are outlined in the following subsections.

2.1. Collective Punishment and Individual Criminal Responsibility

It is a long-established principle of criminal law that no one may be convicted for an offence except on the basis of individual responsibility.³² Responsibility is always strictly individual and cannot become the burden of the entire population.³³ The prohibition of collective punishment is a corollary of this principle.³⁴ It can also be linked to the right to be presumed innocent until proven guilty according to law.³⁵ However, it is much broader in scope than either of these two legal notions in that it applies not only to criminal sentences pronounced by a court after due process of law, but also to sanctions of any type, including those of an administrative nature.³⁶

Needless to say, the prohibition of collective punishment does not apply to penalties that are imposed under due process of law and which respect the principles of fair trial, including an individualised finding of guilt.³⁷ In that sense the prohibition does not preclude the establishment of joint responsibility in the event of so-called ‘collective criminality’, for instance, when several individuals conspire to commit a crime.³⁸ Leaders, organisers, instigators and accomplices who participate in the planning or execution of an offence might all be found responsible therefor.³⁹ In such circumstances, the principle of individual criminal responsibility would not be violated and the punishment could not be considered arbitrary, provided that responsibility is determined separately for each person.

On the other hand, if an Occupying Power imposes a penalty on a group of protected persons without due regard to the principle of individual criminal responsibility, the penalty will also contradict the prohibition of collective punishment.

2.2. The Absolute Nature of the Prohibition

In its Commentary on Article 33 of the Fourth Geneva Convention, the ICRC considered that collective punishments are ‘in defiance of the most elementary principles of humanity’ and that ‘resorting to intimidatory measures’ is prohibited, even when the intention of the Occupying Power is to ‘forestall breaches of the law’ or ‘prevent hostile acts’.⁴⁰

The prohibition of collective punishment is absolute.⁴¹ Its peremptory nature is reinforced by the fact that it must be respected even during states of emergency or situations which threaten the life of the nation.⁴² This is why deterrence cannot be put forward as a justification to impose a collective punishment. In fact, by its nature, one of the purposes of any sanction will be to deter future perpetrators. In one of its landmark decisions, the International Criminal Tribunal for the Former Yugoslavia (ICTY) argued that the first purpose of any sentence for alleged war crimes was precisely ‘individual and general deterrence concerning the accused and, in particular, commanders in similar situations in the future’.⁴³ Therefore, the fact that a particular sanction ‘primarily [intends to deter] does not negate the possibility that it also serves as a form of punishment’.⁴⁴

The rationale of the prohibition of collective punishment is precisely to avoid the arbitrary punishment of entire groups for acts they have not committed, regardless of the underlying justifications. During the Second World War, Nazi Germany ‘carried out many forms of collective punishments to suppress and deter any resistance’.⁴⁵ From the perspective of the Nazis, the primary goal of their actions might have been to discourage or avert certain types of behaviour among the population of the territories they had occupied. However, arbitrary and indiscriminate sanctions were unanimously considered a form of collective punishment. This is the reason why, during the 1949 Diplomatic Conference of Geneva, states decided to reaffirm categorically the prohibition despite the fact that it would place ‘serious restrictions … on the ability of an Occupying Power to protect itself against illegal combatants’.⁴⁶

Such restrictions are the core of the laws of war, which are a carefully crafted balance between the principle of humanity and the principle of military necessity.⁴⁷ Indeed, the laws of war are ‘a compromise between military and humanitarian requirements’.⁴⁸ Hence, neither the need to seek a military advantage nor military goals can justify a departure from IHL.⁴⁹ Since striking at the innocent through a collective punishment was deemed particularly inhumane, it was decided that IHL would adhere to an absolute prohibition, one that no military objective (including deterrence) could lawfully overcome.

A parallel could be drawn with the prohibition of torture. Its unreserved nature cannot be dodged by arguing that torturing a detainee could save many innocent lives. Some might think that this utilitarian argument has a certain appeal during an ongoing armed conflict but, under international law, resorting to the ill-treatment of someone deprived of liberty will remain illegal in all circumstances.⁵⁰

2.3. A Comparative Look at the Notion of Punitive Intent

Another widely accepted element in identifying a violation of the collective punishment prohibition is that the act in question must have a punitive intent.⁵¹ However, as pointed out by the ICRC, ‘[a] punitive purpose can be said to exist not only when the punishment is motivated by the desire to sanction … but also, more generally, when it seeks to harass, intimidate or exert pressure on the group as a whole’.⁵²

It should be noted that, in line with what was mentioned earlier, the fact that the prohibition of collective punishment requires a punitive purpose does not mean that this must be the only objective of a given measure. The same measure can also be justified by a range of other reasons, such as security concerns or responding to the changing military needs of the armed conflict. However, if a punitive purpose underlies an indiscriminate punishment imposed upon a group of civilians in an occupied territory, then the measure in question is prohibited irrespective of the existence of other separate or ancillary purposes.⁵³ What is required is that one of the purposes of the measure is to collectively punish the individuals in question, including by way of sanctioning, harassing, intimidating or exerting pressure on them.

However, as with other IHL rules, the prohibition continues to be applicable even if, together with the punitive purpose, the Occupying Power aims to compel civilians to act in a particular way. Jurisprudence on the constitutive elements of the prohibition of collective punishment, including the notion of intent, remains scant. However, the Special Court for Sierra Leone (SCSL) provides an interesting example of the possible coexistence of intentions in a single act. In Prosecutor v Issa Hassan Ssesay and Others, the Trial Chamber analysed (among other issues) the killing of 63 civilians in Kailahun Town at the hands of the Revolutionary United Front. According to the Court, the massacre was ‘an act of violence committed with the specific intent to spread terror among the civilian population’, and thus should be considered an act of terrorism under the laws of war.⁵⁴ At the same time, the SCSL found that the act was also committed with ‘the aim of indiscriminately punishing civilians perceived to be … collaborators’ and, consequently, fell within the crime of collective punishment under the SCSL Statute.⁵⁵ Therefore, the Court accepted that the same measure could thus have multifaceted intentions.⁵⁶

Moreover, it is worth noting that the punitive intent can be inferred from certain acts and need not be explicitly acknowledged by the alleged perpetrator of an incident of collective punishment. For instance, it could be deduced from the actual consequences of the sanction for a group of people, or from the duration of the measure, or even from public statements of the authorities in charge of enforcing the punishment. A more restrictive approach to the notion of intent would lead to absurd results. It would suffice to claim that a collective punishment is imposed with the sole purpose of deterrence, or for security reasons, or simply to deny that it is a form of punishment, to effectively deprive civilians in occupied territories of their protection under the laws of war. Once more, an analogy with the prohibition of torture can contribute to illustrate this point. The pertinence of this comparison stems from the fact that, beyond the notion of mens rea or criminal intent common to any crime or offence, both the prohibition of torture and the prohibition of collective punishment require the existence of a specific purpose in order to be breached. Article 1 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides the following definition:⁵⁷

[T]he term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind.

To violate the prohibition of torture, the perpetrator must intentionally inflict severe pain or suffering on the victim for a specific purpose. However, to establish the existence of a specific intent ‘does not require direct evidence of the accused's mental state’ but can instead be inferred from the circumstances ruling at the time.⁵⁸ This has been the approach of the US judiciary, the Committee on Torture, and the international courts and tribunals.⁵⁹ For instance, in Prosecutor v Akayesu, the International Criminal Tribunal for Rwanda (ICTR) stated that ‘[o]n the issue of determining the offender's specific intent, the Chamber considers that intent is a mental factor which is difficult, even impossible, to determine’ and ‘[t]his is the reason why, in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact’.⁶⁰ When someone intentionally inflicts severe pain or suffering upon a victim with the aim of extracting a confession or punishing that person, this has been seen, as a rule, to violate the prohibition of torture.⁶¹ In fact, there is a certain consensus on the fact that torture can take place even if causing such level of harm is not the accused's main objective or purpose, as long as the act itself was intentional.⁶² The applicable intent standard would be that of acting ‘knowingly’;⁶³ that is, it is enough if the perpetrator is aware ‘that a circumstance exists or a consequence will occur in the ordinary course of events’.⁶⁴ It is submitted that a similar standard must be applied when assessing whether an act violates the prohibition of collective punishment.⁶⁵

Therefore, it cannot be argued that the prohibition of collective punishment is breached only when the act has the sole and unique intent (and, even less so, the self-avowed purpose) of sanctioning a group of people for acts that they have not committed. Instead, and in line with the yardstick contained in the Rome Statute, any act conducted in ‘awareness … that … a consequence will occur in the ordinary course of events’ might amount to a collective punishment,⁶⁶ provided that the said act is in effect punishing, intimidating or terrorising a group of individuals for acts they have not themselves committed or threatened to commit.

During the belligerent occupation of Kuwait during the First Gulf War, Iraqi armed forces reportedly conducted countless acts of retribution in several Kuwaiti cities. The main reason for these ‘horrible punishments’ was to deter entire neighbourhoods from their unwavering support for the Kuwaiti resistance movement.⁶⁷ Iraq never acknowledged that its intention was to impose a collective punishment on the population; rather, it saw its own actions as a way to subdue Kuwaiti resistance into submission.⁶⁸ However, these acts, by their own indiscriminate nature, were commonly considered a form of collective punishment, regardless of the self-declared intention of the Occupying Power.⁶⁹ The important aspect was that Iraqi armed forces were allegedly punishing, intimidating or terrorising Kuwaiti civilians for acts they had not themselves committed. The United States Department of Defense summarised it as follows:⁷⁰

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.

In this particular case, the punitive intent could be indisputably inferred from the actions of the Iraqi armed forces, even if the Occupying Power had other goals in mind, such as deterring acts of resistance or suppressing all forms of popular support to it.

All in all, it is clear that collective punishments are absolutely prohibited under international law. Although neither the Geneva Conventions nor customary IHL provide a definition of collective punishment, state practice, judicial decisions and scholars all tend to agree that the prohibition encompasses any sanction intentionally imposed upon groups or individuals for acts they have not themselves committed, in disregard of the principle of individual criminal responsibility. The punitive intent does not have to be acknowledged by the alleged perpetrator; nor does it need to be the sole purpose of the act. It suffices that this intent can be inferred from any type of sanction that aims to punish, intimidate or exert pressure upon particular individuals for acts they have not themselves committed or threatened to commit. In the same vein, and considering the ‘awareness’ standard enshrined in Article 30 of the Rome Statute, the intent can also be inferred when the authority imposing the collective punishment is cognisant of the fact that its actions in practice will punish, intimidate or exert pressure upon particular individuals for acts they have not themselves committed or threatened to commit.

In the next section we analyse how these elements could help in understanding the allegations of collective punishment in the Occupied Palestinian Territory, as well as the way in which this prohibition interacts with other rules of international law.

3. Concomitant Violations of the Rights of Civilians under Israeli Belligerent Occupation

International law bestows upon an Occupying Power the authority to maintain public order. However, the exercise of this authority must be balanced against the rights of the civilian population.⁷¹ One of the many limitations on the discretion of the Occupying Power is precisely the need to respect the laws in force in the (occupied) country.⁷² At the same time, Article 64 of the Fourth Geneva Convention recognises that domestic laws may be repealed or suspended if they constitute an obstacle to the application of the Convention itself. Against this backdrop, scholars have argued convincingly that an Occupying Power is, in fact, obliged to abolish legislation and institutions which contravene not only the law of occupation itself, but also international human rights standards.⁷³ This obligation is also a corollary of the duty to respect (as much as possible) IHRL in occupied territories, as discussed in the introduction to this article.

Israel contests the allegations of collective punishment that have been thrown its way. It has often claimed that the measures labelled as such by certain actors were justified by security needs, or by the need to prevent acts of terrorism, or that they were based on laws that were already in force in the Occupied Palestinian Territory before the occupation began in 1967. From the perspective of international law, and in line with the elements outlined above, none of these arguments would be crucial for establishing the existence of a collective punishment. Indeed, given that the prohibition of collective punishment is absolute, it cannot be breached under the auspices of deterrence or other military considerations. Moreover, legislation that contradicts IHL is always illegal, regardless of whether it was enacted before the application of the law of occupation. The same goes for legislation which glaringly violates IHRL.⁷⁴

This section will focus on how possible infringements of the prohibition of collective punishment in an occupied territory would, by their nature, raise concomitant breaches of the rights of civilians. For that purpose it will focus on certain provisions of international law – with limited references to domestic law, in particular, the so-called ‘emergency powers’.⁷⁵ This methodological decision is based on the specific purpose of this article: namely, to illustrate how the fact of breaching the prohibition of collective punishment contained in Article 33 of the Fourth Geneva Convention in all likelihood will become the source of other violations of international law. The approach of focusing on international law is justified by the fact that, at any rate, a state shall not ‘invoke the provisions of its internal law as a justification for its failure to perform a treaty’.⁷⁶

3.1. The Gaza Blockade

In June 2007, following the takeover of Gaza by Hamas, Israel imposed a land, air and sea blockade of the strip.⁷⁷ Among many other things, Israel drastically restricted access to ‘food, fuel, cooking gas canisters, spare parts for water and sanitation plants, and medical supplies’ for the 1.8 million Palestinians living there.⁷⁸ Despite the loosening of certain restrictions in recent years, the Gaza blockade has continued to undermine the living conditions of its inhabitants and fragmented its economic and social fabric.⁷⁹

Outside Israel there seems to be wide consensus regarding the unlawfulness of the blockade under international law. For instance, the ICRC has repeatedly stressed the daunting humanitarian consequences of the closure and has considered that ‘[t]he whole of Gaza's civilian population is being punished for acts for which they bear no responsibility’; therefore the situation ‘constitutes a collective punishment imposed in clear violation of Israel's obligations under [IHL]’.⁸⁰ Similar legal readings have been put forward by the UN Secretary General, the UN Special Rapporteur on the situation of human rights in the Palestinian territory, and a myriad of states.⁸¹ These assertions have been commonplace since the 1970s, when Israel's belligerent occupation of the Palestinian territory was in its early stages.⁸²

One of the domestic legal underpinnings for the blockade are the Defence (Emergency) Regulations, promulgated during the British Mandate in 1945. Regulation 125 foresees the establishment of ‘closed areas’. According to this norm:⁸³

A Military Commander may by order declare any area or place to be a closed area for the purposes of these Regulations. Any person who, during any period in which any such order is in force in relation to any area or place, enters or leaves that area or place without a permit in writing issued by or on behalf of the Military Commander shall be guilty of an offence.

Even fervent proponents of the Defence (Emergency) Regulations have highlighted that the discretion of military commanders ‘must be reasonable’, rooted in clear military needs, and take into due consideration the human rights of all those affected.⁸⁴

It should be noted that blockades per se are not prohibited by the laws of war. However, as with sieges, they are lawful only ‘when directed exclusively against an enemy's armed forces’.⁸⁵ One of the consequences of this is that, during active hostilities, civilians should be allowed, whenever feasible, to leave the besieged area, in line with the IHL principle of precaution.⁸⁶ They should also be allowed to receive rapid humanitarian relief, but the Occupying Power retains a right to control and oversee the content of the relief consignments.⁸⁷

In order to determine whether the Gaza blockade constitutes a collective penalty, one would need to decide whether it is intentionally punishing Palestinian civilians for acts they have not themselves committed. In this particular case, certain Israeli officials have reportedly stated that the blockade aims at delegitimising Hamas vis-à-vis the population, ‘set[ting] a price for every Qassam [rocket], in terms of cutting off infrastructure and water’ and ‘putting the Palestinians on a diet’.⁸⁸ However, the official position of Israel remains that the blockade is justified in view of the security situation in the Gaza strip and does not seek to punish the civilian population.⁸⁹

Be that as it may, and as the criteria to assess punitive intent are not set in stone, any legal analysis must consider all the factual elements at stake. In the absence of an explicit acknowledgement, which will rarely occur during any ongoing armed conflict, it is important to reflect on whether the siege of Gaza is de facto punishing, intimidating or exerting pressure upon certain individuals for acts they have not committed.

At any rate, a blockade must take into account the humanitarian consequences for the population affected by it.⁹⁰ In fact, it has even been argued that a blockade would be unlawful if the intended military advantage is outweighed by the heavy toll imposed upon civilians.⁹¹ However, and although entering into such discussions would be well beyond the scope of this article, it must be reiterated that if a particular act amounts to a collective punishment, it will be forbidden by the laws of war, regardless of any anticipated military advantage or proportionality assessment. In addition, it is submitted that the foreseeable consequences of a blockade upon the population at large might arguably constitute an indicative criterion to determine the existence of a punitive intent.

The blockade of an occupied territory (or parts thereof) could give rise to other IHL violations. For instance, apart from collective punishments, Article 33 of the Fourth Geneva Convention also outlaws ‘all measures of intimidation’ against protected persons, as well as reprisals against civilians and their property. Although the notion of reprisals is not defined in IHL treaties, it is understood to include acts that aim to induce a party to an armed conflict to discontinue its own violations of the laws of war.⁹² Whereas the purpose of collective punishment is to make a group of persons ‘pay the price for the behavior of one or more individuals or groups’, reprisals are not punitive in nature.⁹³ Instead, they seek to compel an adversary to respect the laws of war.⁹⁴

Nevertheless, reprisals are subject to very stringent conditions. They must be exceptional, used only as a last resort, and proportionate to the initial IHL violation of the opposite party which they aim to stop.⁹⁵ Furthermore, reprisals are always prohibited when they are directed against persons protected by the Geneva Conventions.⁹⁶ If the purpose of besieging Gaza is to force Hamas and other militant groups to comply with the laws of war and stop their indiscriminate attacks against Israeli civilians, then the blockade might well constitute an act of reprisal. However, as Palestinian civilians and civilian objects are directly affected by it, such reprisals would arguably be unlawful under IHL.

To a certain extent, a blockade imposed by a party to an armed conflict upon its enemy can also be examined from the prism of economic sanctions. Neither IHL, in general, nor the prohibition of collective punishments, in particular, bar the use of economic sanctions.⁹⁷ However, the laws of war do not allow the attack, destruction, removal or rendering useless of objects indispensable for the survival of the civilian population.⁹⁸ This norm protects civilians not only from starvation, but also from deprivation or insufficient supply of certain essential commodities, including agricultural areas for the production of food, crops, livestock, drinking water installations and irrigation works, to name but a few examples.⁹⁹ A blockade that breaches this obligation is unlawful under IHL, regardless of whether or not it (also) constitutes a collective punishment.

More importantly, a violation of the prohibition of collective punishment through a military blockade could infringe a range of IHRL duties. As argued in the introduction, IHL and IHRL are complementary legal regimes. It is submitted that, in the case of means and methods of warfare, IHL constitutes the lex specialis.¹⁰⁰ This implies that if a blockade is perfectly lawful under the laws of war, it might not make sense to invoke certain human rights obligations vis-à-vis the party imposing it – by its own nature, placing an area under siege will lead to hardship for its population and hamper the full enjoyment of some rights. For instance, it might restrict the right to freedom of movement of the civilians living inside the besieged area. In such a scenario – namely, if the blockade is lawful according to IHL – some of the constraints it creates would probably not constitute violations of international law. On the other hand, if a blockade amounts to an act of collective punishment – and, hence, transgresses IHL, the lex specialis – then it is only logical to ponder even more closely the way in which that same act might contravene other concomitant IHL rules, as well as other branches of international law.

Another way to look at this is by determining the scope of human rights obligations of an Occupying Power. Although the applicability of IHRL to situations of belligerent occupation is widely accepted, scholars have posited that ‘the substantive elements of the obligations and the assessment of whether a violation has occurred, must be determined in the light of the context, including both the situation on the ground and legal restraints’.¹⁰¹ Whereas a lawful military blockade, no doubt, is a context in which certain IHRL norms are difficult to implement, a blockade that amounts to a collective punishment could not possibly contribute to mitigate the human rights obligations of an Occupying Power – although other unrelated contextual elements might.¹⁰²

IHL already imposes certain duties upon the Occupying Power in respect of the right to education, public health, food, work or freedom of religion.¹⁰³ However, IHRL regulates all these matters in far greater detail. If a blockade breaches the prohibition of collective punishment, it will inevitably hinder the application of other concomitant rules of international law, most notably IHRL.

Article 55 of the Fourth Geneva Convention, for instance, simply provides that the Occupying Power has the duty to ensure ‘[t]o the fullest extent of the means available to it … the food and medical supplies of the population’. The 1966 International Covenant on Economic, Social and Cultural Rights goes one step further. It recognises ‘the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’.¹⁰⁴ In addition, it obligates state parties to ‘recognize the fundamental right of everyone to be free from hunger’ and:¹⁰⁵

[t]o improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources.

The Committee on Economic, Social and Cultural Rights has added that, as a consequence of the above, states must not only ensure ‘the availability of … food in quantity … and quality sufficient to satisfy the dietary needs of individuals’, but also ‘the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights’.¹⁰⁶ An Occupying Power would breach its obligations under the right to food if its behaviour affects the means of production, including ‘by displacing farming or fishing communities’ or by ‘paralyzing the transport network that allows supplies to be distributed’.¹⁰⁷ As can be seen, IHRL proceeds well beyond, and enhances, the provisions of the laws of war. It creates an additional set of responsibilities regarding access to resources and means of production.¹⁰⁸

Needless to say, many of these obligations cannot be fulfilled during a siege, especially if it is protracted. Indeed, the least that can be said about the blockade of Gaza is that it has not led to the ‘continuous improvement of living conditions’ for the Palestinians affected by it. Therefore, if the blockade were to be considered a form of collective punishment, or even an act of reprisal or a measure of intimidation, then the necessary complementarity between IHL and IHRL would be even more robust. The violation of the laws of war, the lex specialis, in all likelihood would trigger concomitant breaches of IHRL.

With regard to health, the laws of war stipulate that an Occupying Power must:¹⁰⁹

ensur[e] and maintai[n], 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.

Once more, IHRL is far more precise and complete, thanks partly to the work and mandate of the Committee on Economic, Social and Cultural Rights, as well as of regional human rights bodies. The ICESCR enshrines the right of every person to ‘the enjoyment of the highest attainable standard of physical and mental health’.¹¹⁰ This is considered to include a myriad of entitlements regarding the functioning of public health and healthcare facilities, goods and services; accessibility of health facilities; the scientific and medical quality of the services; the training and skills of medical personnel; and the right to maternal, child and reproductive health, among others.¹¹¹

Any collective punishment in the form of a blockade is bound to infringe certain aspects of the multifaceted nature of the right to health. Furthermore, IHRL considers that states must not take retrogressive measures in relation to the right to health.¹¹² It also limits the permissibility of instruments of political and economic pressure that might have an impact on the right to health, and establishes that states ‘should refrain at all times from imposing embargoes or similar measures restricting the supply of … adequate medicines and medical equipment’.¹¹³ If the blockade of Gaza were to be considered a collective punishment, its full impact on the fulfilment of the right to health under IHRL would also need to be assessed. For instance, it has been reported that fuel cuts made by Israel in response to security threats have obstructed medical services, water infrastructure and sewage treatment.¹¹⁴ In addition, they are said to have severely affected the functioning of the healthcare system.¹¹⁵

Similar remarks could be made about the right to work,¹¹⁶ children rights, the right to self-determination,¹¹⁷ and even the right to development.¹¹⁸ It is important to reiterate that IHL typically assumes that an occupation will be short-lived. If a belligerent occupation extends over several decades, the Occupying Power acquires additional obligations with regard to the fulfilment of the human rights of the population placed under its effective control.¹¹⁹

All in all, it is undeniable that a siege will interfere with many IHRL obligations. Although the above-mentioned examples are non-exhaustive, they illustrate that a breach of the prohibition of collective punishment in the form of a blockade will inevitably give rise to concomitant violations of international law, including human rights law. As will be seen in the next subsection, the same can be said about less stringent policies on movement and residency.

3.2. Residence Permits and Restrictions of Movement

The laws of war are somewhat permissive in allowing an Occupying Power to impose collective movement restrictions short of a blockade, such as curfews or temporary travel bans, and they confer a broad discretion upon military commanders.¹²⁰ Article 78 of the Fourth Geneva Convention even foresees the possibility of subjecting protected persons to assigned residence or internment, if this is justified by imperative reasons of security. In a similar vein, Regulation 124 of the above-mentioned Defence (Emergency) Regulations provide that:

[a] Military Commander may by order require every person within any area specified in the order to remain within doors between such hours as may be specified in the order and, in such case, if any person is or remains out of doors within that area between such hours without a permit in writing issued by or on behalf of the Military Commander or some person duly authorized by the Military Commander to issue such permits, he shall be guilty of an offence against these Regulations.

However, as in the case of blockades, this discretion is never unlimited and should not be exercised in an arbitrary manner.¹²¹ The commander must consider the measure to be essential for public order or for the security of the area in question, and ensure that there are no less harsh alternatives.¹²²

Israel has often faced criticism for the way in which it has controlled and restricted population movements throughout the Occupied Palestinian Territory. The system of short-term and long-term curfews, together with the existence of physical barriers, checkpoints and administrative permits has seriously constrained the mobility of civilians and has often separated them from their communities, farmlands and private property.¹²³ It has also imposed a heavy toll on Palestinians seeking medical assistance outside their places of residence.¹²⁴ In some cases, these restrictions were put in place as a direct response to indiscriminate attacks against Israeli citizens, but reportedly remained in place long after the alleged perpetrators had been arrested.¹²⁵

Once again, if such measures are fully in line with the laws of war (the lex specialis), it might be overstretched, and legally unsound, to link Israeli actions to a panoply of IHRL norms. On the other hand, in the event that any of those restrictions amounts to collective punishment, it is only logical to scrutinise its impact on the human rights of Palestinians living in occupied territory. The key element in making this determination would be whether the restriction of movement in question is knowingly imposed with a view to punish, intimidate or exert pressure upon protected persons for acts they have not themselves committed.¹²⁶ As mentioned earlier, an actor that flouts the prohibition of collective punishment will not necessarily acknowledge such violation. However, a punitive intent can sometimes be inferred from the factual elements of the case.

Although a case-by-case analysis would remain necessary to determine whether a specific collective punishment might lead to concomitant breaches of international law, it seems that some specific violations are indeed likely to occur. To start with, imposing movement restrictions that amount to collective punishment could violate the right to freedom of movement of citizens of the Occupied Palestinian Territory. Article 12 of the International Covenant on Civil and Political Rights (ICCPR) states that ‘everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence’. The ICCPR itself and the United Nations Human Rights Committee recognise that this right may be restricted on national security grounds, which would certainly include the vicissitudes of an armed conflict.¹²⁷ However, any measure amounting to a collective punishment would be unlawful under international law, and could not possibly be justified on security grounds. As mentioned earlier, IHL is a balance between the principles of military necessity and humanity. Hence, security considerations cannot be put forward as a valid reason to violate the laws of war.

In Rashed Morar v IDF Commander in Judaea and Samaria, the Supreme Court of Israel discussed the legality of an order issued by a military commander, which prohibited Palestinian private owners of fields from entering their land to cultivate it. The commander justified his decision on military grounds and security.

In her analysis of the case, Justice Beinisch considered that freedom of movement had been recognised ‘both as an independent basic right and also as a right derived from the right to liberty’, as well as ‘a basic right in international law’.¹²⁸ She added that as the plaintiffs were requesting access to land on their own property, ‘especially great weight should be afforded to the right to the freedom of movement and the restrictions imposed on it should be reduced to a minimum’. Interestingly, Justice Beinisch also made the link between those limitations and the right to property, in the following manner:¹²⁹

Therefore, the residents in the territories held under belligerent occupation have a protected right to their property. In our case, there is no dispute that we are speaking of agricultural land and agricultural produce in which the petitioners have property rights. Therefore, when the petitioners are denied access to land that is their property and they are denied the possibility of cultivating the agricultural produce that belongs to them, their property rights and their ability to enjoy them are thereby seriously violated.

A similar link between the right to freedom of movement and the right to use and enjoy property was also made by the European Court of Human Rights in Loizidou v Turkey.¹³⁰ Although neither this case nor the Rashed Morar case addressed the issue of collective punishment, they both provide a glimpse of how restriction of movement amounting to collective punishment under IHL could interact with the right to freedom of movement and the right to property under IHRL.¹³¹

In a more recent case, the Jerusalem District Court was asked to review the decision of the Israeli Ministry of Interior to deny a permanent residence permit to a Palestinian woman whose son had reportedly stabbed an Israeli Border Police officer.¹³² In a riveting piece of advocacy for the principle of individual criminal responsibility, the Court considered that the son's act could not account for the punishment imposed upon his mother and that, consequently, there were ‘no arguments … pointing to any sort of personal liability on the part of the petitioner’.¹³³ The legal rationale of the ruling was closely linked to the constitutive elements of the prohibition of collective punishment.

Justice Shaham considered that, apart from tampering with the principle of individual criminal responsibility, the decision of the Ministry of Interior to deny a residence permit to the petitioner would also infringe her right to family life, as it would separate her from her husband and the rest of her children, who lived in Jerusalem. In addition, Justice Shaham considered that endorsing such policies would be discriminatory, as the petitioner fulfilled all the legal and administrative requirements to be granted a residence permit. He added that ‘given the importance of a person's legal status’, as well as the fact that denying the petitioner's request would leave her in a ‘legal limbo’, the decision of the Ministry of Interior would violate her right to ‘equality and dignity’.¹³⁴

The prohibition of collective punishment was also upheld by the Israeli High Court of Justice in a case of assigned residency. Israeli security regulations allow military commanders to instruct a person under special supervision ‘to live within the confines of a certain place in the Area to be detailed by the military commander in the order’.¹³⁵ This provision, in turn, is based on Article 78 of the Fourth Geneva Convention, which authorises an Occupying Power to subject a protected person to assigned residence or internment ‘for imperative reasons of security’.¹³⁶ In Ajuri and Others v IDF Commander in Judaea and Samaria, the High Court of Justice analysed the situation of three Palestinians from the West Bank who had been ordered to move to Gaza under such security regulations. One of the individuals affected by the decision was the brother of a Palestinian searched by the Israeli security forces for allegedly participating in several terrorist attacks against civilians.

In its decision, the High Court of Justice argued that assigned residence under IHL was a lawful measure only when taken against individuals who themselves represented a security threat, as the contrary would amount to arbitrary detention.¹³⁷ The Court added that the measure could not be used against innocent civilians for the purposes of ‘deter[ing] other terrorists from carrying out acts of terror’.¹³⁸ Although the prohibition of collective punishment was only implicitly invoked, the sentence was clearly inspired by, and in line with, this aspect of the laws of war. Moreover, a contrary decision arguably might have violated the prohibition of forced displacement, as prohibited acts of forced displacement include those stemming from actions that are themselves illegal under the laws of war.¹³⁹

All in all, it is clear that if a restriction of movement or denial of a residence permit is knowingly imposed with a view to punish, intimidate or exert pressure upon protected persons for acts they have not themselves committed, it would violate the prohibition of collective punishment enshrined in the Fourth Geneva Convention. This would open the door to an array of concomitant IHL and IHRL violations, including those of the rights to freedom of movement, to property, to family life, to equality, and to dignity, as well as the prohibition of forced displacement and the prohibition of arbitrary deprivation of liberty.

3.3. Punitive House Demolitions

The policy of punitive house demolitions in the Occupied Palestinian Territory has been thoroughly explored in the academic literature.¹⁴⁰ The policy allows military commanders to destroy the homes of relatives of Palestinians who have harmed (or attempted to harm) Israeli security personnel or Israeli civilians. House demolitions have been taking place since 1967 and have been widely denounced as a form of collective punishment, including by some of the most prominent Israeli scholars and by international organisations such as the United Nations and the ICRC.¹⁴¹ Even judges of Israel's Supreme Court have adopted the same view in certain dissenting opinions.¹⁴² This criticism, together with doubts about its effectiveness, led the military authorities to place a moratorium on the use of the policy in 2005.¹⁴³ Nevertheless, the policy was reintroduced in 2014, following an increase in terrorist attacks.¹⁴⁴

According to Israel, the legal underpinning of this practice is Regulation 119(1) of the Defence (Emergency) Regulations, enacted during the British Mandate, which states:

A Military Commander may by order direct the forfeiture to the Government of Palestine of any house, structure, or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, detonated, exploded or otherwise discharged, or of any house, structure or land situated in any area, town, village, quarter or street the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court offence; and when any house, structure or land is forfeited as aforesaid, the Military Commander may destroy the house or the structure or anything in or on the house, the structure or the land.

House demolitions are routinely ordered by military commanders, through an administrative proceeding. Although the Israeli Supreme Court has reviewed many of these administrative orders, its judicial review has been mostly circumscribed to procedural aspects and issues of proportionality, as opposed to a detailed assessment of the legality of the policy under domestic and international law.¹⁴⁵

The Israeli Supreme Court has generally endorsed the self-avowed purpose of the policy: namely, to deter future terrorist attacks.¹⁴⁶ However, scholars have questioned the deterrence effects of house demolitions and even argued that the practice is ‘likely to create an atmosphere of hate that would breed the next generation of terrorists’.¹⁴⁷ It should be noted that the policy has been implemented even when the alleged terrorist is already dead, and that, at any rate, those who bear the repercussions of the demolition are ‘owners of the house to be demolished [and] family members who reside in the house, even if they are not at fault and they pose no security threat’.¹⁴⁸

Be that as it may, any house demolition that affects the relatives of a terrorist would amount to a collective punishment under international law if its effect were to punish, intimidate or terrorise individuals, in this case the family or community, for acts that they have not themselves committed. As mentioned earlier, the IHL prohibition of collective punishment is absolute, and cannot be justified for the purposes of deterrence.¹⁴⁹

In a recent (and very welcome) piece of jurisprudence, Israel's High Court of Justice rejected the demolition of a house on the basis that the Palestinian wife of the alleged terrorist and her eight children were ‘not accused … of any involvement whatsoever in the criminal deeds of the father’.¹⁵⁰ The majority of judges considered that the demolition would constitute a severe violation of a series of ‘fundamental rights, including harm to property, human dignity and a succession of rights deriving from human dignity’.¹⁵¹ Furthermore, Justice Karra considered that ‘[t]he continued use of this measure inflicting severe harm on innocent people constitutes collective punishment imposed contrary to … fundamental rule[s]’.¹⁵²

There is no doubt that if the destruction of the home of a protected person amounts to collective punishment, it will give rise to a myriad of other international law violations. Firstly, it would trigger additional violations of the laws of war. For instance, as with the case of the blockade of Gaza, a punitive house demolition amounting to collective punishment could also violate the prohibition on reprisals against protected persons.¹⁵³ Moreover, it could also infringe IHL provisions upholding the right to property. Article 46 of the Hague Regulations states that ‘[f]amily honour and rights, the lives of persons, and private property … must be respected’.¹⁵⁴ An analogous international legal obligation can be found in Article 53 of the Fourth Geneva Convention, which prohibits the destruction of private property ‘except where such destruction is rendered absolutely necessary by military operations’.¹⁵⁵

Indeed, Israel's policy of punitive house demolitions could violate the protection afforded to private property under the law of occupation. The purpose of deterring future terrorist attacks seems to fall well below the threshold of being ‘absolutely necessary by military operations’.¹⁵⁶ Most notably, the policy is not at all related to ongoing combats or fighting of any sort, but rather to sporadic acts of violence that have already taken place, and is always implemented outside the conduct of hostilities. Therefore, it cannot be justified as a lawful act underpinning a military operation in progress, which is the only exception contemplated by Article 53 of the Fourth Geneva Convention.¹⁵⁷

The right to property is also enshrined in IHRL. As mentioned earlier, private property is protected by the Universal Declaration of Human Rights and some consider it as part of customary international law.¹⁵⁸

In view of the complementarity between IHL and IHRL, and taking into consideration the fact that punitive house demolitions amounting to collective punishment will always be illegal under the law of occupation, it is legitimate to consider whether this policy also violates other human rights. The answer seems to be in the affirmative, at least in relation to the rights to housing and to family life, the right of children and, most importantly, the right to non-discrimination.

Several IHRL provisions protect the right to housing. For instance, Article 17 of the ICCPR states that ‘[n]o one shall be subject to arbitrary or unlawful interference with his … home’, whereas Article 11(1) of the ICESCR safeguards the ‘right of everyone to an adequate standard of living for himself and his family, including adequate … housing’. The UN Committee in charge of monitoring compliance with the ICESCR has considered that the right to housing, which stems from the right to an adequate standard of living, ‘is of central importance for the enjoyment of all economic, social and cultural rights’ and is intimately intertwined with the right to live in peace and dignity.¹⁵⁹ Needless to say, security of tenure constitutes a key element of this right.¹⁶⁰ A punitive house demolition amounting to a collective punishment under the laws of war is bound also to violate this IHRL norm.¹⁶¹

The same goes for the right to family life. Article 23 of the ICCPR recognises that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state. A punitive house demolition could trump many of the substantive elements of this right, such as choice of residence.¹⁶² Moreover, it could also violate a state's negative obligation to abstain from interference with the family life of individuals under its jurisdiction.¹⁶³

In the case of Akdivar v Turkey, the European Court of Human Rights (ECtHR) argued that the destruction of houses by Turkish armed forces amounted to a ‘serious interference with the right to respect for their family lives and homes and with the peaceful enjoyment of their possessions’.¹⁶⁴ In Yordanova and Others v Bulgaria, the same tribunal condemned the forced eviction of Roma families from their residences, contending that it would violate their right to family life. The Court further argued that the eviction was unlawful on the basis that it was not motivated by the ‘individual conduct’ of those being expelled and, as such, the act ‘would be nothing less than a collective punishment on the basis of ethnic origin’.¹⁶⁵ As forced evictions are a prerequisite of punitive house demolitions, the fact that the ECtHR linked the former to a prohibited collective punishment is also particularly telling.

Scholars and international organisations have raised similar concerns regarding Israel's policy of punitive house demolitions.¹⁶⁶ It has also been argued that the policy could violate the state obligation to abide by the best interest of the child, as well as the prohibition against subjecting children to ‘arbitrary or unlawful interference with [their] family [and their] home’.¹⁶⁷

In addition, and depending on the specific circumstances of the case, the current implementation of the policy of house demolitions could violate one of the cornerstones of IHRL: namely, the principle of equality and non-discrimination, which is widely accepted as part of customary international law.¹⁶⁸ Among many other provisions, this principle is enshrined in Article 7 of the Universal Declaration of Human Rights and Article 26 of the ICCPR. The latter states that ‘[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law’. Equality and non-discrimination are considered essential in promoting and fulfilling the whole panoply of human rights that protect individuals.¹⁶⁹ Interestingly, the policy of house demolitions has never been applied to Israeli settlers and their families who have harmed or attempted to harm others.¹⁷⁰ Despite sporadic surges in violence spurred by Jewish settlers against Palestinian civilians – a situation that the Shin Bet, Israel's security agency, has labelled ‘Jewish terror’¹⁷¹ – military commanders have never ordered the demolition of the homes of Jewish citizens who have committed indiscriminate acts of violence against Palestinians, even after the perpetrators had been criminally convicted in a court of law for some of these acts.¹⁷² This might indicate somehow that Israel's efforts to deter acts of terrorism are not applied equally among the different communities living in East Jerusalem, Judea and Samaria.¹⁷³

3.4. Return of Human Remains

Israel has also been accused of inflicting collective punishment upon persons protected by the Fourth Geneva Convention by withholding the bodies of deceased Palestinian militants,¹⁷⁴ a policy that is practised equally by Hamas in the Gaza strip regarding the mortal remains of Israelis.¹⁷⁵ Once again, the logic of deterrence seems to underlie this decision. According to Israeli government officials, preventing the return of the bodies of the deceased could ‘deter potential attackers’, whereas sending them back, on the other hand, could ‘send the wrong message’.¹⁷⁶

Nevertheless, as mentioned in other examples analysed in this article, the withholding of human remains would violate the prohibition of collective punishment if it knowingly sanctions, harasses, intimidates or exerts pressure upon protected persons who have committed no crime or pose no security threat. Once again, and depending on the circumstances of the case, such punishment could trigger a range of IHL and IHRL concomitant violations.

Under the laws of war, parties to an armed conflict must do everything they can to ‘facilitate the return of the remains of the deceased upon the request of the party to which they belong or upon the request of their next of kin’.¹⁷⁷ IHL also obliges parties to an armed conflict to dispose of the deceased in a respectful manner, which includes the need to comply with the burial rites prescribed by the religion of the deceased.¹⁷⁸ Since IHL is already a well-crafted balance between military necessity and the principle of humanity, states are bound by it at all times, even if the alleged rationale for not respecting its provisions is to obtain mortal remains held by an enemy. In the words of Theodor Meron, prominent scholar and former Principal Legal Adviser to the Israeli Ministry of Foreign Affairs: ‘Often, return of the bodies for an honorable burial is treated as a bargaining chip, as shameful leverage for what is in effect ransom’.¹⁷⁹

The withholding of bodies might also infringe rules that outlaw humiliating and degrading treatment, as well as the prohibition of cruel and inhuman treatment, under both IHL and IHRL.¹⁸⁰

Human rights law has no specific provisions dealing with the fate of mortal remains.¹⁸¹ However, some of its general rules protect not only the human dignity of the deceased, but also the rights and suffering of their relatives.¹⁸² In particular, the withholding of mortal remains either as a ‘bargaining chip’ or for the purposes of deterrence would run counter to the right to family life and the right to freedom of religion.

The jurisprudence of the European Court of Human Rights has been particularly fruitful in this respect. In Panullo and Forte v France, the Court held that once a body was no longer needed for investigative purposes, it had to be returned to the relatives, who could then proceed to bury it in a dignified manner. It argued that the conduct of the French authorities constituted an interference that could not be deemed ‘necessary in a democratic society’ and, as such, violated the right to private and family life of the applicants.¹⁸³ In Kushtova and Others v Russia, the ECtHR posited that such practices were ‘particularly severe’ when they precluded the family from participating in the relevant funeral ceremony or denied them the right to be informed of the whereabouts of the grave.¹⁸⁴ In fact, similar decisions have emphasised that the right to family life includes an entitlement to attend the burial of close relatives and that preventing a relative from doing so is not justified, even in the absence of bad faith.¹⁸⁵

The focus on the right to family life indicates that emphasis is placed on the relatives’ right to ‘go through their grieving process in ways that are not disrupted by the State’.¹⁸⁶ That said, this same question has also been linked to the inherent dignity of the deceased in the afterlife.¹⁸⁷ Furthermore, some ECtHR cases have also been linked to the prohibition of collective punishment, despite the absence of a specific norm to this effect in the European Convention on Human Rights, or indeed in other IHRL treaties.¹⁸⁸

In the same vein, the withholding of mortal remains of a Palestinian militant could breach the right to freedom of religion of the relatives of the deceased. Article 18(1) of the ICCPR provides that ‘[e]veryone shall have the right to freedom of … religion’,¹⁸⁹ which includes the freedom, ‘either individually or in community with others and in public or private … to manifest [his] religion or belief in worship, observance, practice and teaching’.¹⁹⁰ According to the Human Rights Committee, this right encompasses ritual and ceremonial acts that give direct expression to a person's belief, as well as various practices integral to such acts.¹⁹¹

Needless to say, a family that is unable to bury the mortal remains of a loved one cannot carry out ritual services or memorials in accordance with their beliefs and, hence, cannot enjoy its right to freedom of religion. In Johannische Kirche and Peters v Germany, the ECtHR held that preventing religious individuals from burying a family member in line with their beliefs could violate their freedom of religion, as burial ceremonies are such an essential part of religious life.¹⁹²

All in all, it would seem that if the withholding of mortal remains is performed in a manner that knowingly sanctions, harasses, intimidates or exerts pressure upon protected persons who have committed no crime or pose no security threat, the act will not only violate the prohibition of collective punishment, but might also interfere with numerous other international law obligations, including IHL duties to facilitate the return of the deceased at the request of the next of kin and to dispose of the remains in a respectful manner, as well as the rights to family life and to freedom of religion under IHRL.

4. Concluding Observations

Whether a particular sanction or measure can be considered a collective punishment and, therefore, a violation of IHL will depend on the extent to which it knowingly punishes, intimidates or exerts pressure upon protected persons for acts they have not themselves committed or threatened to commit. Parties to a conflict that impose collective punishments are unlikely to acknowledge their punitive intent. Furthermore, this punitive intent may coexist with other purposes, such as considerations of security and deterrence. However, it is submitted that as with the prohibition of torture, a punitive intent can sometimes be inferred from the factual elements of the case, which would also require a case-by-case analysis.

By definition, collective punishments contradict the principle of individual responsibility. As mentioned above, it is generally acknowledged that this principle must be upheld by an Occupying Power not only in relation to criminal sanctions, but also to administrative measures. Moreover, it should be remembered that the prohibition of collective punishment is absolute; therefore, it cannot be justified on the ground of deterrence.

It seems incontrovertible that breaching the prohibition of collective punishment in an occupied territory is likely to give rise to a myriad of concomitant violations of international law. This is intimately intertwined with the complementarity between IHL and IHRL, including during belligerent occupation, as well as with the need to ensure coherence among the various branches of international law. Using the examples of the Gaza blockade, the restrictions of movement in the Occupied Palestinian Territory, Israel's policies of house demolitions and the retention of human remains, this article has outlined the way in which such measures – which have often been regarded as prohibited collective punishments by scholars, international organisations and civil society – are bound to breach additional IHL and IHRL provisions.

Therefore, the subsections above illustrate some of the reasons why imposing a collective punishment upon protected persons is incompatible with other duties incumbent upon the State of Israel. Indeed, collective punishments might contravene existing international legal obligations in respect of constraints on the use of reprisals; the rules regulating access to healthcare; the prohibition against attack, destruction, removal or rendering useless objects indispensable for the survival of the civilian population; the right to work; children's rights; the rights to self-determination, to development, to freedom of movement, to property, to family life, to an adequate standard of living (which includes the right to housing); the prohibition of forced displacement and of arbitrary deprivation of liberty; the duty to bury the dead in a dignified manner; and the principles of equality and non-discrimination, to name some examples.

However, this list does not purport to be exhaustive. The prohibition of collective punishments is so fundamental, and its underlying rationale is so inextricably intertwined with the notion of human dignity, that the imposition of collective punishment on a protected person might tamper with additional rules of international law. It has repeatedly been pointed out, for instance, that collective punishment transgresses several due process requirements: it is not only incompatible with the principle of individual responsibility, but it may also infringe ancillary judicial guarantees, including the presumption of innocence, the right of appeal or the principle of nulle poena sine culpa.¹⁹³

Additionally, scholars, international organisations, civil society and even members of Israel's judiciary have gone as far as identifying a link between certain forms of collective punishment and the prohibition of torture and cruel, inhumane and degrading treatment. For instance, Professor Mordechai Kremnitzer of the Hebrew University of Jerusalem considers Israel's policy of punitive house demolitions to be ‘unjust and inhuman’,¹⁹⁴ whereas the United Nations deems it incompatible with Israel's obligations under Article 7 of the ICCPR, which outlaws all forms of cruel, inhuman or degrading treatment or punishment.¹⁹⁵ Justice Karra of the Israeli Supreme Court has held that the policy ‘inflict[s] severe harm on innocent people’.¹⁹⁶ Similar admonitions have been advanced with regard to the other illustrative cases mentioned above, apart from the policy of punitive house demolitions itself. For instance, Justice Shaham of the Jerusalem District Court posits that violations of the prohibition of collective punishment in the form of refusing residence permits to innocent Palestinians is incompatible with the need to respect human dignity.¹⁹⁷ The same goes for the unjustified retention of human remains¹⁹⁸ and for certain consequences of the Gaza blockade, such as the physical and mental suffering caused to terminally ill Palestinian civilians who are unable to receive adequate medical treatment as a result of movement restrictions imposed upon them.¹⁹⁹

The ECtHR has repeatedly made the link between the notion of collective punishment (which is not explicitly mentioned in IHRL treaties) and the prohibition of torture and inhuman or degrading treatment or punishment.²⁰⁰ Although the threshold for the latter needs to be analysed on a case-by-case basis, it is very telling that collective punishments have so often been associated with different forms of ill-treatment. It is submitted that this constitutes a clear indication of the seriousness of this prohibition and reinforces the idea that collective punishments are, as pointed out earlier, ‘in defiance of the most elementary principles of humanity’.²⁰¹ However, the differences and similarities between the prohibition of collective punishment and the prohibition of torture deserve to be further explored.

The above considerations might also have a significant impact on issues of international jurisdiction. The prohibition of collective punishments is listed as a grave IHL violation in the statutes of several international and hybrid tribunals,²⁰² but it is not explicitly mentioned in the Rome Statute of the International Criminal Court, nor by any of the treaties that have created an IHRL regional body or monitoring mechanism.²⁰³ That said, the fact that infringing the prohibition of collective punishment gives rise to a broad range of concomitant violations of international law indicates that such acts may be, and at times have been, prosecuted under different legal categories in international and regional tribunals.²⁰⁴

According to scholars, the use of collective punishment in the Occupied Palestinian Territory could come within a variety of war crimes, including that of extensive destruction and appropriation of property not justified by military necessity; direct attacks against the civilian population; destruction or seizure of enemy property not justified by imperative military necessity; and inhuman treatment.²⁰⁵

As mentioned in the introduction, even lawful sanctions become unlawful if they amount to collective punishment. However, persons protected under the Fourth Geneva Convention are entitled not only to the safeguards of IHL, but also, in so far as possible, to those of human rights law, especially when the occupation is protracted.²⁰⁶ It is hard to imagine an example in which a collective punishment imposed upon protected persons in occupied territory would not simultaneously breach additional IHL and/or IHRL norms, and possibly other branches of international law, such as international criminal law.²⁰⁷ Therefore, it appears that any collective punishment in the Occupied Palestinian Territory is bound to transgress other international obligations incumbent upon the State of Israel.

Recent jurisprudence of the District Court of Jerusalem and the Supreme Court of Israel seems to offer an opportunity for better compliance with the country's domestic law and international legal obligations. As shown in the previous sections, Israeli judges have questioned the lawfulness of practices that seem to contravene the prohibition of collective punishment, including the policies of punitive house demolition and denial of residence permits for relatives of alleged Palestinian terrorists.²⁰⁸ Until now, most of these views have constituted dissenting opinions. However, as the recently deceased Justice Ruth Bader Ginsburg, of the US Supreme Court, wisely commented: ‘Dissents speak to a future age … But the greatest dissents do become court opinions and gradually, over time, their views become the dominant view’.²⁰⁹ It remains to be seen whether future Israeli jurisprudence on the issue of collective punishment subscribes to this dissenter's hope.