Collective punishment
Collective punishment is a punishment or sanction imposed on a group or whole community 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]
Not to be confused with Collective responsibility.Sources of law[edit]
Hague Conventions[edit]
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.
Geneva Conventions[edit]
According to Médecins Sans Frontières:[3]
Types[edit]
Collective fines[edit]
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[edit]
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[edit]
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]
Responding to the 2014 murder of three Israeli teenagers kidnapped near the settlement of Alon Shvut, Israeli professor Mordechai Kedar said:[15]
"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[edit]
18th century[edit]
The Intolerable Acts were seen as a collective punishment of the 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]
Collective fines were imposed on Edinburgh as punishment for the Porteous riots during which Captain John Porteous was lynched.[18]
19th century[edit]
The principle of collective punishment was laid out by Union General William Tecumseh Sherman in his Special Field Order 120, November 9, 1864, which laid out the rules for his "March to the sea" in the American Civil War:
