OCTOBER 11 — “We are putting a complete siege on Gaza ... No electricity, no food, no water, no gas — it’s all closed,” Israeli Defence Minister Yoav Gallant said on Monday in a video statement.
Gaza is an overcrowded enclave of 2.3 million people. It is one of the most densely populated areas in the world.
What Gallant ordered is a blockade against a civilian population which inherently raises concerns of collective punishment because of the effect that prohibiting food and other essentials may have, particularly over the long run, on the survival of that population.
Broadly defined by Shane Darcy as “a punitive sanction inflicted on a group of persons without regard to individual responsibility for the deed or event which provokes the penalty,” collective punishment has been outlawed since the Hague Convention at the turn of the twentieth century. (“Prosecuting the War Crime of Collective Punishment: Is It Time to Amend the Rome Statute?”, (2010) 8 J. Int’l Crim. Just. 29).
Collective punishment was widely used against civilians during the First and Second World Wars. It led to the Geneva Conventions of 1949 which set forth comprehensive protections proscribing the use of group sanctions against prisoners of war and civilians in occupied territory.
Under Article 33 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949, 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 ... against protected persons and their property are prohibited.”
The use of collective punishment of protected persons is clearly prohibited, the breach of which constitutes war crimes.
Who are “protected persons”? They are civilian individuals who find themselves, in case of an armed conflict or occupation, in the hands of a power of which they are not nationals. (Encyclopaedia of Public International Law, Vol. III, p 1144)
The most vulnerable — the sick, the elderly, women and children — will bear the brunt, not those responsible for the attacks against Israel. Isn’t what Gallant ordered a collective punishment of a civil population?
The international legal community considers the prohibition on collective sanctions to be customary international law, which has been defined as “rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act in that way”, and therefore binding on all states. (See Shabtai Rosenne, Practice and Methods of International Law, Oceana Publications (1984) p 55).
International human rights law, relating to the basic rights of all humans everywhere and at all times, also forbids imposition of collective punishment. According to Andrew L. Strauss, the numerous human rights conventions and humanitarian international law prohibit collective punishment. (“Overcoming the Dysfunction of the Bifurcated Global System: The Promise of a People Assembly”, (1999) Transnat’l & Contem. Probs, pp 489, 502)
The American Convention on Human Rights, for example, contains provisions banning the use of collective punishment.
Yet the leaders of the US, UK, France, Germany and Italy have expressed “steadfast and united support” for Israel and “unequivocal condemnation” of Hamas.
When Russia imposed a blockade of Ukrainian ports last year alleging, among others, drone attacks against its Black Sea Fleet off the coast of occupied Crimea, US President Joe Biden called it a “really outrageous” act.
Hundreds of ships involved in grain exports were blocked. It cut off urgently needed grain exports from one of the world’s breadbaskets to hungry parts of the world.
Biden warned that global hunger could increase from the blockade of ships carrying grain.
“It’s really outrageous,” Biden said. “There’s no merit to what they’re doing,” he added.
Hamas forces may have committed war crimes, particularly the indiscriminate attacks against Israeli civilians. But these attacks in no way justify or excuse Israel’s own violations of international law. According to George E. Bisharat, Israel’s violations bore far more devastating consequences both for lives and for the status of international law. (“Israel’s Invasion of Gaza in International Law”, (2009) 38 Denv. J. Int’l L. & Pol’y 41)
“We are fighting against human animals and are acting accordingly,” said Gallant in Hebrew.
The Malays have a saying, “mengata dulang paku serpih, mengata orang dia yang lebih”. It is the pot calling the kettle black.
What Gallant ordered is the collective punishment of a civilian population, which is a war crime as well as potentially a crime against humanity and the crime of genocide.
No human would do that. And no human would be steadfast and united in support of a perpetrator of a war crime.
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
