Monday, October 16, 2023

No, Israel isn't engaging in "collective punishment" under international law

Ken Roth, the former Human Rights Watch head, tweeted:

"International humanitarian law prohibits collective punishment of...protected persons for acts committed by individuals during an armed conflict. The imposition of collective punishment is a war crime." -- Red Cross @ICRC
He gave the source  from the ICRC - and it proves the opposite  of his attempt to paint Israel as guilty.

The first paragraph, which he skips, defines collective punishment:
The term refers not only to criminal punishment, but also to other types of sanctions, harassment or administrative action taken against a group in retaliation for an act committed by an individual/s who are considered to form part of the group. Such punishment therefore targets persons who bear no responsibility for having committed the conduct in question.
The word "retaliation" makes it sound as if the action must be done deliberately as a punishment, not as a consequence of going after the actual guilty party.

For example, if a terrorist group gets its arms flown in on flights t a commercial airport, a nation can bomb that airport runway - even if it means that legitimate airplanes cannot land. It definitely affects innocent people but it is not collective punishment, because that is not the intent. 

Similarly, other dual use targets - power stations, TV and radio broadcast stations - may be attacked if they are also used by the combatant. (All of these are subject to proportionality analysis, as with any military action.)

Looking at specific legal rulings listed the ICRC, we see that collective punishment was defined quite clearly by the Special Court for Sierra Leone:

224. The Appeals Chamber finds that the correct definition of collective punishments is:
i) the indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible;
ii) the specific intent of the perpetrator to punish collectively.
Although sometimes individual politicians have said stupid things in the heat of argument, but Israel has made it clear in its policy and actions that it has no intention of hurting the Gaza population for anything Hamas has done. 

This brings up a bigger question. In many points of international law, such as the principle of distinction, proportionality and even genocide,  the intent of the parties is paramount in determining guilt. No one is a mind reader so the only evidence we have on intent is the actions - if they can be explained without resorting to malicious intent, then such intent should not be assumed. On the other hand, if there are other examples where the malice is clear, due to what parties said or because their other actions leave no other explanation, then one can assume the intent is malicious. 

With Israel, NGOs and people like Ken Roth always assume malicious intent - which they have never done for Hamas. 

This is how people can quote international law to damn Israel. Even when they quote everything accurately, they are assuming Israel is breaking the rules and therefore they interpret intent in that way.

And if you automatically assume that only the Jewish state has malicious intent against civilians in war, especially when there are thousands of counterexamples that prove otherwise, that pretty much make you an antisemite.

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