Point / Counterpoint: Made-to-measure 'collective punishment'

Counterpoint to:

Israeli collective punishment of people of Gaza must be ended

There is little doubt that Israel's economic strangulation of Gaza, constitutes collective punishment and is illegal under international humanitarian law."

Philip O'Conor
The Irish Times (Dublin)
August 21, 2008

Philip O'Conor, writing in The Irish Times, alleges that Israel is guilty of collective punishment. What picture comes to your mind when you think of collective punishment? George Mason University Law Professor Michael Krauss, responds powerfully:

On May 17, 1942, SS Obergruppenfuhrer Reinhard Heydrich was killed in Lidice, in the suburbs of Prague, Czechoslovakia  by a bomb thrown by Free Czech agents. The killing of Heydrich, the commander of the German invading forces, was clearly legal under international law. 

In response, the Gestapo and the SS killed over 1000 people suspected of being involved in the plot.  In addition, 3000 Jews were deported from the ghetto at Terezin (Theresienstadt, created by Heydrich) for immediate extermination.  In Berlin 152 Jews were ordered executed on the day of Heydrich's death.  Finally, on June 10, 1942 Lidice was ordered destroyed.  All 172 Czech men and boys over 16 were shot.  80 women were deported to Ravensbruch concentration camp, where almost all died.  90 young children who looked Aryan were distributed to German families, while others were shipped to Gneisenau concentration camp for extermination.  The village itself was then razed and its name removed from German maps."

Krauss describes several other incidents and notes that these atrocities were fresh in the minds of international diplomats at the end of the war when they drafted Article 33 of the Fourth Geneva Convention declaring collective punishment a war crime.

Kraus, who is also a member of Quebec's human rights commission, asserts that the Israeli government's reduction of fuel and electricity exports to the Gaza Strip is a far cry from collective punishment as described in the Geneva Convention.

Here's another highly regarded perspective. University of Chicago Economist and Nobel Prize Winner Professor Gary Becker and University of Chicago Law Professor and US Federal Judge Richard Posner have a joint Internet blog, on which Posner writes:

...it is extremely difficult for one nation to prevent an attack mounted by a terrorist group from the territory of a nation that has acted as the group's willing or unwilling host. That is why that nation [that hosts the terror group] is responsible for restraining the group...". And he continues, "...optimal collective punishment, when the cost of failing to prevent the wrongful is great, may be illustrated by Israel's policy of demolishing the houses of the families of suicide bombers. The suicide bomber himself is not deterrable, the harm he does is great, and the punishment method, while severe, is mild relative to the harm that a successful suicide bomber can inflict."

And in yet another perspective, Israel's internationally respected Supreme Court, which frequently rules against the government and compels it to alter its decisions, has rejected an appeal from several non-government organizations (NGOs) to block Israel from further reducing supplies of fuel and electricity to the Gaza Strip, stating that "...the damage [caused by attacks on Israel from Gaza] is not accidental, but rather a result of deliberate and frequent assaults on civilian populations which are aimed at harming innocent civilians. This is the difference between Israel - a democracy fighting for its life within the confines of the law - and the terror organizations trying to destroy it."

A similar sentiment was expressed by the government of Canada that voted against the United Nations Human Rights Council resolution condemning Israel's actions in the Gaza Strip. Canada's representative, explaining his government's opposition to the resolution, said: "This draft resolution focuses almost entirely on Israel while ignoring that party's legitimate security concerns."

What do all these instances demonstrate? Essentially that in contrast to Philip O'Conor's statement that "There is little doubt that Israel's economic strangulation of Gaza, constitutes collective punishment and is illegal under international humanitarian law", there is actually a great deal of doubt. It also demonstrates that O'Conor does not have a monopoly on quoting interpretations of the legitimacy of Israel's actions in Gaza.

O'Conor mentions various NGOs that claim that Israel's restrictions on Gaza have "produced the worst humanitarian crisis there since the occupation began in 1967."  Though the situation in Gaza may well be harsh, and in Israel's view it is self-inflicted, the exaggerated use of the term "worst humanitarian crisis" is sensationalist.

And, of course, sensationalism may well be O'Conor's intent. After all, it is not his only use of hyperbole. He also refers to "Israel's economic strangulation of Gaza", and "this unprecedented humanitarian crisis." 

Unprecedented? Really. And while it would be unacceptable for Israel to take comfort in any level of humanitarian hardship in Gaza, the fact is that the Palestinians of Gaza are suffering the consequences of their own actions.

Does this analysis refute Philip O'Conor's claim that Israel is employing illegal collective punishment against the Palestinians of Gaza? Probably not, and probably no argument ever could, as long as O'Conor uses his made-to-measure interpretation of 'collective punishment'.  This is because one of the characteristics of war is that if you look closely enough, and if you have a sufficiently vague set of definitions, you will find almost anything you are looking for, irrespective of which protagonist you are examining.

Posner offers a somewhat similar view. "Because warfare is inherently indiscriminate, innocent persons whose only connection to the fighting is that they live in the combat zone are unavoidably 'punished', but this is not collective punishment as a deliberate policy", he explains. (And even more so, in the case of Gaza, where the people who are affected are not persons whose only connection to the fighting is that they live in the combat zone.)

So, with their made-to-measure toolbox of definitions, and with the right mindset, Philip O'Conor, and his colleagues of the Ireland Palestine Solidarity Campaign will always be able to find collective punishment, apartheid, and ethnic cleansing in the Israel-Palestinian conflict. There is no major conflict in the world, past or present, where they couldn't do the same.