By Michael I. Krauss, Professor of Law, George Mason University. February 29, 2008.
On May 17, 1942, SS Obergruppenfuhrer Reinhard Heydrich was killed in the
suburbs of Prague, Czechoslovakia by a bomb thrown by Free Czech agents
trained in England. The killing of Heydrich, the commander (“Deputy Reich
Protector of Bohemia and Moravia”) of invading forces, was clearly legal under
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
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.
The massacre at Lidice, along with other Nazi atrocities such as the killing of
the entire population (642) of Oradour-sur-Glane, France two years to the day
after Lidice (to punish the village for Resistance activities) and the horrific
massacres of Serbian civilians by SS Prinz Eugen division troops for supporting
the resistance movements, continued a sad German tradition .
These atrocities were fresh in the minds of international diplomats after the end
of the War. Article 33 of the Fourth (1949) Geneva Conventions enshrined
collective punishment as a war crime, emphasizing individual responsibility:
Article 33. 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 are prohibited. Pillage is prohibited. Reprisals against
protected persons and their property are prohibited.
Article 52 of the Convention’s Additional Protocol I (adopted in 1977)
similarly states that “Civilian objects shall not be the object of attack or of
The doctrine of collective punishment has died hard, despite the Fourth
Convention’s clear insistence on individual responsibility. Arab states expelled
the majority of their Jewish populations in reprisal for Israel’s successful
self-defense in the War of Independence.
Britain arguably used collective punishment against villages where
Communist rebels had been concealed in Malaya in 1951, and again to
suppress the Mau Mau uprising in Kenya in 1952.
Hafez El-Assad of Syria notoriously destroyed half of the conservative
Sunni city of Hama (massacring 20,000 men, women and children) as collective
punishment for a Muslim Brotherhood uprising against his Alawi regime in
The Israeli Government’s reduction of fuel and electricity exports to the Gaza
Strip has recently been termed a modern instance of collective punishment that
violates Israel’s obligations under the laws of war. In a lawsuit filed by Israeli
and Palestinian civil rights groups before Israel’s Supreme Court, these
organizations asked the Supreme Court to make Israel end fuel restrictions that
caused power blackouts in the Gaza Strip.
The activists argued, as did representatives of many members of the
Security Council in their special meeting on the Middle East on January 22,
2008, that the restrictions constitute collective punishment of Gaza’s 1.5
million people and violate the Fourth Geneva Convention.
But this claim is nonsense, and makes a mockery of international law. This is so
for the following reasons:
1. It conflates failure to aid with active criminal harm. Acts of war are launched
daily against Israel from Hamas-run Gaza. Bombs are lobbed against Israeli cities
(especially Sderot), resulting in official government rejoicing when an Israeli
civilian is killed or maimed. Hamas denies Israel’s right to exist, and has
masterminded countless acts of war against military and civilian targets in
2. The Jewish state has the uncontested right to defend itself against such acts
of war. The bar on collective punishment forbids the imposition of criminal or
military penalties (imprisonment, death, etc) on some people for crimes
committed by other individuals.
But ceasing trade with a country is not inflicting a criminal or military
penalty against that country’s citizens, not least because those citizens have no
entitlement to objects of trade that they have not yet purchased. If Canada
tolerated and celebrated car-bombings of Buffalo from Fort Erie, Ontario, the
United States could cease exporting cars to Canada – such cessation of trade
was never contemplated as collective punishment, because it is not a military or
a criminal sanction. The United States quite legally froze trade with Iran after
that country committed an act of War against the USA following the 1979
3. Even prevention of access of goods coming from third parties is not
collective punishment: the U.S. blockade of Cuba after they installed nuclear
missiles directed at the United States was not a collective punishment of the
Cuban people, it was a non-violent act of war in self-defense.
In any case, Israel has made no effort to prevent Gaza from receiving
electricity from Egypt; it has merely declined to furnish this assistance itself.
Article 49 of the Geneva Conventions clearly does not outlaw such acts. The
current misuse of the term in the Security Council would have exactly that
4. The electricity withheld from sale was a military tool. Article 52 of the 1977
Amendment to the Geneva Convention explicitly countenances attacks on
legitimate military objectives, which are “those objects which by their nature,
location, purpose or use make an effective contribution to military action and
whose total or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military advantage.”
As Israel has pointed out, its (minor) reduction in electricity sold means
that “Hamas will have to decide whether to provide electricity to hospitals or
weapons lathes.” Diesel will be allowed in to fuel ambulances, sewage pumps,
generators and garbage trucks, but gasoline will be restricted. According to
estimates, Israel still exports approximately US$ 500 million worth of goods and
services into the Gaza Strip each year.
The claim is Newspeak. The charge of collective punishment is appropriately
leveled against one side in the Israeli-Palestinian dispute; but that side is not
As Joseph Klein recently pointed out in a Front Page Magazine article, the
innocent Israeli women and children slaughtered while going about their daily
lives in homes, schools, on buses and at shopping malls are not warriors
against the Palestinian people. They are in large number the victims of the
Hamas’ measures of collective punishment against Jews — intimidation and
terrorism, which violate their most basic of human rights – life itself.
Indeed, Israel has targeted the perpetrators of these atrocities individually,
entirely in conformity with its international obligations. When Israel kills such
targets, precisely the people who have individually committed acts of war
against Israel, it highlights the difference between legal force and collective