Gaza - Proportionality and Collective Punishment in International Law

In fact, poll after poll shows widespread collective support among the majority of the Palestinian population for suicide bombers and the destruction of Israel. In a poll just released, [1] the majority of Palestinian respondents 77.2% expressed support for the abduction of the Israeli soldier Gilad Shalit and 60.4% supported the continuation of indiscriminate firing of deadly Qassam rockets into Israeli towns. It is a denial of reality to assume that only a small group of terrorists could be involved in thousands of documented acts of terror in the past 10 years by Palestinians from all walks of life. It would be reckless to assume that these acts of terror are isolated, undertaken independently, without the direct involvement of the Palestinian populace and the leadership they opt to elect.

Israel often is portrayed in the media, by Western leaders, human rights activists and the many different organs of the United Nations as inflicting disproportionate and collective punishment on many Palestinians for the deeds of a few terrorists.

Ironically, the prohibition of imposing "collective penalties [punishment] ... intimidation and terrorism" Article 33 of the Forth Geneva Convention [2] talks about, refers to "protected person [s]" under occupation. But in the present case it needs to be applied to the innocent men, women, and children of the Israeli towns of Sderot and Ashkelon that are collectively punished day-in and day-out by Arab terrorists for "offences" they never "personally committed." As to "terrorism" the Article speaks about; it is the Israelis that fight to prevent Palestinian terrorism, and not the other way around.

Interestingly, the British in 1929 thought that collective punishment was a perfectly legitimate measure when inhabitants of Arab villages attacked the Jews. This collective punishment was not merely a single necessary step, but actually an existing ordinance of the British Mandate supported by the League of Nations, in dealing with Arab terrorism:

"Collective Punishments. The Collective Punishments Ordinances were applied to the [Arab] towns and villages whose inhabitants were guilty of participation in the concerted attacks on Jews at Hebron, Safad, Motza, Artuf, Beer Tuvia, and heavy fines were inflicted." [3]

Throughout history, Jews were law-abiding, peaceful people defending themselves against Arab aggression. In a 1946 Report, the Anglo-American Committee described its observation regarding Jews living in the land of Palestine:

"The Jew had to train himself for self-defence, and to accustom himself to the life of a pioneer in an armed stockade. Throughout the Arab rising, the Jews in the National Home, despite every provocation, obeyed the orders of their leaders and exercised a remarkable self-discipline. They shot, but only in self-defence; they rarely took reprisals on the Arab." [4]

Israel's reaction to Arab aggression is nothing more than a measured, fair response designed "to effectively terminate the attack [s]" by a conglomerate of Arab Palestinian terrorists, supported by Iran, Syria, and Lebanon, in order to "prevent its recurrence." [5]

Arab Palestinians, by their first use of armed force against Israeli civilians and non-combatant Jews in contravention of the United Nations Charter, constituted prima facie [Latin: on its face] evidence of an act of aggression - aggression being defined by international law as "the most serious and dangerous form of illegal use of force." [6]

Therefore, the rule of proportionality in this case of continuous aggression, needs to be met by Israeli acts that will 'induce' the wrongdoing aggressors to comply with its international obligations. A countermeasure need not be the exact equivalent of the breaching act. [7] Judge Schwebel, the former president of the International Court of Justice is quoted saying:

"In the case of action taken for the specific purpose of halting and repelling an armed attack, this does not mean that the action should be more or less commensurate with the attack." [8]

The perception among Palestinians - that politically motivated violence is legitimate and effective - is nothing new. From a broader perspective, if the Palestinians are rewarded with political gains following their acts of aggression, it can be expected that other radical groups will also make use of the suicide bomber model. Israel will no longer be the main target of such tactics. No one will be immune.

[1] JMCC Latest Poll, Poll no. 59 on Palestinian Attitudes Towards
The Abduction of the Israeli Soldier and Firing of Rockets, 9 July 2006.

See: http://www.jmcc.org/publicpoll/results/2006/no59.pdf.

[2] See: http://www.icrc.org/ihl.nsf/c525816bde96b7fd41256739003e636a/72728b6de56c7a68c12563cd0051bc40?OpenDocument

[3] From the report by His Majesty's Government in the United Kingdom of Great Britain and Northern Ireland to the Council of the League of Nations on the Administration of Palestine and Transjordan for the year 1929.

[4] Report of the Anglo-American Committee of Enquiry regarding the problem of European Jewry and Palestine. Lausanne, 20th April, 1946.

[5] See Harvard Journal of Law & Public Policy; 3/22/2002; Beard, Jack M.

[6] See UN GA Resolution 3314.

[7] United States Department of State, Draft Articles on State Responsibility, Comments of the Government of the United States of America,

March 1, 2001. See: http://www.state.gov/documents/organization/28993.pdf.

[8] Ibid.

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