On Sunday, the tenth day of Israel’s search for three teenagers kidnapped June 12, Deputy Defense Minister Danny Danon (Likud) said he was in favor of a “wide-reaching operation against the civilian population” of Gaza and the West Bank.
Acknowledging that his idea was “harsh,” he suggested that the ends justified the means, and that disrupting the Palestinians’ lives – for example by cutting off electricity for a few days — would be helpful in focusing the world’s attention on the missing teens.
With such statements, Danon is sure to stand out among Israel’s right-wingers, but the move would clearly be in violation of international law, according to Robbie Sabel, a former legal adviser to Israel’s Foreign Ministry and a professor of international law at Hebrew University.
“This would be collective punishment, which is illegal. It’s bad advice, and we shouldn’t do it,” he said, adding that the government had not adopted Danon’s position and was unlikely to do so in the future.
But what about the actions Israel has already been taking? Does the IDF operation in the West Bank, which includes incursions, arrests, restrictions of movement and other measures, amount to collective punishment?
The Palestinian Authority and several human rights groups started claiming just that, soon after Isael launched Operation Brother’s Keeper aiming to locate and return the teens, and weaken Hamas, the terrorist organization that Israel blames for the abduction. Soldiers have searched hundreds of locations in the West Bank and arrested more than 350 Palestinians, most of them Hamas members. So far, four Palestinians, including a 14-year-old boy, have been killed in clashes with Israeli troops.
The PA, while assisting in the search for the missing teens, condemned the ongoing arrests of Hamas operatives and closures in the West Bank as collective punishment on the Palestinians. In a statement issued Thursday by PA President Mahmoud Abbas’s office, the wide-ranging operation was denounced as “an excuse” to impinge on Palestinian rights. This, even though Abbas has demanded that the kidnapped teens be freed and provided security cooperation with Israeli forces in the hunt for them.
For its part, Amnesty International on Tuesday accused Israel of having imposed “a number of measures that clearly constitute collective punishment on Palestinians in the Occupied Palestinian Territories.”
And the argument is also finding traction at home. On Sunday, 11 Israeli human rights groups, including the Association for Civil Rights in Israel, B’Tselem, Breaking the Silence and Physicians for Human Rights, wrote a letter [Hebrew] to Defense Minister Moshe Ya’alon and Public Security Minister Yitzhak Aharonovich arguing that the army’s actions “raise serious concerns of unwarranted infringement on basic rights and collective punishment,” and asking the ministers to reassess their operational orders to the Israeli security forces.
According to the Fourth Geneva Conventions, Article 33, no civilian “may be punished for an offence he or she has not personally committed.” Hence, “collective penalties” are illegal under international humanitarian law and thus considered a war crime.
According to Amnesty, the imposition of a “complete closure” of the Hebron district — where the search operation has focused — prevents some 750,000 Palestinians from moving freely in the area. “Thousands of residents of the Hebron district who have permits to work inside Israel or in Israeli settlements cannot reach their places of employment. Residents of the Hebron district under the age of 50 have also been prevented from leaving the West Bank via the Allenby Crossing to Jordan,” the group said in its June 17 statement. Amnesty also condemned Israel’s closure of the Erez and the Kerem Shalom crossings with Gaza.
“The use of collective punishment cannot be justified for any reason whatsoever, including violations by another party,” the statement read.
But Israeli legal scholars rejected the application of the collective punishment label to Operation Brother’s Keeper.
According to Sabel, the former Foreign Ministry legal adviser, Israel’s actions in the West Bank cannot be considered collective punishment as, he said, they are aimed exclusively at finding the kidnapped teenagers and weakening the terrorist organizations behind their abduction.
“It’s true that not everyone who was arrested is directly responsible for the kidnapping. But the only people who were arrested are involved in Hamas, or were released in the Gilad Shalit deal and have since violated the terms of the release,” he said. In searching for kidnapped civilians, apprehending members affiliated with the organization responsible for the kidnapping is legitimate, he argued.
As long as Israel’s objective is to locate the missing teens, and not to punish the Palestinian civilian population, the term “collective punishment” does not apply, Sabel insisted, while acknowledging that Palestinians in Hebron and elsewhere were suffering as a result of the IDF operation. If the military operation were to end as soon as Eyal Yifrach, Gil-ad Shaar, and Naftali Fraenkel were found, it would further prove that Israel did not intend to punish the Palestinians but merely to exert pressure on those who could help return them, he said.
Amnesty and other other civil rights groups are arguing that Israel can look for the missing teenagers as long as it does not inconvenience anyone, said international law professor Eugene Kontorovich, who teaches at Northwestern and Hebrew universities. But that has little to do with international law, he suggested.
“Rounding up suspects, or potential witnesses, is not punishment, but rather rudimentary investigative process,” Kontorovich said. “Especially when the crime is thought to be committed by a complex terror organization, the number of potential witnesses is high. There is no evidence whatsoever that the Palestinians are being rounded up just to get back at Palestinians, without any regard to their having potentially useful information.”
Collective punishment means targeting the broader community for the crimes of an armed group, Kontorovich added. “However, members of a criminal group can be punished for each others’ crimes as part of joint criminal enterprise. This is widely used against everyone from the Nuremberg defendants to drug dealing gangs.” Police often round up gang members after a crime hoping they can shed light on the perpetrators or that they themselves might be liable for offenses committed in furtherance of the joint criminal enterprise, he said.
Even Danon’s suggestion to cut electricity in the West Bank and Gaza is not illegal — if the PA is behind on electricity payments, Kontorovich said. After all, cutting off power has been discussed in the past several times, outside the context of the teenagers’ abduction, he added. “The fact that Israel might not choose to exercise this right until it is otherwise angry would not make it collective punishment.”