MORE CHILDREN HAVE been killed in Palestine and Israel in three weeks than are killed on average annually in all of the world’s major conflicts combined. Over 2,900 Palestinian children have been killed since the bombardment of Gaza by Israeli forces began. At least 29 Israeli children were killed in the Hamas-led attacks of 7 October 2023 and a further 32 Palestinian children have been killed in the West Bank.
These numbers, already staggering, will no doubt rise even further. Hundreds of Palestinian children are missing or trapped under the rubble of destroyed buildings in Gaza, while the full details of the approximately 1,400 Israelis killed have yet to be released. At least twenty children are being held as hostages by Hamas in the Gaza strip.
The high casualty rate is practically inevitable when civilians are intentionally used as instruments for the pursuit of military or political goals. International law has long rejected such an approach to waging war. There is a nucleus of binding rules in the Fourth Geneva Convention of 1949 which reflect this consensus: collective penalties, measures of intimidation or terrorism, reprisals against civilians and the taking of hostages are prohibited outright. Such practices can amount to war crimes.
Prior to the Second World War, collective punishment was a common tactic used by warring parties, particularly colonial powers and those occupying foreign territory. Punishing a civilian population for the acts of individuals was considered a means of maintaining order and suppressing resistance. Such measures were also a vehicle for revenge.
Collective punishment and reprisals were a feature of the Irish War of Independence 1919-1921. Following the IRA killing of a RIC District Inspector in Balbriggan in September 1920, “twenty five houses and seven businesses … were burned to the ground” by members of the RIC and Black and Tans.
The burning of Cork a couple of months later saw civilian property destroyed on an even greater scale in retaliation for IRA attacks.
The laws of war required considerable updating after the horrors of the Second World War. The existing rule against collective penalties was somewhat ambiguous, while there was no explicit prohibition of reprisals or hostage-taking. But while efforts to develop what became the 1949 Geneva Conventions were underway, and the Allies were prosecuting their defeated opponents for having engaged in such practices, the British were providing the framework for further collective punishment in Mandatory Palestine.
The Defence (Emergency) Regulations 1945 gave British military commanders the power to destroy any building from which hostile acts were carried out or if the inhabitants were somehow implicated. Israel has relied upon these Regulations to destroy thousands of Palestinian homes as punishment since its occupation of the West Bank and Gaza in 1967. The Supreme Court of Israel has frequently upheld this practice of collective punishment.
Palestinian, Israeli and international civil society organisations, as well as United Nations bodies and experts, have documented and denounced for decades numerous instances of collective punishment imposed in varying forms on Palestinians by the Israeli authorities as a response to individual hostile or criminal acts. The imposition of collective punishment in violation of international humanitarian law is not a new phenomenon.
The killing of civilians and the taking of hostages by Hamas and Palestinian Islamic Jihad in the attacks of 7 October 2023 – the most significant loss of Israeli lives in decades – are unquestionably contrary to international humanitarian law and could constitute war crimes. The Prosecutor of the International Criminal Court, Karim Khan, has confirmed that the Court’s jurisdiction would cover such atrocities.
The response by Israel, however, has disregarded its obligations under international humanitarian law. The blockade and unrelenting military assault on the Gaza strip constitute a collective punishment of previously unseen magnitude against Palestinian civilians. This view was echoed by the UN’s Secretary General António Guterres at the Security Council earlier this week.
Thousands have already been killed or injured, an estimated 1.4 million Palestinians displaced, 11,000 buildings damaged or destroyed and a health system decimated. Oxfam has said that “starvation is being used as a weapon of war” against the civilians of Gaza.
The International Criminal Court has jurisdiction but has yet to act.
Israeli officials have made their intentions clear. The Minister of Defence Yoav Gallant, when announcing the strict siege of Gaza, said “[t]here will be no electricity, no food, no fuel, everything is closed. We are fighting human animals and we are acting accordingly”. A spokesperson for the Israeli military said that the emphasis was “on damage and not accuracy”, while a former major general put it that “[c]reating a severe humanitarian crisis in Gaza is a necessary means to achieve the goal”. The Minister for Energy reiterated that there would be no electricity, water or fuel “until the Israeli abductees are returned home”.
Some, but certainly not all States, have criticised Israel’s response. The Taoiseach Leo Varadkar felt that the siege of Gaza “amounts to collective punishment” along with Guterres. The EU’s approach has been deeply disappointing. Initial vague references to upholding international law, have been followed by Josep Borrell, the High Representative for Foreign Affairs and Security Policy, stating that “Hamas shouldn’t be confused with the Palestinian people and the civilian population of Gaza cannot be held collectively responsible for its criminal actions”.
Despite the broad condemnation of Israel’s actions as collective punishment by Palestinian, Israeli and international human rights organisations, as well as by UN human rights special rapporteurs, two major concerns remain. The first is that Israel continues to act with complete impunity.
States are not fulfilling their obligation to ensure respect for the 1949 Geneva Conventions “in all circumstances”. Indeed, certain Western countries are actively assisting and could therefore be seen to be complicit in Israel’s unlawful acts.
There is near complete silence on the question of sanctions, despite their being deployed so readily in the context of Russia’s unlawful invasion of Ukraine.
The second serious concern is that Israel’s collective punishment of the civilian population may not merely be aimed at pressuring Hamas to release the Israeli hostages, but serves to further other goals, such as the forced displacement of Palestinians from some or indeed all of Gaza.
With the population in Gaza having almost nowhere to go and in a context of grave violations of international humanitarian law and dehumanising language towards Palestinians, we should take very seriously the growing warnings of a “risk of genocide against the Palestinian people”.
Professor Shane Darcy is Deputy Director of the Irish Centre for Human Rights in the School of Law at the University of Galway and the author of several publications on the prohibition and war crime of collective punishment under international law.
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