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Tuesday, June 19, 2007

Rewards are collective... so why not punishments?

I have to admit that as I've read the political commentary surrounding Israel's ongoing conflicts with its neighbors (and their unruly 'houseguests'), I am continually puzzled by one of the terms that crops up again and again: 'Collective Punishment'.

It isn't that I didn't understand the basic concept... but rather that I didn't fully understand how collective punishment has seemingly become the only criteria by which a country's war-time behavior is judged... not to mention why it is a standard to which non-national entities (such as Hezbollah, Hamas, et al) are not held at all! 

As I've looked into the topic, I have come to the conclusion that the legal prohibition against 'collective punishment' is as outdated as the very international convention (the Fourth Geneva Convention) that defines and prohibits it.

Feel free to skip ahead if you are already conversant on this stuff, but for the rest of us, here is an outline of the legal definitions and prohibitions:

Under the 1949 Geneva Conventions, collective punishments are considered a war crime.  Article 33 makes two basic statements:

1.  "No protected person may be punished for an offense he or she has not personally committed"

2.  "Collective penalties and likewise all measures of intimidation or of terrorism are prohibited"

"By collective punishment, the drafters of the Geneva Conventions had in mind the reprisal killings of World Wars I and II. In the First World War, Germans executed Belgian villagers in mass retribution for resistance activity. In World War II, Nazis carried out a form of collective punishment to suppress resistance. Entire villages or towns or districts were held responsible for any resistance activity that took place there. The conventions, to counter this, reiterated the principle of individual responsibility."  [Source]

Looking at these definitions, they seem to be designed to protect populations that are under occupation and at the mercy of the occupying power's military whims.  To this end, the questions that remained for me were 'who is a protected person and how far does that protection extend'? 

The pertinent passages are:

"1.  [Article 2 states that] signatories are bound by the convention both in war, armed conflicts where war has not been declared and in an occupation of another country's territory.

2.  [Article 3 states that] even where there is not a conflict of international character the parties must as a minimum adhere to minimal protections described as: noncombatants, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause shall in all circumstances be treated humanely, with the following prohibitions:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

What should bother even the most casual observer is that, because these rules were drafted in the wake of WWII to deal with conflicts exclusively between nation-states that bear no resemblance to current 4th generation warfare, they don't begin to address the problem of what to do when confronted by a belligerent, non-sovereign entity whose entire battle strategy is based on violating some or all of the convention's terms?

Think about this:  Many of Israel's loudest critics have openly defended attacks ("resistance) against ANY Israeli target (including civilians) because Israelis are assumed to be collectively responsible for the country's policies and actions.  I could almost accept this if the same logic were applied to our enemies' civilian populations.

So, given that Hezbollah acted with the full knowledge and tacit approval of the Lebanese population (of which they are a sub-set) why was international criticism directed at our prosecution of the second Lebanon war?  Should Israel have reasonably been expected to refrain from shooting back while Hezbollah was merrily waging war from within densely populated civilian population centers who aided and abetted our enemy with their silence and tacit support? 

This is exactly what many of Israel's critics around the world contend.  They posit that since the Lebanese civilians who were caught in the crossfire hadn't been personally responsible for attacking Israel that they couldn't legally be punished for that offense.

This leaves us to ponder whether the Lebanese population had a collective 'personal responsibility' that would fit the conditions of the Geneva Convention.  I contend that such a responsibility does, in fact, exist.

In a schoolyard children are expected to abide by the rules even when one bad actor in their midst refuses to do so.  The assumed proximity of a higher authority dictates that a bully who physically abuses his peers or intimidates them into coughing up their lunch money on a daily basis is going to be reported to the teacher or principal.  If the kids didn't reasonably believe that they could report the offenses of the bully, they would be justified in acting outside the rules. 

Likewise, the contention that Lebanese civilians couldn't be held responsible for the heavily fortified rocket launchers and bunkers in their midst is complete nonsense.  They always had the ability (via UNIFIL) to 'tell the teacher' about the local bully's activities.

There has been an international presence in Lebanon throughout the years when Hezbollah was building its infrastructure.  At any point during that time, mechanisms could have been put in motion to raise the issue with the U.N. and bring international scrutiny (and presumably action) against Hezbollah.  But that didn't happen.... and therein lies the personal collective responsibility of the Lebanese civilian population. 

Ironically, it was probably fear of exactly the sort of retribution the Geneva Convention had in mind that compelled these Lebanese civilians to remain silent.  But still, Israel stepped up to complain about Hezbollah's growing infrastructure many times... even as these civilians remained silent.  That the teachers and principal decided to take a few days vacation without telling the students is not Israel's fault. 

It is assumed that countries with healthy governments and safe societies have done something to earn the resulting collective reward.  For example, Switzerland enjoys a reputation for cleanliness because its citizens are obsessed with the issue on an individual basis and won't abide a flagrant litterer in their midst.  Germany also has a national reputation for orderliness / rules which allows events such as the purchase of train tickets to be organized on the 'honor system', with the individual shame of being caught by a 'spot check' being more than enough of a deterrent to force near total compliance.

To belabor the point just a tad further, I have seen countless unattended road-side stands in northern New England where jars of honey, baskets of berries and bushels of corn are set out with nothing more than a sign stating the price and an old cigar box for patrons to leave payment and make their own change.  In other cultures such a system would result in both the produce and money box being immediately stolen.  But because the local New England populations can assume that most will emulate their ethics, they are rewarded with a system that continues to function successfully.

The central pillar of this rambling post is that if a society is collectively rewarded for their behavior (and one can assume they continue behaving a certain way to continually reap that reward), then why isn't it safe to also assume that a society that is collectively punished for bad behavior will  change their behavior and seek the path of reward?

Or, as I often point out, I could be completely full of sh*t.

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Posted by David Bogner on June 19, 2007 | Permalink

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Dear David

That's a lot of anger and frustration in one post. Venting is not good for the soul. Believe me, catharsis does not work.

The New England metaphor is a sword that cuts two ways. The honor system works in New England because even visitors from 100 miles away share the same values. 100 miles away from you, no one shares your values.

I am no pacifist. Those who preach that violence never solved anything are willfully ignorant of history. Rome solved its Carthiginian problem with violence. Violence ended slavery in the United States, genocide in Nazi Germany and Japanese-occupied China, and religious wars in Switzerland.

What distinguishes Israel from Hezbollah, Hamas, and the-terrorist-of-the-month club is that Israel employs force with ethical restraint. This is the mark of a soldier: a soldier protects a civiliztion. He is a hero. Hezbollah employs force indiscriminately. This is the mark of a brigand: a brigand destroys and kills. He is a criminal.

You do not want soldiers of the IDF to become brigands. You do not want the soldiers of the IDF to lose their souls. "What would it profit a man if he gain the whole world but lose his own soul?"

I realize that I offer no external solution to the problem. My reason is too small to devise a solution to so great a problem. But there may be an internal solution for you in this prayer: God, grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference.

And remember that Yonah loves you.

Posted by: antares | Jun 19, 2007 6:07:48 PM

The recent events in Gaza have shown yet again that the world doesn't care if Arabs kill Arabs.

Stick Olmert in a kaffiyeh and no one will say anything if he orders the IDF to respond to the Qassams.

Posted by: Jack | Jun 19, 2007 6:47:17 PM

The world also doesn't care if Arabs kill Jews. But if Jews defend themselves, it's "Cet animal est trés méchant; quand on l'attaque, il se défend."

Posted by: Elisson | Jun 19, 2007 10:04:21 PM

Doesn't the Chumash prohibit
punishment by proxy? The individual is to be judged and held accountable by his fellow,
by the instrument of lawful adjudication. However, the enemy is one's enemy, and a mass attack on intended victims, I think, should be answered in kind.
Also, today is the Lubavitcher
Rebbe's 13th Yahrzeit -mamesh!

Posted by: Schvach | Jun 19, 2007 11:22:02 PM

Collective responsibility?

Hmmm, given that so much of the anti-Israel spew is anti-Semitic, and that so many of the anti-Israel activists are anti-Semites, I tend to assume that all of them are anti-Semites.

Yes, I know that some of them aren't. But their choice of associates, allies, and positions serve to tarr them.

I do not know, and cannot assume, that they are NOT that way untill they prove it. Untill then, it is reasonable to not assume that they are 'untarred'.

Not all of the Lebanese civilians.....
but in order to be considered innocent, given that appearances strongly suggest otherwise, a token disassociation would be probably be a reasonable requirement.

Posted by: Back of the Hill | Jun 20, 2007 1:09:41 AM

Hi David,

I have dabbled quite a bit in international law.

The first thing you should realize that the concept of "punishment" does not rightly belong to the international laws governing warfare. "Crime and punishment" is the connection. Punishment is meted out within a law-abiding society to maintain the rule of law.

Punishment for war crimes is supposed to come after war in an international court (see Ruanda, former Jugoslavia). This is not the issue here.

In war the aim is to prevent the enemy from doing or continuing doing something. Not all actions are acceptable to do that. For example the specific targeting of civilians is not. However, collateral damage has only to be weight against the advantage gained against the enemy. It is not per se forbidden. Any comabattants using civilians as human shields bear full responsiblity for any attack on these civilians. Civilians volunteering to be human shields give up their right to protection.

Posted by: Ruth | Jun 24, 2007 12:51:42 PM

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