Collective Punishment and Human Rights Law
eBook - ePub

Collective Punishment and Human Rights Law

Addressing Gaps in International Law

Cornelia Klocker

Share book
  1. 198 pages
  2. English
  3. ePUB (mobile friendly)
  4. Available on iOS & Android
eBook - ePub

Collective Punishment and Human Rights Law

Addressing Gaps in International Law

Cornelia Klocker

Book details
Book preview
Table of contents
Citations

About This Book

This book analyses collective punishment in the context of human rights law. Collective punishment is a concept deriving from the law of armed conflict. It describes the punishment of a group for an act allegedly committed by one of its members and is prohibited in times of armed conflict. Although the imposition of collective punishment has been witnessed in situations outside armed conflict as well, human rights instruments do not explicitly address collective punishment. Consequently, there is a genuine gap in the protection of affected groups in situations outside of or short of armed conflict. Supported by two case studies on collective punishment in the Occupied Palestinian Territories and in Chechnya, the book examines potential options to close this gap in human rights law in a way contributing to the empowerment of affected groups. This analysis centres on the European Convention on Human Rights due to its relevance to the situation in Chechnya. By questioning whether human rights instruments can encompass a prohibition of collective punishment, the book contributes to the broader academic debate on rights held by collectivities in general and on collective human rights in particular.

The book will be of interest to students, academics and policy makers in the areas of International Human Rights Law, International Humanitarian Law and International Criminal Law.

Frequently asked questions

How do I cancel my subscription?
Simply head over to the account section in settings and click on “Cancel Subscription” - it’s as simple as that. After you cancel, your membership will stay active for the remainder of the time you’ve paid for. Learn more here.
Can/how do I download books?
At the moment all of our mobile-responsive ePub books are available to download via the app. Most of our PDFs are also available to download and we're working on making the final remaining ones downloadable now. Learn more here.
What is the difference between the pricing plans?
Both plans give you full access to the library and all of Perlego’s features. The only differences are the price and subscription period: With the annual plan you’ll save around 30% compared to 12 months on the monthly plan.
What is Perlego?
We are an online textbook subscription service, where you can get access to an entire online library for less than the price of a single book per month. With over 1 million books across 1000+ topics, we’ve got you covered! Learn more here.
Do you support text-to-speech?
Look out for the read-aloud symbol on your next book to see if you can listen to it. The read-aloud tool reads text aloud for you, highlighting the text as it is being read. You can pause it, speed it up and slow it down. Learn more here.
Is Collective Punishment and Human Rights Law an online PDF/ePUB?
Yes, you can access Collective Punishment and Human Rights Law by Cornelia Klocker in PDF and/or ePUB format, as well as other popular books in Law & Law Theory & Practice. We have over one million books available in our catalogue for you to explore.

Information

Publisher
Routledge
Year
2020
ISBN
9781000062601
Topic
Law
Edition
1

1 Introduction

As much as this is a book about collective punishment under two legal frameworks – the law of armed conflict and human rights law – it is also a book telling the story of two destroyed homes. One of them stood in the village of Deir Abu Mash’al in the Occupied Palestinian Territories (OPT) and belonged to the Saleh family. The other one stood in the village of Yandi in Chechnya and belonged to the Baidulaev family. The home of the Saleh family was destroyed due to the involvement of a family member in an attack on the border police. The home of the Baidulaev family was destroyed due to the alleged insurgent ties of a family member after insurgents attacked the Chechen capital Grozny.1
1 B’Tselem (2017). Innocents Punished: Israeli Military Demolishes Three Homes and Seals Another, Ramallah District, www.btselem.org/photoblog/innocents-punished-israeli-military-demolishes-three-homes-and-seals-another-ramallah-dist (17/12/19); Human Rights Watch (2014). Dispatches: Burning Down the House in Chechnya, www.hrw.org/news/2014/12/10/dispatches-burning-down-house-chechnya (17/12/19); Memorial Human Rights Centre (2014). Чечня: силовики сожгли дома родственников боевиков, https://memohrc.org/ru/news/chechnya-siloviki-sozhgli-doma-rodstvennikov-boevikov (17/12/19).
There are similarities between these two cases. In both, a group or collectivity is punished for the act or the alleged act of an individual member of the group. Yet this group is not confined to the family, but encompasses the community to which they belong; the Palestinians on one hand, and the Chechens on the other on a broader level. These groups are targeted by the Israeli and Russian authorities. They punish these groups collectively for acts committed or allegedly committed by one or some of their members for which the other group members do not bear individual responsibility. Under the law of armed conflict, this is known as collective punishment.
Collective punishment is prohibited in times of armed conflict under treaty as well as customary international law. Yet it is not explicitly prohibited in situations outside armed conflict. The house of the Saleh family in the OPT was destroyed during the ongoing Israeli occupation. The occupation means that the law of armed conflict is applicable in this context and for this reason the demolition of the house violated the prohibition of collective punishment.
The house of the Baidulaev family in Chechnya was destroyed in the aftermath of the second non-international armed conflict between Chechnya and Russia. Large-scale fighting ceased over a decade ago, yet sporadic confrontations between the military and insurgents have continued. It is unclear whether Chechnya is still in the state of a non-international armed conflict or not. Given this uncertainty, it is equally unclear whether the destruction of the Baidulaev home was prohibited under the law of armed conflict. If one reaches the conclusion that the non-international armed conflict is over, the prohibition of collective punishment does not apply to the destruction of their home.
Punishing a group for acts committed or allegedly committed by some of its members in this way is prohibited under the law of armed conflict, but not under human rights law. Current international human rights instruments do not explicitly address collective punishment. Consequently, the house destructions in the OPT are in breach of the prohibition of collective punishment, whereas house destructions in Chechnya are not. The drastic split in the legal assessment between those two very similar cases highlights a genuine gap in human rights law.
The comparison of these two cases prompts the following question: What is the relationship between the legal regulation and state policies on collective punishment under the law of armed conflict and human rights law and what effects does this relationship have on the protection and empowerment of affected groups?
The imposition of collective punishment is not limited to situations of armed conflict but has expanded to situations governed by human rights law. Without a prohibition of collective punishment under human rights law, affected groups have no substantive rule on which they can base their claim against the perpetrators. This need for tools to engage in change connects the case studies to the theoretical discussion. A recurring theme of this book is empowerment or group empowerment. This concept is linked to the overall aim of the book to enable groups affected by collective punishment to take action. Although action taken by affected groups can take a number of shapes and forms, the book centres on the contribution a prohibition of collective punishment enshrined in law – the law of armed conflict and human rights law – can or could make. This means that empowerment is seen in a broader sense and a prohibition of collective punishment under human rights law could be one tool of many that could work towards the goal of empowerment. And this goal would come closer when affected groups can take on an active role in their struggle for justice, when they can claim their rights and hold those violating them to account. As Malloy rightly says, this transition from ‘objects of protection’ to ‘subject’ is a crucial precondition to effect lasting social change as it was brought about by the affected groups themselves.2
2 Malloy, T.H. (2014). National Minorities Between Protection and Empowerment: Towards a Theory of Empowerment, Journal on Ethnopolitics and Minority Issues in Europe, 13 (2), 11–29, 21.
The book is divided into an introduction (Chapter 1), six substantive chapters (Chapters 2 to 7) and a conclusion (Chapter 8). Chapter 2 is devoted to the legal regulation of collective punishment under the law of armed conflict and Chapter 3 presents a case study on the OPT to round off the part dealing with the law of armed conflict. Chapter 4 addresses the legal regulation, or rather non-regulation of collective punishment under human rights law, and Chapter 5 presents the ensuing case study on Chechnya. Chapters 6 and 7 bring these findings together by assessing the theoretical debate on group rights as human rights (Chapter 6) and the viability of prohibiting collective punishment under the European Convention on Human Rights (ECHR) (Chapter 7). The focus on the ECHR stems from the cases already brought before the European Court of Human Rights by Chechens regarding other aspects resulting from the non-international armed conflicts fought against Russia. Chapter 8 summarises the previous chapters and concludes on their findings. In the following, a more detailed summary of the substantive chapters of the book is provided.
Chapter 2 examines the legal regulation of collective punishment under the law of armed conflict based on international treaties as well as customary international law. Although collective punishment is prohibited under the 1949 Geneva Conventions and their 1977 Additional Protocols, the drafting history of these documents reveals a certain unwillingness or reluctance of state parties to concede rights to actors other than states. For this reason, the customary international law status of the prohibition of collective punishment is crucial, as it proves this opposition to be a minority opinion.
Apart from prohibiting collective punishment, the law of armed conflict does not say much about the nature and scope of the act itself. This leads to a problem of defining collective punishment. The Special Court for Sierra Leone has dealt with the war crime of collective punishment as enshrined in its statute and defined its elements as ‘indiscriminate punishment imposed collectively on persons for omissions or acts some or none of them may or may not have been responsible’ with ‘the specific intent of the perpetrator to punish collectively’.3 The chapter concludes with a working definition of the act of collective punishment as the punishment of a group as such for an act committed by one or some of its members for which the remaining members of the group do not bear individual responsibility.
3 Fofana and Kondewa (SCSL-04-14-A) Judgment, Appeals Chamber (28 May 2008) para.224.
The group referred to is understood in a relatively neutral sense; meaning an “identifiable group” such as the family of an alleged terrorist whose house is demolished and is not related to any additional criteria such as a broader discriminatory intent. However, in practice the groups targeted by collective punishment might also exhibit those broader characteristics as the family of a Palestinian whose house is demolished also belongs to this broader group, the Palestinians. The same goes for alleged members of the Chechen insurgent movement. Yet the group envisaged in the definition of collective punishment does not include a discriminatory element based for example on ethnicity, religion or sex.
Even though collective punishment does not require a discriminatory intent, targeted groups are likely to be subject to discriminatory treatment in addition to collective punishment. This again leads back to the broader struggle for justice of these groups (the Palestinians and the Chechens) and the ways in which a prohibition of collective punishment could contribute to those efforts. Although the cases on punitive house demolitions deal with families of persons who have (allegedly) committed certain acts and not with the Palestinians or the Chechens per se, these cases shine a light on the broader situation in the OPT and in Chechnya. To sum up, the term group unless otherwise stated should be understood in a broad and neutral manner but these groups do not exist in a vacuum and it is very likely, as the two case studies show, that those groups also carry other characteristics based on a shared identity. Yet these overlaps do not influence the criteria for assessing whether collective punishment was imposed on a group. What it does change however is the broader picture: In both case studies, the groups affected by collective punishment also belong to a bigger community, namely the Palestinians and the Chechens. And the imposition of collective punishment on families belonging to those groups exposes their treatment by the respective state in general. By documenting violations of the prohibition of collective punishment, these groups draw attention to the broader implications and therefore contribute to the struggle for justice of the Palestinians and the Chechens. This interconnection explains the overlap of the groups affected by collective punishment in each instance (for example a family) and simultaneously the effect this act has on the larger community they belong to (for example the Palestinians).
Chapter 3 examines the legal regulation of collective punishment under the law of armed conflict and its use in practice, with a case study looking at punitive house demolitions in the OPT. After confirming the status of the OPT as still occupied, and therefore demonstrating the applicability of the law of armed conflict, the case study focuses on one specific form of house demolitions practised by Israeli forces, punitive house demolitions. These are based on outdated Defence (Emergency) Regulations adopted by the British in 1945 during their administration of Palestine. Israel still relies on these provisions even though they have been repealed. Broadly speaking, the regulation provides for the destruction of homes connected to offences against Israeli forces, including buildings from which firearms have been launched or buildings in which perpetrators have been living.
Local non-governmental organisations have filed numerous cases on behalf of Palestinians against such demolitions and one of them, the HaMoked case brought by the non-governmental organisation of the same name, is of particular interest as it attacked this Defence (Emergency) Regulation itself. The chapter argues that the prohibition of collective punishment under the law of armed conflict supports the Palestinians in their struggle for justice as the substantive prohibition can act as a tool contributing to their empowerment in a broader sense. Relying on the prohibition, they filed cases against Israeli forces destroying their homes documenting Israel’s long history of non-compliance with its international obligations in this regard. Furthermore, the international prohibition of collective punishment denies legality to any local law like the Defence (Emergency) Regulations and prevents the attempted legalisation of collective punishment. Seen from this angle, the prohibition of collective punishment can support the empowerment of the Palestinians by enabling them to call out Israel’s violations of the law of armed conflict. Although the prohibition of collective punishment under the law of armed conflict alone will not bring about the empowerment of the Palestinians and Israel’s state practice still has to change to compliance, it is an important piece in their broader struggle for justice and in particular regarding punitive house demolitions.
In sum, Chapters 2 and 3 provide the foundational understanding of the origin and meaning of collective punishment under the law of armed conflict and outline the ways in which a prohibition of collective punishment can contribute to the empowerment of the Palestinians.
Highlighting the fluid transition between the law of armed conflict and human rights law, Chapter 4 starts with a short analysis of states of emergency. Most international human rights instruments such as the ECHR include derogation mechanisms which will apply during a state of emergency. This means that states can temporarily suspend some of their human rights obligations. Given the direct reference to collective punishment in the General Comment to the state of emergency provision in the International Covenant on Civil and Political Rights (ICCPR), this treaty will be used to outline the concept of states of emergency. The General Comment states that derogations in times of a state of emergency cannot be used to justify collective punishment.4 A short look at how the Turkish authorities have used declarations of a state of emergency to pursue a policy of village destruction in the Kurdish-dominated south of the country sheds light on the position of states of emergency between armed conflict and peace, resulting gaps in protection and their dangers.
4 CCPR/C/21/Rev.1/Add.11 General Comment No.29: States of Emergency (Article 4) (31 August 2001) para.11.
In order to close this gap, the existing human rights framework – in particular the ECHR, but also the African Charter on Human and Peoples’ Rights (ACHPR) and the ICCPR – is examined for any rights or principles related to the substance of the act of collective punishment. Related rights are mainly those that are violated in the course of collective punishment. Taking the example of house destruction, violations of the right to private and family life and the right to property are involved. Depending on the treatment of the inhabitants, the right to life as well as the prohibition of torture are also engaged. All these violations have to be seen in conjunction with the prohibition of discrimination. Furthermore, the principle of individual responsibility is a core value undermined by collective punishment. In addition to these related rights and principles, the group rights in the ACHPR and minority rights are briefly mentioned to foreshadow the theoretical debate on group rights as human rights in the last part the book. At this point however, they are only examined for their substantive connection to collective punishment. The European Framework Convention on the Protection of National Minorities (FCNM) and the European Social Charter (ESC), which support a prohibition of collective punishment under the ECHR on a more theoretical and procedural level, are analysed in the last part of the book as well.
Collective punishment is the imposition of sanctions on a group as such for acts committed or allegedly committed by one or some of its members for which the other members do not bear individual responsibility. These criteria are not present in any existing article of the human rights instruments reviewed in this book. Although several rights are violated in the course of collective punishment, the specific wrong done by collective punishment as such remains unaddressed. Neither the prohibition of torture, the right to property or the prohibition of discrimination require the punishment of a group for an act committed by one of its members. These related rights violations only confront the side effects or the symptoms of collective punishment and not the cause.
Drawing on this assessment, human rights law and the ECHR in particular are currently unable to encompass collective punishment. The human rights framework does not address the particular wrong done by this act. Nevertheless, the last section of this chapter emphasises that although collective punishment as such is not prohibited under current human rights treaties, the European Court of Human Rights (ECtHR) has already referred to this term in over 40 cases, some of them even in...

Table of contents