Charge of 'collective punishment' over Israel's blockade in Gaza

[shira]

Thursday, September 11, 2008

Charge of 'collective punishment' over Israel's blockade in Gaza

Madam, - Philip O'Connor of the Ireland Palestine Solidarity Campaign (Opinion, August 21st) defends the assertion that Israel's blockade of Gaza constitutes "collective punishment" and a violation of international law, but fails to engage with a single one of my arguments to the contrary (Opinion, August 21st).

He contents himself instead with quoting an assortment of statements by UN, EU and Irish Government officials in support of his position, an appeal to consensus which calls to mind the adage "100,000 lemmings can't be wrong."

For the reality is that the international community is routinely forced into climb-downs regarding the Israeli-Palestinian conflict and issues of international law. In March 2002, for example, the then UN Secretary-General, Kofi Annan, had to retract his claim that Israel's presence in the territories was an "illegal occupation". Five months later, the UN conceded that claims of Israeli "war crimes" and "gross violations of the Geneva Conventions" during the battle of Jenin were unfounded.

snip

http://www.irishtimes.com/newspaper/letters/2008/0911/1221039061572.html

[shira]

1. Here's some REAL collective punishment

this is the author's first article which the OP is based on

http://www.irishtimes.com/newspaper/opinion/2008/0815/1218747921606.html

In an effort "to make up for his death", the SS rounded up the residents of the nearby village of Lidice. Some 200 men were immediately executed. The women were sent to Ravensbrück concentration camp where most subsequently died;80 per cent of their children were gassed at Chelmno in July.

Two years later, a partisan bomb killed 33 members of an SS police battalion as it marched through central Rome. In reprisal, the city's Gestapo chief, Herbert Kappler, ordered that 10 Italians be executed for every dead German. The following day, 335 people were taken down to the Ardeatine Caves and shot in the back of the neck.

Such were the type of atrocities that the framers of the Fourth Geneva Convention had in mind when they outlawed "collective punishment" in 1949. Article 33's stipulation that no person "be punished for an offence he or she has not personally committed" refers to the active imposition of criminal penalties in reprisal for another party's guilt.

[shira]

2. Is Gaza a true example of collective punishment ?

Does the international legal definition of collective punishment truly apply to Israel's blockade of Gaza? Or is this purely a political charge?

Talk amongst yourselves. Discuss!

[Name removed]

3. Deleted message

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[shira]

4. that is Blair's sister-in-law from "Free Gaza"

and all we hear from some is that there's a shortage of food in Gaza based on the blockade.

Yup...sure looks like a shortage to me. I agree.

[libodem]

5. Oddly the books that have fallen into my hands

are about Israel and Palestine. I just finished 'THE SOURCE' by James Mitchener which loosely relates the history of the area and the plight of the Jews and the Palestinians. The next one I picked up at a garage sale entitled 'PRINCE OF FIRE' by Daniel Silva which picks up almost right where Mitchener's drops off. Again a loose translation of events based on reality. All is disturbing. And I still don't know how to pronounce and sound judgments about what is right and what is wrong. The Jews have been through so much abuse and attempts at extermination by Christians and Muslims alike. The Spanish inquisition was not just about heretics in general but about if you were a secret Jew, disguising your beliefs by pretending to be Christian. The torture and death were excruciating even to read about. I understand why the Jews are so militant but I feel very sorry for the Palestinians. I just don't know what to think. It is mind boggling.

[bemildred]

6. Well, it hardly seems like individual punishment.

Whether or not it violates international law is a matter of opinion, and opinions will vary. His argument that blockades and the like are used against other nations is a good one, but it does not show whether or not those actions are legal, it only shows they are not unique.

The point that strikes me is that such things (blockades) are acts of war, and that this shows that Israel is at war with the people that it also occupies, which raises some other questions. Generally occupiers are responsible for the people they occupy under international law, they are responsible for their welfare, and this is not in dispute. Hence to also be at war with them seems somewhat contradictory.

[Dick Dastardly]

7. It actually is in dispute as Gaza is not occupied

The Fourth Geneva Convention, holds that occupation ends when the controlling power no longer "exercises the functions of government" over the territory in question. The Hague treaty that defines occupied territory as one "actually placed under the authority of the hostile army".

The Myth Of Occupied Gaza

Israel, however, is not an occupying power, judging by traditional international legal tests. Although such tests have been articulated in various ways over time, they all boil down to this question: Does a state exercise effective governmental authority -- if only on a de facto basis -- over the territory? As early as 1899, the Hague Convention on the Laws and Customs of War on Land stated that "erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself."

The Hague Convention is a founding document of the modern law of armed conflict, and its definition of occupied territory was woven into the 1949 Geneva Conventions. There, the relevant provision provides that "n the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations," although certain protections for the populations continue "to the extent that such Power exercises the functions of government in such territory." That is the key -- exercising the functions of government. This proposition was recognized in a seminal Nuremberg prosecution, the Trial of William List and Others.

It is because an occupying power exercises effective control over a territory that international law substantially restricts the measures, military or economic, it can bring to bear upon this territory, well beyond the limits that would be applicable before occupation, whether in wartime or peacetime.

The Israeli military does not control Gaza; nor does Israel exercise any government functions there. Claims that Israel continues to occupy Gaza suggest that a power having once occupied a territory must continue to behave toward the local population as an occupying power until all outstanding issues are resolved. This "principle" can be described only as an ingenious invention; it has no basis in traditional international law.

full

http://www.washingtonpost.com/wp-dyn/content/article/2008/05/09/AR2008050902296.html





This article goes into legal details of

International Law and Gaza: The Assault on Israel's Right to Self-Defense
The Legality of Israeli Military Actions under Jus ad Bellum
The Legality of Israeli Military Actions under International Humanitarian Law
The Legality of Israeli Military Actions under the Laws of Occupation
The Legality of Israeli Military Actions under International Human Rights Law
Duties of Israel under the Genocide Convention
Duties of Israel under Anti-Terrorism Conventions



Israel's imposition of economic sanctions on the Gaza Strip is a perfectly legal means of responding to Palestinian attacks. Since Israel is under no legal obligation to engage in trade of fuel or anything else with Gaza, or to maintain open borders, it may withhold commercial items and seal its borders at its discretion.
The bar on collective punishment forbids the imposition of criminal-type penalties to individuals or groups on the basis of another's guilt. None of Israel's actions involve the imposition of criminal-type penalties.


http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID=1&TMID=111&FID=378&PID=0&IID=2021

[bemildred]

8. Bullshit.

What I said, that the occupier has responsibilities for the occupied under international law is not in dispute. And I pointed out that it is ambiguous whether Israel is occupying Gaza or at war with it, a situation that Israel selected deliberately and has fought to maintain. But that situation comes with its own problems. Israel was clearly occupying Gaza at one point, was colonizing it actually; but it has decided to end the colonization, while keeping it less than sovereign and independent, which it clearly is not. It remains under Israeli control, even if it is not Israeli-obedient. Meanwhile, as you point out, Israel commits various acts of war against it's population, which it did also when Gaza was still clearly occupied and colonized. So that has not changed. It seems to me, as much as anything, that the Israeli government can't really make up its mind what it wants, at least among the realistic choices of what it might actually get, so it maintains this ambiguous situation and procrastinates, hoping for some miracle to come along.