Palestine Center Information Brief No. 164 (18 July 2008)
By Ali Abunimah
Palestine Center Fellow

The blood of the victims is screaming out at us; the blood of the innocent is calling on all of us to wake up; to make the Arabs of east Jerusalem realize that terrorism comes with a price. A painful price. A price paid by the terrorist's family, his relatives, brothers, and brothers-in-law.
The above quote was written by an Israeli journalist in the largest circulation daily Yediot Aharonot a day after Hussam Dwaiyat, a 30-year-old Palestinian from occupied East Jerusalem ran a bulldozer into several vehicles in Jerusalem, overturning a bus, killing three people and injuring several dozen others.1 Calling for "collective punishment," the commentator added, "It has to be the kind of punishment that has a revenge component." Meanwhile, dozens of Israeli protestors gathered outside the Dwaiyat family home in the Sur Bahir neighborhood chanting, "Right here, right now, destroy this house."2

These sentiments were not marginal; they reflected the mood of Israeli political and military leaders, many of whom declared Palestinians to be collectively guilty and called for measures of collective punishment against Dwaiyat's relatives, specifically, and the Palestinian civilian population more generally.

This paper examines Israel's use of collective punishment of Palestinians and its affording of collective immunity to Israeli Jews who commit crimes against Palestinians.

Collective Punishment in International Law

Because collective punishment was a common and horrifying feature of armed conflict in earlier times, involving reprisal killings and property destruction against noncombatant civilians, it became one of the fundamental prohibitions enshrined in the 1949 Fourth Geneva Convention, protecting civilians in time of armed conflict and military occupation. The United Nations Security Council has reaffirmed on dozens of occasions that this Convention applies to Israel's occupation of the West Bank, Gaza Strip and Jerusalem.3

Article 33 of the Convention states that:
No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited.
The authoritative ICRC (International Committee of the Red Cross) commentary on this article explains that:
This paragraph then lays a prohibition on collective penalties...penalties of any kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity, for acts that these persons have not committed.4
The Handbook of Humanitarian Law in Armed Conflict states that collective punishments:
may take different forms, such as a curfew preventing the inhabitants from fulfilling their daily duties, punishment or detention of several members of a group or family for an alleged offense by one member, or the destruction of the house belonging to the family of an alleged offender. Such acts are prohibited, without exception, by Article 33.5
Amnesty International views the prohibition on collective punishment as "a cardinal rule of human rights law" and affirms that under the Fourth Geneva Convention, the vast majority of house demolitions by Israeli occupation forces, including the punitive demolitions, are illegal.6

Consensus View on Israeli Collective Punishment

There is a firm consensus among U.N. officials, many governments, human rights organizations and international civil society that many of Israel's policies and practices against Palestinians constitute illegal collective punishment and a "grave breach" of the Fourth Geneva Convention.

In 2006, Switzerland, the depository of the Geneva Conventions, condemned Israeli actions in the Gaza Strip which "violated the principle of proportionality and are to be seen as forms of collective punishment, which is forbidden." These included the destruction of Gaza's only power station, depriving hundreds of thousands of people of electricity and the arbitrary arrest of democratically-elected officials.7

Israel's blockade of the Gaza Strip, including restricting the import of fuel, raw materials and vital supplies and preventing the entry and exit of patients in need of urgent medical care, has been condemned as "collective punishment" by U.N. Secretary General Ban Ki-moon8 as well as by the European Union and France.9 In January, the Vatican's ambassador to Israel also urged the country to refrain from "collective punishment" in Gaza.10

Major humanitarian and human rights organizations agree. A coalition of groups comprised of Amnesty International, CARE International UK, CAFOD (the Catholic Fund for Overseas Development), Christian Aid, Medecins du Monde UK, Oxfam, Save The Children UK and Trcaire jointly condemned Israel's "collective punishment" and noted that the humanitarian situation was worse than at any time since the occupation began in 1967.11 By July 2008, at least 50 medical patients, denied treatment outside the Gaza Strip, had died as a result of this collective punishment, Amnesty reported.12

Seven Israeli human rights organizations jointly warned that the Israeli blockade of Gaza constituted "a violation of one of the absolute prohibitions of international law: the ban on collective punishment."13

House Demolitions as Collective Punishment

A specific category of collective punishment is house demolition, which the Dwaiyat case highlights.

Since 1967, Israel has used house demolitions or sealings as a way to punish the Palestinian population. According to B'Tselem, "the declared objective of house demolitions was deterrence, achieved by harming the relatives of Palestinians who carried out, or were suspected of involvement in carrying out attacks against Israeli citizens and soldiers." Its main victims, therefore, were "family members, among them women, the elderly, and children, who bore no responsibility for the acts of their relative." In the vast majority of cases, the person whose alleged actions Israel used to justify the demolition no longer lived in the house either because he was in hiding, was imprisoned or had been killed by Israeli forces.14

From the beginning of the second intifada in September 2000 up to November 2004, Israel carried out 628 punitive demolitions (accounting for about 15 percent of all house demolitions), making 3,983 people homeless. These demolitions were carried out because of the alleged acts of 333 individuals; thus on average, twelve persons were punished for the suspected act of one person. Even more shocking, almost half of those houses (295), home to 1,286 people, were never home to anyone suspected of carrying out any act against Israel; they were simply unfortunate enough to be adjacent to the targeted homes.15

In 2005, then Israeli Defense Minister Shaul Mofaz suspended the practice of punitive demolitions after a classified Israeli army report found that house demolition was ineffective as a deterrent and could be "counterproductive."16 According to a former chief of Israel's military courts in the occupied West Bank, the report found that "nowhere was it demonstrated that home demolition put an end to terrorist activity or even substantially curbed it; the move perhaps even increased it."17

In light of these facts, the chorus of calls for a renewal of punitive house demolitions and other measures of collective punishment in the wake of the bulldozer incident demonstrated a "lack of logic and lack of control" on the part of Israel's leaders, according to a Haaretz editorial.18

On the day of the Jerusalem bulldozer attack, even before it had been thoroughly investigated, Prime Minister Ehud Olmert called for the home of the bulldozer driver's family to be destroyed and for the family's social benefits to be cut off. Defense Minister Ehud Barak issued preliminary orders for the destruction of the Dwaiyat family home, as well as the home of the gunman who killed eight students at the Mercaz HaRav Yeshiva in March. Israel's Attorney General affirmed that such demolitions would not be illegal under Israeli law.

Israeli police later confirmed that Dwaiyat had acted alone, and there was no evidence that he had been involved with any militant organization.19 Dwaiyat was shot dead on the scene.

A Pretext for Discrimination

Israeli leaders are certainly aware that house demolitions of the kind they demand in response to the Jerusalem attacks have no deterrent effect, even if they remain unconcerned about their absolute illegality under international law. Why then would they once again resort to them? One likely reason is domestic politics; Israeli leaders often compete for popularity on the basis of who can be more hard-line towards Palestinians and Palestinian citizens of Israel. Another is that incidents such as the bulldozer attack or the March shooting at Mercaz HaRav provide Israeli leaders with an opportunity to advance policies aimed at further eroding the citizenship and rights of Palestinian citizens of Israel and Palestinians in East Jerusalem, who are considered a demographic burden to Israel.20

In the wake of the bulldozer attack, Vice Premier Haim Ramon, for instance, called for Israel to revoke the "permanent residency" rights of Palestinians in the East Jerusalem areas of Jabal Mukaber and Sur Bahir (combined population approximately 30,000)-Israel treats most Palestinians native to East Jerusalem occupied in 1967 as if they were merely foreign residents in Israel living there at its pleasure.21

Infrastructure Minister Eli Yishai called for the movement of East Jerusalem Palestinians to be restricted by law. A legislator from the Yisrael Beitenu Party, formerly a member of Olmert's governing coalition, declared of Palestinians that "they are all plotting evil" against Israel.22 Another legislator suggested that in addition to demolishing their house, Dwaiyat's family members should be exiled to the Gaza Strip.23

Gilad Sharon, son of former Prime Minister Ariel Sharon, went even further using the bulldozer attack to justify a loyalty test for Palestinian citizens of Israel; those who voluntarily chose to serve in the Israeli army and refrained from any criticism of the state could keep their Israeli citizenship. Those who refused these terms "would enjoy only residency rights" and would only be able to elect representatives to a separate parliament. Palestinian citizens of Israel, he said, would have to be completely loyal or "pay the price."24

Just hours after the bulldozer incident, the Knesset preliminarily approved, by large margins, two previously introduced bills allowing Israel to confiscate the property and revoke the citizenship of Palestinian citizens of Israel involved in "terror" activities as well as that of their family members.25

Collective Impunity

Despite constituting a serious violation of international law, Israel does not consider house demolitions and other collective punishments to be illegal under its own laws. At the same time, Israel claims to be a modern liberal democracy comparable to those in Western Europe or Canada.

On its face, collective punishment fundamentally contradicts liberal principles. But, given that Israel views Palestinians in East Jerusalem and Palestinian citizens of Israel to be subject to its domestic laws (as distinct from the military laws it applies to Palestinians in the West Bank outside Jerusalem), they should be treated the same as Israeli Jewish citizens when they commit similar crimes. We should expect that Israeli Jews too would experience collective punishment. This is emphatically not the case, however. The record shows that while Palestinians suffer collective punishment, Israeli Jews are accorded individual liberal rights when they are punished but very often enjoy lenience or impunity if their victims are Palestinians.

Israel has never demolished the home of an Israeli Jew for punitive reasons; it has not even moved to demolish the West Bank settler outposts that even it considers "illegal" and that it has pledged to remove under its Road Map commitments. Neither Yigal Amir nor his family were threatened with having their citizenship revoked after Amir was convicted of assassinating Israeli Prime Minister Yitzhak Rabin in 1995, the gravest act of treason any state could countenance. Nor was his family home demolished either as punishment or to deter other Israeli Jewish extremists from assassinating government officials, despite frequent warnings from Israeli security agencies that more attacks were possible. Indeed, Amir has received extraordinary benefits in prison, including the right to marry, have conjugal visits, father a son and attend the infant's circumcision ceremony.

Although Israeli Jewish citizens have carried out lethal attacks on Palestinians inside Israel, often for political reasons, Jewish families or communities have never been subjected to collective punishment.

On 4 August 2005, for example, Eden Nathan Zada, an Israeli army deserter, opened fire on a bus in the northern Israel town of Shfaram killing four Palestinian citizens of Israel and wounding 12 others. Then Prime Minister Ariel Sharon called Zada, who was enraged by Israel's planned removal of settlements from the Gaza Strip, "a bloodthirsty terrorist."26 Zada was beaten to death on the spot by survivors. Israel alleged that he had already been subdued and handcuffed and subsequently arrested a number of Palestinians accusing them of "lynching" Zada. Almost three years after the incident, Israeli prosecutors said they were still preparing charges against 12 people for attacking Zada. Palestinian community organizations in Israel strenuously objected to what they saw as persecution of people who were acting on the spur of the moment to defend themselves just as anyone else might.

Adel Turki, the father of two sisters killed by Zada pointed out what many considered a bitter irony:
If the [suspect] had been Arab, it doesn't matter from where, from the territories, from Gaza, from Shfaram, it doesn't matter, and he came to an Israeli neighborhood, and he killed four people, what would they have done to him? They would have killed him, destroyed his house. The government should be ashamed.27
Zada's family were not subjected to any form of collective punishment although, the families of his victims were: the Israeli defense ministry ruled that the dead could not be legally defined as "victims of terror" because Zada was a Jew, hence the families could not by right receive compensation.28

Just weeks later, another Israeli Jew, also motivated by a desire to disrupt the removal of settlers from Gaza, murdered four Palestinians laborers prompting Amnesty International to call on Israel to end the "impunity" for those who attack Palestinians. Amnesty noted that despite a consistent rise in such violence, settlers "continue to be allowed to carry weapons and the Israeli authorities have taken no concrete measures to prevent the daily harassment and attacks against Palestinians and their property."29

In other cases, Israeli Jewish killers of Palestinians have been pardoned by the Israeli state and have continued to take part in anti-Palestinian incitement even as Israel insists it can never release Palestinians "with blood on their hands" as part of negotiated prisoner exchanges. For example, Uzi Sharbav, one of three Israeli Jews convicted of murdering three Palestinian students and injuring dozens in a bomb attack on a school in Hebron in 1983, was freed from prison by Israel's president in 1990. In March 2008, Sharbav signed a widely distributed statement calling for revenge attacks against Arabs following the Mercaz HaRav shootings.30

These examples fit into a much wider pattern of severe, indiscriminate and collective punishment of Palestinians, combined with impunity for Israeli Jews who commit crimes against the lives and property of Palestinians.

Haaretz recently noted an upsurge in settler attacks on Palestinians in the West Bank, including the firing of rockets bearing the names "Sharon 1" and "Sharon 2" at a Palestinian village. The newspaper noted, however, that most incidents go unreported because "cases are usually closed, for various reasons; even those that are heard by a court usually end in acquittal or a light sentence."31

Most of this discussion has focused on the impunity enjoyed by Israelis in a domestic context. Perhaps, an even more important layer of impunity is international; the Israeli officials and military officers who order and carry out collective punishments and other violations of the Fourth Geneva Convention can do so because none of the High Contracting Parties to Convention -states legally committed to enforcing it-have moved to take action against alleged Israeli violations. Palestinian human rights advocates believe that world governments' failure "to fulfill their legal and moral obligations" to hold Israel accountable under the Convention "has encouraged Israel to act as if it is above the law and encourages Israel continue to violate international human rights and humanitarian law."32

Seeking Justice Abroad

The impunity that Israelis have enjoyed domestically and internationally has forced Palestinians and others to seek justice in foreign jurisdictions. Most famously, 28 Palestinian survivors of the 1982 Sabra and Shatila massacres attempted to prosecute Ariel Sharon under Belgium's universal jurisdiction laws. This effort failed when Belgium changed its laws under foreign pressure.33

In 2005, the New York-based Center for Constitutional Rights filed a class action lawsuit in United States federal court in Washington, D.C. against retired Israeli Lieutenant General Moshe Ya'alon accusing him of war crimes and extra-judicial killing for his role in the 1996 Israeli attack on a United Nations compound in Qana, Lebanon that killed more than 100 Lebanese civilians seeking refuge there. The case was dismissed by the judge on the grounds that Ya'alon could not be sued because he was acting in an official capacity-a seemingly flagrant violation of the Nuremberg Principles.34

This month, Palestinians from the West Bank village of Bil'in filed suit in the Superior Court of Quebec against two Canadian companies that have been involved in constructing, marketing and selling residential units in the Israeli settlement of Modi'in Illit built on land seized from the village.35

In perhaps the most ambitious current case, the Gaza-based Palestinian Centre for Human Rights last month filed a war crimes lawsuit in Spain's highest court against seven former senior Israeli military and political leaders for the July 2002 bombing of an apartment complex in Gaza City, which killed the leader of the military wing of the Hamas movement along with 17 civilians. The accused officials include former Defense Minister Benjamin Ben-Eliezer, Ya'alon and former Air Force Chief Dan Halutz.36

Whether any of these cases is more successful than previous ones at curbing Israeli state vigilantism and impunity and bringing a measure of justice to Palestinians remains to be seen.

Ali Abunimah is a fellow at the Palestine Center in Washington, DC. He is an expert on Palestine, the Palestinian-Israeli conflict and is the author of One Country: A Bold Proposal to End the Israeli-Palestinian Impasse. Abunimah also co-founded The Electronic Intifada, an online publication about Palestine and the Palestine-Israeli conflict, Electronic Iraq and Electronic Lebanon.

The views expressed in this information brief are those of the author and do not necessarily reflect those of The Jerusalem Fund.

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1 Daum, Hanoch, "This is no time for mercy," Yediot Aharonot, 4 July 2008, [http://www.ynetnews.com/Ext/Comp/ArticleLayout/CdaArticlePrintPreview/1,2506,L-3563582,00.html].
2 "Israeli demo calls for razing of bulldozer attacker's home," Agence France Presse, 6 July 2008.
3 For example, U.N. Security Council Resolution 465 (1980), 607 (1988), 636 (1989), 641 (1989), 1322 (2000) all affirm the applicability of the convention to all the territories occupied by Israel in June 1967, including Jerusalem.
4 ICRC, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, p. 225. (Geneva: ICRC, 1958), cited in Under the rubble: house demolition and destruction of land and property, Amnesty International, May 2004, p. 60, [http://www.amnesty.org/en/library/asset/MDE15/033/2004/en/dom-MDE150332004en.pdf].
5 Fleck, Dieter (ed.), The Handbook of Humanitarian Law in Armed Conflict, p. 249, cited in Amnesty International, May 2004, p. 61.
6 For legal analysis: Amnesty International, May 2004, pp. 58-60.
7 "Near East: Switzerland calls on Israel to uphold international humanitarian law," Switzerland Department of Foreign Affairs, 3 July 2006, [http://www.news.admin.ch/message/index.html?lang=en&msg-id=5978].
8 See: "Transcript Of Press Conference By Secretary-General Ban Ki-Moon At Palais Des Nations, Geneva, 23 January 2008," SG/SM/11386/Rev.1*, [http://www.un.org/News/Press/docs/2008/sgsm11386.doc.htm] and Charbonneau, Louis, "Collective punishment for Gaza is wrong -U.N.," Reuters, 18 January 2008, [http://www.reuters.com/article/latestCrisis/idUSN18343083].
9 See: Kershner, Isabel, "Israel allows some supplies into Gaza," The New York Times, 22 January 2008, [http://www.nytimes.com/2008/01/22/world/middleeast/22mideast.html].
10 "Vatican envoy urges Israel to refrain from collective punishment in Gaza," Jerusalem Post, 26 January 2008, [http://www.jpost.com/servlet/Satellite?cid=1201367872361&pagename=JPost%2FJPArticle%2FShowFull].
11 "British aid agencies denounce 'collective punishment' in Gaza," Ekklesia, 6 March 2008, [http://www.ekklesia.co.uk/node/6862].
12 "Gaza Blockade - Collective Punishment," Amnesty International, July 2008, [http://www.amnesty.org/en/library/info/MDE15/021/2008].
13 "Cabinet decision will impose collective punishment on a civilian population, lead to grave breach of International Law," B'Tselem, 20 September 2007, [http://www.btselem.org/english/press_releases/20070920.asp].
14 "House demolitions as punishment," B'Tselem, (undated resource), [http://btselem.org/English/Punitive_Demolitions/Index.asp].
15 Quoted figures are from: Through No Fault of Their Own: Punitive House Demolitions during the al - Aqsa Intifada, B'Tselem, November 2004, [http://www.btselem.org/download/200411_Punitive_House_Demolitions_Eng.pdf]. Also see: Under the rubble: house demolition and destruction of land and property, Amnesty International, May 2004, [http://www.amnesty.org/en/library/asset/MDE15/033/2004/en/dom-MDE150332004en.pdf].
16 Stoil, Rebecca Anna, "MK's debate effectiveness of demolishing terrorists' homes," Jerusalem Post, 7 July 2008, [http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/ShowFull&cid=1215330889598].
17 Straschnov, Amnon, "Don't destroy terrorists' homes," Haaretz, 6 July 2008, [http://www.haaretz.com/hasen/spages/999127.html].
18 "Sanity now," Haaretz, 4 July 2008, [http://www.haaretz.com/hasen/spages/998856.html].
19 "Israeli demo calls for razing of bulldozer attacker's home," Agence France Presse, 6 July 2008.
20 See Abunimah, Ali, "Palestinians on the Verge of a Majority: Population and Politics in Palestine-Israel," Palestine Center Information Brief No. 162 (12 May 2008), [http://www.thejerusalemfund.org/images/informationbrief.php?ID=192].
21 "Barak orders demolition of Jerusalem, yeshiva terrorists' homes," Haaretz, 4 July 2008, [http://www.haaretz.com/hasen/spages/998668.html].
22 "PM Olmert following attack: Destroy the terrorist's house," Jerusalem Post, 2 July 2008, [http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShowFull&cid=1214726189976].
23 Ilan, Shahar, "New laws aim to revoke Israeli Arab terrorists' citizenship," Haaretz, 2 July 2008, [http://haaretz.com/hasen/spages/998347.html].
24 Sharon, Gilad, "Biting the hand that feeds you," Yediot Aharonot, 6 July 2008, [http://www.ynetnews.com/articles/0,7340,L-3564643,00.html].
25 Ilan, Shahar, "New laws aim to revoke Israeli Arab terrorists' citizenship," Haaretz, 2 July 2008, [http://haaretz.com/hasen/spages/998347.html].
26 "Israeli gunman kills four on bus," BBC News, 5 August 2005, [http://news.bbc.co.uk/2/hi/middle_east/4746591.stm].
27 "Zada killers dealt blow to rule of law," Jerusalem Post, 15 June 2008, [http://www.jpost.com/servlet/Satellite?cid=1212659736&pagename=JPost%2FJPArticle%2FShowFull].
28 They were later granted compensation as an "exceptional measure." See Shafir, Gershon, "The Israeli Model," in Alison Brysk and Gershon Shafir (eds.), National Insecurity and Human Rights: Democracies Debate Counterterrorism, (University of California Press, 2007), p.100.
29 On 17 August 2005, Asher Weisgan shot dead four Palestinian laborers at Shilo settlement. In September 2006, he was sentenced to four life terms but committed suicide weeks later. For Amnesty quote, see: "Amnesty International condemns killing of Palestinians by Israeli settler, calls for urgent measures to end settlers' impunity," Amnesty International, 18 August 2005, [http://www.amnesty.org/en/library/asset/MDE15/046/2005/en/dom-MDE150462005en.html].
30 See Abunimah, Ali, "Anti-Arab Racism and Incitement in Israel" Palestine Center Information Brief No. 161 (25 March 2008), [http://www.thejerusalemfund.org/images/informationbrief.php?ID=191].
31 "Too easy on settler crime," Haaretz, 9 July 2008, [http://www.haaretz.com/hasen/spages/1000239.html].
32 "Weekly Report: On Israeli Human Rights Violations in the Occupied Palestinian Territory," Palestinian Centre for Human Rights, 9 July 2008, [http://pchrgaza.org/files/W_report/English/2008/09-07-2008.htm].
33 For comprehensive resources on this case, see http://www.indictsharon.net.
34 See: http://ccrjustice.org/ourcases/current-cases/belhas-v.-ya'alon.
35 "Seeking Justice Abroad: Bil'in Village Council Submits Case before Canadian Court Against Canadian Corporations for Involvement in Illegal Settlement Construction," press release, Al-Haq, 10 July 2008, [http://www.alhaq.org/etemplate.php?id=379].
36 "PCHR Submits Lawsuit against Israeli Officials via Spanish National Court," press release, Palestinian Centre for Human Rights, 25 June 2008, [http://pchrgaza.org/files/PressR/English/2008/60-2008.html].

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