Chapter I Collective Punishment

Collective punishment is defined as “a punitive sanction inflicted on a group of persons without regard to individual responsibility for the deed or event which provokes the penalty.”1 Acts of collective punishment are the stark- est manifestation of the principle of collective responsibility under examina- tion. Where collective punitive measures are imposed, all members of the group are forced to bear responsibility and to share the punishment equally with the actual offender. Historically, it has been during wartime that innocent persons have been most likely to suffer for the acts of the guilty. Collective punishment has been frequently used by belligerents when the actual offenders could not be found and as a deliberate policy for countering hostility. In his writings, Plato urged a degree of restraint in the factional fighting between Greeks. He said that the parties should not “ravage Greek territory nor burn habitations . . . [nor] admit in any city all the population are their ene- mies, men, women, and children, but will say that only a few at any time are their foes, those, namely, who are to blame for the quarrel.”2 They would, nonetheless, “carry on the conflict only to the point of compelling the guilty to do justice by the pressure of the suffering of the innocent.”3 Hugo Grotius, on the other hand, stressed that participation in punishment arises from partic- ipation in guilt, and “no one who is innocent of wrong may be punished for the wrong done by another.”4 In the modern legal era it has become a fundamen- tal principle that individuals may be punished only for offenses for which they are personally responsible.5 And in signalling the decline of the legitimacy of

1 Encyclopedia of Public International Law, Vol. I, North Holland: Max Planck Institute for Comparative and International Law, 2000, p. 645. 2 Republic, Book V, 471b, in Edith Hamilton and Huntington Cairns (eds.), The Collected Dialogues of Plato, Princeton: Princeton University Press, 1989, p. 710. 3 Ibid. 4 Hugo Grotius, De Jure Belli ac Pacis Libri Tres, Amsterdam: Johan Blaeu, 1646, Book II, Chapter XXI, IX, XII, translated by Francis W. Kelsey, Vol. II, Washington, Carnegie Endowment for International Peace, Division of International Law, 1925, pp. 537, 539. 5 For example, Article 7 of the African Charter on Human and Peoples’ Rights states that “[p]unishment is personal and can be imposed only on the offender,” African Charter on Human and Peoples’ Rights (1981), entered into force 21 October 1986, O.A.U. Doc. CAB/LEG/67/3 Rev. 5. The American Convention on Human Rights sets out in Article 5, paragraph 3 that “[p]unishment shall not be extended to any person other than the

7 8 • Collective Responsibility Under International Law such a concept of collective responsibility during wartime, most of the major international humanitarian law instruments contain a clear prohibition on acts of collective punishment. This chapter will trace the evolution of the prohibi- tion of collective punishment. Prior to the codification of international humanitarian law, reliance on a concept of collective responsibility was indeed commonplace, especially dur- ing the invasion or occupation of hostile territories. During its war with Mexico of 1847–48, the United States threatened to impose punishment on a collective basis: Injuries committed by individuals, or parties of Mexico, not belong- ing to the public forces, upon individuals, small parties, trains of wag- ons and teams, or of pack mules, or on any other person or property belonging to this army, contrary to the laws of war, shall be punished with rigour; of [sic], if the particular offenders not be delivered up by the Mexican authorities, the punishment shall fall upon entire cities, towns, or neighborhoods.6 During the U.S. Civil War, collective responsibility was also widely seen as an acceptable basis for the imposition of punishment. During that war, Major General Henry W. Halleck, Chief of Staff of the U.S. Army, maintained that retaliation “should be confined, as a general rule, to the individuals who have committed the violation of public law.”7 Subsequently, however, while pointing out that such retaliation “must never degenerate into savage or barbarous cru- elty,” he asked: if the actual authors and agents of this cruelty to our soldiers can not be reached, may we retaliate upon individuals who have not been active participants in such cruelty? We answer, undoubtedly yes. This is a case where the entire community becomes responsible for the acts of its rulers, and each individual member is subject to the law of retaliation.8 After the conclusion of the Civil War, Halleck was of the opinion that pri- vate property could be seized, criminal,” American Convention on Human Rights (Pact of San José), (1969), entered into force 18 July 1978, 1144 U.N.T.S. 123. 6 Proclamation issued by Major General Winfield Scott, General-in-Chief of the American Forces, 11 April 1847, Messages of the President of the United States with the Correspondence, Therewith Communicated, Between the Secretary of War and Other Officers of the Government, on the Subject of the Mexican War, Washington: Wendell and Benthuysen, 1848, p. 937, cited in Bernard Brungs, Hostages, Prisoners Reprisals, and Collective Penalties: The Development of the International Law of War with respect to Collective and Vicarious Punishment, Volumes I–III (Unpublished PhD Dissertation), Georgetown University, 1968, p. 132 (on file with author). 7 H.W. Halleck, International Law; or, Rules Regulating the Intercourse of States in Peace and War, San Francisco: H.H. Bancroft & Co., 1861, p. 296. 8 Henry Wager Halleck, “Retaliation in War,” 6 American Journal of International Law 1 (1912) 107, p. 111.