Rule 103. Collective Punishments

Rule 103. Collective punishments are prohibited.
Volume II, Chapter 32, Section O.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This prohibition is an application, in part, of Rule 102 that no one may be convicted of an offence except on the basis of individual criminal responsibility. However, the prohibition of collective punishments is wider in scope because it does not only apply to criminal sanctions but also to “sanctions and harassment of any sort, administrative, by police action or otherwise”.[1]
The prohibition of collective punishments is stated in the Hague Regulations and the Third and Fourth Geneva Conventions.[2] The prohibition is recognized in Additional Protocols I and II as a fundamental guarantee for all civilians and persons hors de combat.[3]
The imposition of “collective penalties” was considered a war crime in the Report of the Commission on Responsibility set up after the First World War.[4] The customary nature of this rule, already applicable during the Second World War, was affirmed by the Military Tribunal of Rome in the Priebke case in 1997.[5] The specification that the imposition of collective punishments is a war crime is also to be found in the Statutes of the International Criminal Tribunal for Rwanda and of the Special Court for Sierra Leone.[6]
The prohibition of collective punishments is contained in numerous military manuals.[7] This prohibition is also set forth in the legislation of many States.[8] It is further supported by official statements.[9]
In the Delalić case, the International Criminal Tribunal for the former Yugoslavia stated that internment or assigned residence under Article 78 of the Fourth Geneva Convention is an exceptional measure that may never be taken on a collective basis.[10]
While human rights law does not explicitly prohibit “collective punishments” as such, such acts would constitute a violation of specific human rights, in particular the right to liberty and security of person and the right to a fair trial. In its General Comment on Article 4 of the International Covenant on Civil and Political Rights (concerning states of emergency), the UN Human Rights Committee stated that States parties may “in no circumstances” invoke a state of emergency “as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance … by imposing collective punishments”.[11]
[1] Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 3055, see also § 4536.
[2] Hague Regulations, Article 50 (cited in Vol. II, Ch. 32, § 3718); Third Geneva Convention, Article 87, third paragraph (ibid., § 3720); Fourth Geneva Convention, Article 33, first paragraph (ibid., § 3721).
[3] Additional Protocol I, Article 75(2)(d) (adopted by consensus) (ibid., § 3723); Additional Protocol II, Article 4(2)(b) (adopted by consensus) (ibid., § 3724).
[4] Report of the Commission on Responsibility (ibid., § 3729).
[5] Italy, Military Tribunal of Rome, Priebke case (ibid., § 3795).
[6] ICTR Statute, Article 4(b) (ibid., § 3735); Statute of the Special Court for Sierra Leone, Article 3(b) (ibid., § 3728).
[7] See, e.g., the military manuals of Argentina (ibid., §§ 3738–3739), Australia (ibid., § 3740), Belgium (ibid., § 3741), Benin (ibid., § 3742), Burkina Faso (ibid., § 3743), Cameroon (ibid., § 3744), Canada (ibid., § 3745), Congo (ibid., § 3747), Ecuador (ibid., § 3748), France (ibid., §§ 3749 and 3751), Germany (ibid., §§ 3752–3754), Israel (ibid., § 3755), Italy (ibid., § 3756), Mali (ibid., § 3757), Morocco (ibid., § 3759), Netherlands (ibid., § 3760), New Zealand (ibid., § 3761), Nicaragua (ibid., § 3762), Romania (ibid., § 3763), Russian Federation (ibid., § 3764), Senegal (ibid., § 3765), Spain (ibid., § 3766), Sweden (ibid., § 3767), Switzerland (ibid., § 3768), Togo (ibid., § 3769), United Kingdom (ibid., §§ 3770–3771), United States (ibid., §§ 3772–3774) and Yugoslavia (ibid., § 3775).
[8] See, e.g., the legislation of Australia (ibid., § 3777), Bangladesh (ibid., § 3778), Bosnia and Herzegovina (ibid., § 3779), Democratic Republic of the Congo (ibid., § 3781), Côte d’Ivoire (ibid., § 3782), Croatia (ibid., § 3783), Ethiopia (ibid., § 3784), Ireland (ibid., § 3785), Italy (ibid., § 3786), Lithuania (ibid., § 3788), Norway (ibid., § 3789), Romania (ibid., § 3790), Slovenia (ibid., § 3791), Spain (ibid., § 3792) and Yugoslavia (ibid., § 3793); see also the draft legislation of Argentina (ibid., § 3776).
[9] See, e.g., the statements of the United States (ibid., §§ 3798–3799).
[10] ICTY, Delalić case, Judgment (ibid., § 3808).
[11] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 3809).