Practice Relating to Rule 103. Collective Punishments

The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include:

All forms of repression … of women and children, including … collective punishment … committed by belligerents in the course of military operations or in occupied territories, shall be considered criminal. 

The following acts against any of the persons mentioned in section 7.1 [persons not, or no longer, taking part in military operations, including civilians, members of armed forces who have laid down their weapons and persons placed hors de combat by reason of sickness, wounds or detention] are prohibited at any time and in any place: … collective punishment. 

The following acts are prohibited at any time and in any place whatsoever:

[The 1949 Geneva Convention IV] prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination … The following are expressly prohibited:

1. [The 1977 Additional Protocol I] provides that all persons in the power of a party to the conflict are entitled to at least a minimum of humane treatment without adverse discrimination on grounds of race, gender, language, religion, political discrimination or similar criteria. It states in part:

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:

Although [the 1977 Additional Protocol II] contains no provisions relating to enforcement or punishment of breaches, it does contain a statement of fundamental guarantees prohibiting at any time and anywhere:

I.1. Protection of the civilian population

…

Geneva Convention IV prohibits using the civilian population as a shield … Furthermore, “collective penalties and likewise all measures of intimidation or of terrorism” towards the civilian population are prohibited. 

Article 30: During periods of exceptional circumstances, state of emergency or state of siege, actions of the defence forces must conform to national law and international humanitarian law.

Article 31: Defence forces personnel must in all circumstances refrain from committing the following acts: … collective punishments and all other acts affecting the physical and/or psychological integrity as well as the well-being of individuals. 

Article 30: During periods of exceptional circumstances, state of emergency or state of siege, actions of the defence forces must conform to national law and international humanitarian law.

Article 31: Defence forces personnel must in all circumstances refrain from committing the following acts: … collective punishments and all other acts affecting the physical and/or psychological integrity as well as the well-being of individuals. 

It is expressly prohibited to carry out the following acts against the civilian population or individual civilians, wounded, sick or prisoners:

Until and during World War II, Occupying Powers occasionally sought to secure observance of the law of armed conflict by the inhabitants of the occupied territory by the imposition or threat of collective penalties. Such action was contrary to HR Art. 50, and any collective penalties are now expressly forbidden by [the 1949 Geneva Convention IV] Art. 33 and [the 1977 Additional Protocol I] Art. 75 (2)(d). 

Although [the 1977 Additional Protocol II] contains no provisions relating to enforcement or punishment of breaches, it does contain a statement of fundamental guarantees prohibiting at any time and anywhere: … collective punishment. 

Under any circumstances international humanitarian law ensures humane treatment during an armed conflict, of persons not directly involved in combat operations … In particular, the following shall be prohibited with regard to such persons: … collective punishment … [and] threats to commit any of the above acts. 

…

The fundamental norms/val[u]es which underlie the LOAC are:

…

…

…

- Collective punishment and all other acts of intimidation or terrorism against civilians are prohibited.

…

…

…

- Collective Punishment. This type of punishment is absolutely prohibited.

…

Conclusion

- Specific areas of fundamental protection are honour, women and children, lives and health of all persons (…), the taking of hostages, collective punishment[.] 

…

…

…

Disciplinary punishments applicable to POW are the same that can be imposed upon members of the same armed forces of the Detaining Power. However, collective punishment, corporal punishment, imprisonment without daylight, torture, cruelty and deprivation of rank are forbidden.

…

…

Geneva Convention IV articles 28 to 34 grant further protection to civilians. These articles determine the following:

…

…

- A protected person may not be punished for an offence that that person has not committed.

- Collective penalties, intimidation or terrorism, pillage and reprisals are prohibited against protected persons.

…

…

The following prohibitions exist regarding conduct in occupied territories ([1949] Geneva Convention IV articles 31 to 34):

[N]o person who is captured or detained in relation to an armed conflict remains unprotected under the law of armed conflict and is entitled, at all times, to minimum guarantees. [These include] … prohibition of the following acts at any time and in any place, whether committed by civilian or military agents: … collective punishments. 

- persons taking no active part in the hostilities;

- members of armed forces who have laid down their arms;

- those placed hors de combat by sickness, wounds, detention, or any other cause. 

The Hague Rules forbid collective punishment, in the form of a general pecuniary or other penalty, of the population for acts of individuals for which the population as a whole cannot be regarded as jointly and severally responsible. It was formerly thought that the prohibition did not exclude reprisals against a locality or community for some act committed by its inhabitants or members who cannot be identified. However, the Civilian Convention, Art. 33 has prohibited collective penalties and has expressly adopted the principle that “no protected person may be punished for an offence he or she has not personally committed”. 

The following acts are prohibited “at any time and in any place whatsoever”:

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

Article 270.- War Crimes against the Civilian Population.

Whoever, in time of war, armed conflict or occupation organizes, orders or engages in, against the civilian population and in violation of the rules of public international law and of international humanitarian conventions:

is punishable with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions …is liable to imprisonment. 

With respect to the persons mentioned above [i.e. persons not directly participating in hostilities or who have laid down their arms as well as persons placed hors de combat by illness, wounds, detention or any other reason], the following actions are prohibited anytime and anywhere:

“War crime” shall also mean any of the following acts committed in armed conflicts:

Anyone who commits one of the war crimes provided for in Article 10 of this law shall be punished by the following penalties:

Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:

26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.

26.3. The following are war crimes:

[A] guarantee provided by Article 78 of the [1949] Fourth Geneva Convention and Article 4(2)(b) of the [1977] Additional Protocol II, consists in the prohibition of internment as a collective punishment, meaning that this internment can only be ordered on a case-by-case basis, and not as a collective measure. 

Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the prohibition of collective punishment.  [footnote in original omitted]

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

…

The accused’s position is stated to be that this Court has no jurisdiction to try him.

…

… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

…

On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

…

The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

…

… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

…

To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

…

Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

…

I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

…

It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

…

In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

…

To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

…

According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

…

I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

…

Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

Cuba expresses its strong concern at the constant deterioration of the situation in the Occupied Palestinian Territory, including East Jerusalem, owing … to … illegal policies and practices, like the inhumane and destructive measures of collective punishment of the Palestinian civilian population, which violate the rights of the Palestinian people and worsen their socio-economic condition, resulting in a dire humanitarian crisis. 

Cuba reiterates its great concern at the constant deterioration of the situation in the Occupied Palestinian Territory, including East Jerusalem, owing … inter alia to … illegal policies and practices, like the inhumane and destructive measures of collective punishment of the Palestinian civilian population, including the blockade of Gaza.

We reiterate the call on the international community to demand that the Israeli authorities immediately end the illegal, cruel and genocidal blockade against the Palestinian people in the Gaza Strip … [Israel] … must … comply with the legal obligations arising from the [1949] Fourth Geneva Convention and relevant resolutions of the United Nations. 

International humanitarian law contains in Additional Protocol I to the Geneva Conventions a series of basic fundamental guarantees which apply to any person in a conflicting party’s custody. The persons to whom it applies, for example people who do not have the status of prisoners of war, must always be treated humanly and guaranteed right to personal integrity, honour, belief and religion. The following acts, which involve violence against persons life, health or physical or mental well being, are without exception prohibited, this is regardless of whether they relate to civilian or military officials:

The Government has consistently called for an end to the isolation of the people of Gaza, in particular through the reopening of crossing points for the movement of people and goods. Gaza has been isolated, in effect, since the Hamas takeover in June 2007, even during the ceasefire between Israeli forces and Hamas that was broadly respected from 19 June 2008 until 4 November 2008. Since June 2007, Israel has maintained the closure of all border crossings for the movement of people, with limited exceptions. … The Government agrees with those who say that the effective isolation of Gaza constitutes collective punishment and is illegal under international humanitarian law. 

The Government remain seriously concerned about the humanitarian situation in Gaza, which has effectively been isolated since the Hamas takeover in June 2007, even during a ceasefire between Israeli forces and Hamas which was broadly respected from 19 June 2008 until 4 November 2008. The Government have consistently called for an end to the isolation of the people of Gaza, in particular through the re-opening of crossing points for the movement of people and goods.

…

The Government agree with those who state that the effective isolation of Gaza constitutes collective punishment and is illegal under international humanitarian law.

…

Ireland also raised the situation in Gaza during the Universal Periodic Review of Israel at the UN Human Rights Council in Geneva on 4 December, calling on Israel to respect its obligations under international human rights instruments and international humanitarian law. 

I think that Israel is the only state in the world in which its Minister of Defense has today, during a time of almost war, met with the Attorney General, the Minister of Justice, and Foreign Ministry experts on international law, in order to speak about and understand the terms of proportionality in accordance with how the IDF [Israel Defense Forces] works and will continue to work on the ground. So, basically, it is not something that can be judged. I hope that the international community knows that we are trying to avoid civilian casualties, and that what is called “collective punishment” goes against our values and our system. 

[The delegate of Malaysia] said that … Israel, as the [O]ccupying Power in the Occupied Palestinian Territory, had failed to ensure that the people of Palestine lived a life free of misery, by blatantly disregarding international law, including the [1949] Geneva Conventions … Its list of violations included … collective punishment through its devastating blockade in Gaza. 

[T]he Separation Wall constitutes a collective punishment that affects all Palestinians and makes no distinction between the civilian population at large and those that commit hostile acts, and thus clearly violates both the 1907 Hague Regulations and the Fourth Geneva Convention of 1949.

Article 33 of the Fourth Geneva Convention states:

Article 50 of the 1907 Hague Regulations likewise states:

Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions.  

Israel is entitled to defend itself against being fired upon, but to interrupt electricity and fuel supplies to the civilian population in Gaza constitutes collective punishment and is not compatible with international law. 

…

Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions.  [footnotes in original omitted]

We support the principle that [all persons who are in the power of a party to a conflict and who do not benefit from more favorable treatment under the Conventions] not be subjected to … collective punishments. 

Iraqi policy provided for the collective punishment of the family of any individual who served in or was suspected of assisting the Kuwaiti resistance. This punishment routinely took the form of destruction of the family home and execution of all family members. Collective punishment is prohibited expressly by Article 33 [of the 1949 Geneva Convention IV]. 

Calls upon Israel to cease immediately its policy of enforcing collective punishments, such as the demolition of houses and closure of the Palestinian territory, measures which constitute flagrant violations of international law and international humanitarian law, endanger the lives of the Palestinians and also constitute a major obstacle in the way of peace. 

Gravely concerned at the continued deterioration of the situation in the occupied Palestinian territory and at the gross violations of human rights and international humanitarian law, in particular … collective punishments,

…

12. Expresses its deep concern again at the military siege imposed on the Palestinian territory and the isolation of Palestinian towns and villages from each other through the establishment of military roadblocks that are used as a trap to kill Palestinians, which contribute, together with other factors, to the acts of violence that have been prevailing in the region for two and a half years, calls upon the Government of Israel to immediately put an end to this practice and immediately lift its military siege of Palestinian towns and villages, and reaffirms that these collective punishments are prohibited under international law and constitute a grave violation of the provisions of the Fourth Geneva Convention and Protocol I Additional to the Geneva Conventions. 

Taking into consideration the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (Fourth Geneva Convention), the provisions of Additional Protocol I thereto of 1977 and the Hague Convention IV, of 18 October 1907, and Annexed Regulations respecting the Laws and Customs of War on Land,

Recalling resolutions of the Security Council, the General Assembly and the Commission on Human Rights relating to the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem, since the 5 June 1967 war,

Reaffirming the applicability of the Fourth Geneva Convention to the Palestinian territories occupied since the June 1967 war, including East Jerusalem,

…

Gravely concerned at the continued deterioration of the situation in the Occupied Palestinian Territory and at the gross violations of human rights and international humanitarian law, in particular … collective punishments …

…

12. Also strongly condemns acts that consist of imposing collective punishments, military siege of Palestinian territories, isolating Palestinian towns and villages from each other by military roadblocks used as a trap to kill Palestinians, demolishing houses and levelling agricultural lands, as these practices contribute, together with other factors, to the acts of violence that have prevailed in the region for over three and a half years, and calls upon the Government of Israel immediately to put an end to these practices and to lift its military siege of Palestinian towns and villages and its military roadblocks, and affirms anew that such collective punishments are prohibited under international law, as they constitute grave violations of the provisions of the Fourth Geneva Convention and Additional Protocol I thereto, and are also war crimes;

…

15. Affirms anew that the demolitions carried out by the Israeli occupying forces of at least 30,000 Palestinian houses, facilities and property constitute grave violations of articles 33 and 53 of the Fourth Geneva Convention and that acts of levelling farmlands, uprooting trees and destroying what is left of the Palestinian infrastructure constitute a form of collective punishment to which Palestinians are subjected, grave violations of the provisions of international humanitarian law and war crimes according to international law. 

Recalling the applicability of the Geneva Convention relative to the Protection of Civil Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem, and the relevant resolutions of the Security Council and the Commission on Human Rights,

…

Asserting that the punitive measures imposed by Israel, the occupying Power, on the Palestinian civil population, including collective punishment, border closures and severe restrictions on the movement of people and goods, arbitrary arrests and detentions, destruction of homes and vital infrastructure, including religious, educational, cultural and historical sites, led to a steep deterioration in the socio-economic conditions, perpetuating a dire humanitarian crisis throughout the Occupied Palestinian Territory, including East Jerusalem, and affirming that these punitive measures violate the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights,

…

1. Reiterates that all actions and punitive measures taken by Israel, the occupying Power, in the Occupied Palestinian Territory, including East Jerusalem, in violation of the relevant provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and contrary to the relevant resolutions of the Security Council, are illegal and have no validity, and thereby demands that Israel, the occupying Power, comply fully with its provisions and cease immediately all measures and actions taken in violation and in breach of the Convention, including extrajudicial executions. 

Affirming the applicability of the Geneva Convention relative to the Protection of Civil Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem, and to other occupied Arab territories,

…

2. Demands that Israel, the occupying Power, end its military operations in the Occupied Palestinian Territory, abide scrupulously by the provisions of international humanitarian law and human rights law, and refrain from imposing collective punishment on Palestinian civilians. 

Violations of common article 3 of the Geneva Conventions and of Article 4 of Additional Protocol II thereto committed in an armed conflict not of an international character have long been considered customary international law. 

Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the [2002 Statute of the Special Court for Sierra Leone].  [emphasis in original]

Members of the AFRC/RUF subordinate to and/or acting in concert with [the accused] committed the crimes set forth … in paragraphs 35 through 60 and charged in Counts 3 through 13 [of the indictment], as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF. 

Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the [2002 Statute of the Special Court for Sierra Leone].  [emphasis in original]

Members of the AFRC/RUF subordinate to and/or acting in concert with [the accused] committed the crimes set forth … in paragraphs 33 through 58 and charged in Counts 3 through 13 [of the indictment], as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF. 

Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the [2002 Statute of the Special Court for Sierra Leone].  [emphasis in original]

Members of the AFRC/RUF subordinate to and/or acting in concert with [the accused] committed the crimes set forth … in paragraphs 36 through 61 and charged in Counts 3 through 13 [of the indictment], as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF. 

176. The Indictment under Count 7 charges the Accused with the offence of collective punishments as a serious violation of Common Article 3 and of Additional Protocol II pursuant to Article 3(b) of the [2002 Statute of the Special Court for Sierra Leone]. This Count relates to the Accused’s alleged responsibility for the commission by the CDF, largely Kamajors, of the crimes charged in Counts 1 though 5 in order to punish the civilian population for their support to, or failure to actively resist, the combined RUF/AFRC forces.

177. The prohibition against collective punishments in Article 3(b) of the Statute derives from Article 4(2)(b) of Additional Protocol II, which is in turn based on the first paragraph of Article 33 of Geneva Convention IV.

178. The prohibition on collective punishments has been included in conventions on international humanitarian law since 1899 and was relied on by the ICTY Trial Chamber in Martic to find that the prohibition on reprisals is also part of customary international law. In light of the above, the Chamber finds that there is individual criminal responsibility for the offence of collective punishments [in] customary international law.

179. The Chamber notes that the prohibition against collective punishment is identified broadly as one of the fundamental guarantees of humane treatment in Article 4 of Additional Protocol II. The Chamber finds that this prohibition is to be understood as encompassing not only penal sanctions but also any other kind of sanction that is imposed on persons collectively.

180. Based on Article 4 of Additional Protocol II to the Geneva Conventions and Article 33 of the Fourth Geneva Convention, the Chamber is of the view that the constitutive elements of the crime of collective punishments under Article 3(b) of the Statute are:

181. As noted above, the term punishment in the first element is meant to be understood in its broadest sense and refers to all types of punishments. It does not refer only to punishments imposed under penal law. 

[T]his Chamber takes the view that the prohibition of collective punishments in international humanitarian law is based on one of the most fundamental principles of domestic criminal law that is reflected in national systems around the world: the principle of individual responsibility. The principle of individual responsibility requires that, whether an accused be tried singly or jointly, a determination must be made as to the penal responsibility and appropriate punishment of each individual on trial. 

221. … [T]he Appeals Chamber … sets forth the following elements for the crime of collective punishments under Article 3.b. of the [2002] Statute [of the Special Court for Sierra Leone] as stated by the Trial Chamber:

222. Article 3.b. of the Statute is based on Article 33 of the [1949] Fourth Geneva Convention and Article 4(2)(b) of [the 1977] Additional Protocol II to the Geneva Conventions, both of which prohibit collective punishments against protected persons. The prohibition of collective punishments embodies an elementary principle of humanity that penal liability is personal in nature. Restrictive interpretations of collective punishments must be avoided because the prohibition of this crime is one of the fundamental guarantees of humane treatment. The prohibition on collective punishments must be understood in its broadest sense so as to include not only penalties imposed during normal judicial processes, such as sentences rendered after due process of law, but also any other kind of sanction such as a fine, confinement or a loss of property or rights.

223. The Appeals Chamber emphasises that a “punishment” for the purposes of the crime of collective punishments is an indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible. As such, a “punishment” is distinct from the targeting of protected persons as objects of attack. The targeting of protected persons as objects of war crimes and crimes against humanity may not necessarily be predicated upon a perceived transgression by such persons and therefore does not constitute collective punishments. Thus, the mens rea element of collective punishments represents the critical difference between this crime and the act of targeting. While targeting takes place on account of who the victims are, or are perceived to be, the crime of collective punishments occurs in response to the acts or omissions of protected persons, whether real or perceived. The targeting of protected persons who are residents of a particular village, for instance, is therefore distinct from the collective punishment of protected persons in a given village who are perceived to have committed a particular act, such as providing rebel forces with shelter.

224. The Appeals Chamber finds that the correct definition of collective punishments is:

Collective punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITONAL PROTOCOL II, punishable under Article 3.b. of the [2002 Statute of the Special Court for Sierra Leone].  [emphasis in original]

These attacks were carried out primarily to terrorize the civilian population, but also were used to punish the population for failing to provide sufficient support to the AFRC/RUF [Revolutionary United Front], or for allegedly providing support to the Kabbah government or to pro-government forces. The attacks included unlawful killings, physical and sexual violence against civilian men, women and children, abductions and looting and destruction of civilian property. 

673. Article 3(b) of the [2002 Statute of the Special Court for Sierra Leone], which is based on Article 4(2)(b) of Additional Protocol II, prohibits collective punishments. The notion of “collective punishments” goes back to Article 50 of the 1899 Hague Regulations, according to which “[n]o general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible.” This prohibition was later incorporated in Article 33(1) of Geneva Convention IV, Article 75(2)(d) of Additional Protocol I and Article 4(2)(b) of Additional Protocol II. It is now firmly enshrined in a variety of international documents and in domestic military legislations.

674. Upon the inception of the Special Court, the United Nations Secretary General (“Secretary General”) declared that “[v]iolations of common Article 3 of the Geneva Conventions and of Article 4 of Additional Protocol II thereto committed in an armed conflict not of an international character have long been considered customary international law, and in particular since the establishment of the two International Tribunals, have been recognised as customarily entailing the individual criminal responsibility of the accused.”

675. In light of the foregoing, the Trial Chamber finds that at the time relevant to the Indictment, customary international law imposed individual criminal liability for the crime of collective punishments, as a violation of Common Article 3 and of Additional Protocol II. 

676. In addition to the chapeau requirements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3 of the [2002 Statute of the Special Court for Sierra Leone], the Trial Chamber adopts the following elements of the crime of collective punishments:

677. In respect of the first element, The Kanu Defence submits that the Prosecution is obliged to lead evidence that the punishment was imposed for acts which the victims did not in actual fact commit. In contrast, the Prosecution argues that “[c]ivilian victims were punished arbitrarily by the AFRC because part of the population was, in the AFRC’s view, supposedly failing to support them” and that “the punishments inflicted in the present instance are equally unlawful when committed against civilians who might have indeed resisted against the AFRC/RUF.”

678. The prohibition of collective punishments in international humanitarian law is based on one of the most basic tenets of criminal law, the principle of individual responsibility. This principle affirms that responsibility is personal in nature and that no one may be punished for an act he or she has not personally committed.

679. Article 3 of the Statute is a reproduction of Article 4(2) of Additional Protocol II (which includes “collective punishments” – Article 4(2)(b) – among its fundamental guarantees). Article 4(2)(b) of Additional Protocol II is based on Article 33 of the Fourth Geneva Convention, which provides 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.” Thus punishments imposed upon protected persons who are not individually responsible for the act which forms the object of the punishment are absolutely prohibited.

680. The first element mentioned above concerns punishments which are not based on individual responsibility but which are inflicted upon persons by wrongfully ascribing collective guilt to them. Such punishments are imposed upon persons for acts which they may or may not have committed. In other words, the punishments are imposed indiscriminately without establishing individual responsibility through some semblance of due process and without any real attempt to identify the perpetrators, if any. It is in this context that the first element is understood to mean: “A punishment imposed upon protected persons for acts that they have not committed.” The Trial Chamber therefore rejects the submission of the Kanu Defence that the Prosecution is obliged to prove that the victims of the punishment did not actually commit the acts for which they were punished.

681. The Trial Chamber further notes that this crime covers an extensive range of possible “punishments”. The ICRC Commentary of Article 75.2(d) of Additional Protocol I advocates an extensive interpretation of the crime of collective punishments, to include

Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the [2002 Statute of the Special Court for Sierra Leone].  [emphasis in original]

… the AFRC/RUF also committed … crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF. 

123. The Chamber recalls that the prohibition against collective punishments in Article 3(b) of the [2002] Statute [of the Special Court for Sierra Leone] is derived from Article 4(2)(b) of [the 1977] Additional Protocol II, which is in turn based on the first paragraph of Article 33 of the [1949] Fourth Geneva Convention.

124. The Appeals Chamber has held that:

125. The Chamber observes that the prohibition on collective punishments has been included in conventions on international humanitarian law since 1899 and was relied on by the ICTY Trial Chamber in Martic to find that the prohibition on reprisals is also part of customary international law. In light of the above, the Chamber is of the opinion that collective punishments are prohibited at customary international law and entail individual criminal responsibility.

126. The Appeals Chamber has clarified that the correct definition of collective punishments is:

127. The Appeals Chamber has emphasised that the mens rea element of collective punishments, that is the specific intent to punish collectively, is the critical difference between the crime of collective punishments and the targeting of protected persons or objects. Victims of war crimes or crimes against humanity may be targeted because of who they are perceived to be, but victims of collective punishments are targeted because of something they are perceived to have done.  [footnotes in original omitted]

States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance … by imposing collective punishments.