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The Collective Punishment Canard

Eleven days have now gone by since the abduction of three Israeli teenagers by Hamas terrorists. But rather than international sympathy building for the victims, their families, and a nation that has become transfixed by their fate, it is, instead, the Palestinians who appear to be winning the public-relations battle over this incident.

As even the New York Times finally reported in a belated article by Jerusalem bureau chief Jodi Rudoren, the Palestinian people seem united in their support for the kidnappers and dismay at the halting statements of condemnation of the crime uttered by Palestinian Authority leader Mahmoud Abbas. Palestinian mobs have taken to the streets in what is increasingly being thought of as a new intifada protesting the Israel Defense Forces’ attempts to find the boys and to hunt down Hamas terrorists as well as what appears to be the ineffective cooperation of the PA’s security forces with that effort.

Yet the narrative about the kidnapping and its aftermath now seems to be changing from one focused on the plight of the victims to whether the IDF has overstepped in its bounds. Many international critics as well as some on the Israeli left are echoing charges leveled by the Palestinians that the army’s operations are not only undermining the PA but that they constitute a form of collective punishment and are therefore illegal. That’s the line being adopted by some Israeli NGOs like B’Tselem. While such groups have a record of opposing virtually any measures undertaken by Israel to defend its citizens, the notion that the army’s actions are high-handed and do more to create trouble than to actually find the teenagers or to impede Hamas’s terror campaign is one that is gaining some traction in the media.

As the Times of Israel reported, even as it is supposedly assisting the IDF hunt for the kidnappers, the PA is claiming that the arrests of Hamas officials and the temporary closures of various areas in the West Bank where the search is being conducted is a form of collective punishment. But a strong distinction must be drawn between broad measures aimed at squeezing not only the PA but also the Palestinian people in a probably vain effort to force them to produce the boys and their captors and the Israeli army operations that are currently being conducted. While proposals such as the one mooted by Deputy Defense Minister Danny Danon for “a wide-reaching operation against the civilian population” of the terrorists would clearly be a form of collective punishment, what actually has been going on in the West Bank is nothing like that.

As legal expert and COMMENTARY contributor Eugene Kontorovich told the Times of Israel, there is a vast difference between police and military operations that may inconvenience civilians whose aim is to find captives and terrorists and those that are specifically aimed at making a broad population miserable:

“Rounding up suspects, or potential witnesses, is not punishment, but rather rudimentary investigative process,” Kontorovich said. “Especially when the crime is thought to be committed by a complex terror organization, the number of potential witnesses is high. There is no evidence whatsoever that the Palestinians are being rounded up just to get back at Palestinians, without any regard to their having potentially useful information.”

Collective punishment means targeting the broader community for the crimes of an armed group, Kontorovich added. “However, members of a criminal group can be punished for each others’ crimes as part of joint criminal enterprise. This is widely used against everyone from the Nuremberg defendants to drug dealing gangs.” Police often round up gang members after a crime hoping they can shed light on the perpetrators or that they themselves might be liable for offenses committed in furtherance of the joint criminal enterprise, he said.

The point is that so long as the IDF is focused on finding the boys and Hamasniks, what is happening on the ground in the West Bank cannot be considered collective punishment. Despite ceding operational control of most of the West Bank to the PA, as the sovereign power in the area Israel has an obligation to both root out terrorism and to protect is citizens. The reason why Palestinians have taken to the streets to protest the search and the arrests of Hamas members (as well as the seizures of caches of arms and explosives that were discovered in the course of those searches) is not because the IDF’s measures are unreasonable or cruel but that the Arab population opposes the safe return of the boy and any measures intended to hinder Hamas’s efforts to kidnap and/or kill more Israelis.

In a sense, the collective punishment charge has resonance not so much because of any intention on the part of the Israelis but because the overwhelming majority of the Palestinians seem to identify with the kidnappers. That is unfortunate not just because it complicates the efforts of the Israelis and any PA security forces that are actually trying to solve the crime but because it demonstrates the futility of efforts to revive the peace process. The three-fingered salute mocking the kidnapped boys and the pain of their families and the Israeli people that has been adopted by Palestinians and their social media shows just how great the gap between the two peoples have grown.

One needn’t be a supporter of Prime Minister Netanyahu and his government to understand that so long as the kidnapping of Israeli boys is thought to be an act of heroism that should be emulated, the political culture of the Palestinians will not allow any leader to make peace in their name. That’s tragic, but it should not deter Israel from doing everything possible to find the boys and to prevent Hamas from committing more acts of terrorism. Criticizing Israel for acting in this manner stems from from a desire to delegitimize any measures of self-defense, not the collective punishment canard.


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