Collective guilt and Collective Punishment
Photograph Source: Wafa (Q2915969) – CC BY-SA 3.0
The continued practice of branding other countries and peoples collectively guilty for past or ongoing crimes has not abated. The imposition of collective punishment in the form of mass expulsions, blockades and unilateral coercive measures[1] entails retrogression in terms of civilization and human rights.
From the moral and religious perspective, the concept of collective guilt contravenes the imperatives of forgiveness and reconciliation, the brotherhood and sisterhood of the human family[2], and the hope for a modus vivendi in friendship and international solidarity.
From the historical perspective, collective guilt has been a ubiquitous weapon in the cognitive warfare against perceived or imagined adversaries. Among the bogus justifications for holding whole populations responsible for the crimes of their governments is the idea that democracy in those countries actually functions and that the people have accepted or even supported the crimes imputed to their governments. But can this be substantiated? Over the ages minority groups have also been accused of the most abstruse crimes, e.g. causing disease or poisoning wells. Europe has a long history of incitement against different peoples, including Jews, Roma, Sinti, Slavs, “Untermenschen”, Germans, Serbs, Afghans, Muslims, Africans, migrants, etc.
Collective guilt frequently uses scapegoats, simplifying the root causes of problems and then assigning guilt to a particular ethnic, linguistic or religious group. Yet, collective punishment has also been directed against “heretics”, e.g. during the Albigensian crusades of the 12th-13th centuries against the Cathars in France, where punishment tended to be indiscriminate. Among its many massacres, we recall the extermination of the civilian population of the city of Beziers on 22 July 1209, where it is reported that the papal envoy Arnaud Amalric said “kill them all, God will know his own”. “Caedite eos. Novit enim Dominus qui sunt eius.” As many as 14,000 persons may have been killed, including the faithful and non-heretical Christians who had unwisely refused to flee the city.
Many pogroms against Jews occurred in Europe during the Middle Ages, the Renaissance period, the 18th-century Enlightenment. Such mass violence took place not only in tsarist Russia, Ukraine and Poland[3] during the nineteenth and twentieth centuries, but also in Western Europe, where Jews were marginalized, excluded, dehumanized, demonized, blamed for “desecration of the host,” the black death of the 14th century and for other pandemics[4], and subjected to mass expulsion.
The collective-guilt mindset is generated not only by governments but is aided and abetted by superstition and sometimes instrumentalized by chauvinistic groups and organizations. It builds on popular myths and caters to latent fears and insecurities in society. The incitement to hatred is waged before, during and after armed conflicts. Indeed, many wars have been preceded by deliberate and systematic incitement to hatred of the adversary. Hitler’s war on the Jewish people was largely based on fake news and fake history, on a caricature of the Jewish people. Alas, many Germans allowed themselves to be indoctrinated. But many did not.
The Jews of the Warsaw ghetto suffered untold indignities until they rebelled in May 1943. At its height, there were 460,000 Jews in the ghetto, but gradually the Jews were transported to extermination camps, notably Treblinka. The Nazis were merciless in their destruction of the ghetto and the punishment of the Jewish insurgents. Such hatred invariably breeds more hatred hatred.
Collective guilt can turn against any group of people. Perpetrators can become victims of a reverse collective guilt syndrome. After the end of the Second World War, the Germans were held collectively guilty for Nazi crimes. Revenge was overwhelming: 14 million ethnic Germans were expelled from their 700-year homelands in East Prussia, Pomerania, Silesia, East Brandenburg, Bohemia, Moravia, Hungary and Yugoslavia, resulting in at least two million deaths[5], some who were direct victims of violence, rape and even torture, and those who lost their lives as a result of the expulsion, which was accompanied by exposure to inclement weather, cold, lack of food and medicine.[6] This was the greatest mass expulsion known in European history, and it was collective punishment on a grand scale. There was no attempt to establish any personal guilt, millions of anti-Nazis were expelled on the sole criterion of being German. A purely racist measure backed up by decisions taken by Stalin, Churchill and Roosevelt already at the conferences of Teheran and Yalta, and concretized in the Potsdam Protocol of 2 August 1945.
The British publisher and human rights activist Victor Gollancz described the expulsion as follows: “If the conscience of men ever again becomes sensitive, these expulsions will be remembered to the undying shame of all who committed or connived at them … The Germans were expelled, not just with an absence of over-nice consideration, but with the very maximum of brutality.”[7]
Robert Hutchins, President of the University of Chicago, deplored the crimes being committed in the name of the victorious allies, commenting “The most distressing aspect of present discussions of the future of Germany is the glee with which the most inhuman proposals are brought forward and the evident pleasure with which they are received by our fellow citizens …”[8]
One would have thought that the enormity of the crimes committed against Germans in the years 1945 to 1949, just because they were Germans, would have created a precedent to abolish forever the horror of mass population transfers. Yet, in the 1990s the world witnessed the obscenity of ethnic cleansing in Yugoslavia, which gave the Security Council the opportunity to establish the International Criminal Tribunal for the Former Yugoslavia. Even the judgments of the ICTY did not end our addiction to collective guilt paradigms. Whereas in the 1940s and 1950s the Germans were universally seen as collectively guilty for the Nazis, now at the beginning of the 21st century, many people perceived the Serbians as collectively guilty for Slobodan Milosevic.
Alas, the spirit of collective guilt and collective punishment has not disappeared from the world. We see collective punishment against entire civilian populations in the blockades imposed against people considered unilaterally by some countries as dangerous or hostile. One of the worst expressions of collective hatred is the imposition of unilateral coercive measures ostensibly against governments, but in reality against peoples. Such unilateral coercive measures constitute a new form of warfare, hybrid warfare, non-conventional warfare – which kills as viciously as bullets. The principal practitioners of UCMs are the United States, the United Kingdom and the European Union. Such UCMs have been imposed on countries opposed to the unipolar world demanded by the US. To make matters worse, those countries that impose UCMs dare invoke human rights in order to justify the unjustifiable. It is no less than a sacrilege, a blasphemy, to falsely accuse the victims of committing human rights violations, in order to render the UCMs more palatable by claiming that the measures are intended to bring about a democratic change of government.
Legal Perspectives
In 1975, long before the phenomenon of ethnic cleansing in Yugoslavia, I published an article in the Harvard International Law Journal, outlining the necessity to adopt a convention banning mass expulsions[9].
I explained that from the legal perspective, the concepts of collective guilt and collective punishment are contrary to general principles of law[10], and essentially negate the fundamentals of the administration of justice and the rule of law, which stipulate the principles of human dignity, integrity of the person, and equality of treatment. In particular, collective punishment violates articles 14 and 26 of the International Covenant on Civil and Political Rights, which stipulate the presumption of innocence[11], the requirement of trial and judgment by an independent tribunal and the prohibition of discrimination.
The artificial concept of collective guilt is used to justify collective punishment[12], as, for instance, the destruction of private property or the forced transfer of populations[13]. although collective punishment is specifically prohibited in Article 50 of the 1899 and 1907 Hague Conventions on Land Warfare, which stipulates
“No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”[14]
Article 46 stipulates: “Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.“
Similarly by virtue of Article 33 of the Fourth Geneva Convention of 1949:
“ART. 33. — 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.”[15]
Such war crimes must be investigated and prosecuted pursuant to Article 147 of the Convention.[16]
All of this was highly relevant in the prosecutions before the ICTY of Serbian and Croatian commanders for mass expulsions of Serbians carried out by Croats in the Krajina and mass expulsion of Bosnians and Croatians carried out by Serbs. Unfortunately, there was very little discussion about the fundamental principles of human dignity and the right of all peoples to self-determination.
The mass expulsion of ethnic Germans 1945-49 as a precedent for the mass expulsions of Palestinians from Gaza and Occupied Palestine
The right to one’s homeland is a human right.[17] The right to national self-determination, today recognized as jus cogens (peremptory international law), of necessity must embrace the right to one’s homeland, because self-determination cannot be exercised if one is driven from one’s homeland. Moreover, the right to one’s homeland is a precondition to the exercise of most civil, political, economic, social and cultural rights.[18] The Germans of Bohemia and Moravia (frequently referred to as Sudeten Germans) whose ancestors had resided there for seven centuries, were denied self-determination in 1919, notwithstanding their repeated appeals to the Paris Peace Conference, and notwithstanding the recommendations of the American expert, Harvard Professor Archibald Cary Coolidge, who at Paris proposed attaching the territories in question to Germany and Austria in 1919. Whereas the Treaties of Versailles, St. Germain and Trianon promoted the self-determination of Poles, Czechs and Slovaks, this was done at the expense of denying self-determination to Germans and Magyars. Judged by today’s standards, their claim to self-determination was comparable to that of the Kurds, the Tamils, the Kosovars, the Abkhazians, the Southern Ossetians, the Crimeans, the Sahraouis, the Southern Cameroonians, the Bubis of Bioko/Fernando Po, the Sudanese and many others.
Although the right to national self-determination was not part of peremptory international law in 1945, the expulsion of 14 million ethnic Germans was already illegal by standards of the then-applicable norms of international law, and the treatment of the expelled Germans doubtlessly entailed war crimes and crimes against humanity. The Hague Regulations on Land Warfare appended to Hague Convention IV of 1907 were applicable during World War Two. Articles 42-56 limit the powers of occupying nations and guarantee protections to resident populations, in particular the privacy, honor and rights of the family, as well as private property (Article 46). Collective punishments are forbidden (Article 50). Thus, any mass expulsion implies a major violation of The Hague Regulations. Moreover, pursuant to the Martens Clause[19] which formulated minimal standards of warfare as early as 1899, “cases not included in the Regulations” would necessarily have to be judged in the light of the “laws of humanity”, which means that expulsions of civilians, accompanied by mass killings and complete expropriation of property would undoubtedly be illegal.[20] The Martens Clause was then –as the later Nuremberg War Crimes Tribunals illustrated– a binding principle of international law. Therefore, those responsible for the expulsion of the Germans cannot invoke the absence of specific international law on population transfers in order to justify the expulsion. In his EthicsBaruch Spinoza observed that “nature abhors a vacuum”. International lawyers agree that there cannot be a “legal black hole” when it comes to the over-arching principles of human rights law. Up until December 9, 1948, international law didn’t contain a specific and explicit ban of genocide. Yet nothing could make the Holocaust compatible with international law, even in the absence of a positive norm of black letter law.
The mass expulsion of 14 million Germans cannot be interpreted as a form of legal reprisal, for wartime reprisals can be undertaken only under very narrow and well-defined conditions subject to principles of proportionality that underlie the international legal order. These conditions were not met at the time of the earlier expulsions of ethnic Germans up until May 8, 1945. However, the bulk of the expulsion took place after the end of the war, making the legal concept of reprisal a priori inapplicable to this event. – The expulsions furthermore violated customary international law as well as treaty obligations protecting minority rights assumed by Poland, Czechoslovakia, Hungary and Yugoslavia in 1919. The denial of the right to return of German refugees similarly constituted violations of international law.
The verdict of the International Military Tribunal at Nuremberg rightly condemned the expulsions perpetrated by the Nazis against Poles, mainly from the Posen and Pommerellen (“Westpreußen”) regions and against Frenchmen from the Alsace as war crimes and crimes against humanity. International law has per definitionem universal applicability, and therefore the expulsions of ethnic Germans by Poland, Czechoslovakia, Hungary and Yugoslavia, measured against the same standard, similarly constituted war crimes and crimes against humanity.[21]
Today international law is very explicit in prohibiting expulsions. Article 49 of Geneva Convention IV of August 12, 1949, respecting the protection of civilians in times of war, forbids forced resettlement. Article 17 of the second additional protocol of 1977 expressly prohibits expulsions even in local, sovereign domestic matters. In peacetime, expulsions violate the UN Charter, the Universal Declaration of Human Rights of December 10, 1948, the Human Rights Covenants of 1966 and the International Convention on the Elimination of All Forms of Racial Discrimination. Likewise, they breach the Fourth Protocol of the European Convention for the Protection of Human Rights and Basic Freedoms, Article 3 of which reads: “1) No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national. 2) No one shall be deprived of the right to enter the territory of the state of which he is a national”; and Article 4 which stipulates “collective expulsions of aliens is prohibited.” In war and peace expulsion and deportation represent crimes within the purview of international law. In accordance with Article 8 of the Statute of the International Criminal Court of 1998 expulsions constitute war crimes, and according to Article 7 they constitute crimes against humanity. In some cases they can amount to genocide pursuant to Article 6.
Under some conditions, expulsion and deportation can qualify as genocide. According to Article II of The UN Convention on the Prevention and Punishment of the Crime of Genocide dated December 9, 1948, genocide is defined by acts or actions intended to destroy a certain national, ethnic, racial or religious group in whole or in part, by killing members of these groups or by imposing unendurable living conditions or by committing offenses such as mass expulsions. In the light of the “intent to destroy a national, ethnic, racial or religious group” and the mental and stress accompanying expulsions, they can be categorized as genocide.
This intention to wipe out specific populations was the goal of both Edvard Benes in Czechoslovakia and Josip Broz Tito in Yugoslavia, a fact sufficiently documented in their speeches and decrees. This mental prerequisite qualifies the expulsion of the Germans from these countries as genocide. This opinion is strongly supported by prominent professors of international law including Felix Ermacora and Dieter Blumenwitz.[22] The genocidal character of the expulsions is underscored by the racial targeting of the victims, independent of any personal guilt or responsibility. Indeed, the ethnic Germans were expelled on the basis of their ethnic origin and not because of their personal conduct. As a consequence, there is an obligation for everyone (“erga omes”) not to recognize the consequences of the expulsion. The pseudo-principle of the “normative power of facts” is inapplicable in the case of genocide or after a crime against humanity. Here the general principle of law (ICJ Statute, article 38) ex injuria non oritur jus (out of a violation of law no right can emerge) takes precedence.
The UN General Assembly, in its Resolution 47/121 of December 18, 1992, categorized “ethnic cleansing”, which was then taking place in Yugoslavia, as genocide. This Resolution was confirmed and strengthened by many subsequent resolutions.[23] Even the ICTY categorized certain acts of “ethnic cleansing” in the former Yugoslavia as genocide, namely the massacre at Srebrenica in 1995. In its judgment in the case of Bosnia and Herzegovina vs. Federal Republic of Yugoslavia of February 26, 2007, the International Court of Justice confirmed that the massacre of Srebrenica constituted genocide. On the basis of this judgment it can be asserted that the expulsion of the Germans, accompanied by hundreds of thousands of murders and rapes, necessarily constituted genocide, since the Russian, Polish, Czechoslovak, Hungarian and Yugoslav politicians and military commanders manifested their intent to destroy, “in whole or in part”, the German ethnic group “as such”. Moreover, the manner of implementation of the “population transfer” was considerably more severe and inflicted more casualties than the “ethnic cleansing” perpetrated in the former Yugoslavia. Certainly the killings that accompanied the Brünn Death March, the massacres at Nemmersdorf, Metgethen, Allenstein, Marienburg, Saaz, Postelberg, Aussig, Prerau, Filipova and several thousand other places in addition to the massive number of deaths in the camps at Lamsdorf, Swientochlowice, Theresienstadt, Gakovo, Rudolfsgnad and in several hundred other camps others constituted crimes against humanity and were manifestations of genocidal intent.
Conclusion
As the Israeli war on Gaza progresses, it appears more and more that the intent is to ethnically cleanse the area, to force the 2.4 million population of Gaza to migrate to Egypt or Saudi Arabia. The UN Secretary-General has called for an immediate cease-fire in Gaza. The High Commissioner for Human Rights Volker Türk is in the Middle East trying to mediate.
Collective guilt does not exist. Collective punishment is contrary to every system of law. Let us hope that the Palestinians and Israelis will find a modus vivendi, and that all sides will abandon all thoughts of collective guilt of Palestinians for the crimes committed by Hamas, and the thought of collective guilt of all Israelis for the crimes committed since 1947 against the Palestinian people by successive Israeli governments, and the crimes being committed today by the Netanyahu regime.
What humanity most urgently needs is a change of mindset, a recommitment to the spirituality of the Universal Declaration of Human Rights, a readiness to break the vicious circle of reprisals and counter-reprisals.
In his drama Piccolomini Friedrich Schriller reminds us
Das eben ist der Fluch der böse Tat, dass sie fortzeugend Böses muss gebähren[24].
(That is the curse of evil deeds, that they continue generating evil.)
Notes.
[1] See UN General Assembly Resolution 77/214, UN Human Rights Council Resolution 52/13. See also the report by Professor Jeffrey Sachs and Marc Weisbrot. https://cepr.net/images/stories/reports/venezuela-sanctions-2019-04.pdf
[2] Matthew, chapters 5-7.
Chapter 6, verses 14-15 “For if you forgive other people when they sin against you, your heavenly Father will also forgive you. But if you do not forgive others their sins, your Father will not forgive your sins.” https://www.biblegateway.com/passage/?search=Matthew%206:14-15&version=NIV
John chapter 8 “Neither do I condemn you. Go, and from now on do not sin anymore.”
https://www.biblegateway.com/passage/?search=John%208&version=EHV
Christel Fricke (ed.), The Ethics of Forgiveness: A Collection of Essays, Routledge, 2011.
[3] https://www.timesofisrael.com/20-years-before-the-holocaust-pogroms-killed-100000-jews-then-were-forgotten/ “ From 1918 to 1921, more than 1,100 pogroms killed over 100,000 Jews in an area that is part of present-day Ukraine.” Richard Arnold, Russian Nationalism and Ethnic Violence: Symbolic violence, lynching, pogrom, and massacre, Routledge, London, 2016; Edward Judge, Easter in Kishinev: Anatomy of a Pogrom, New York University Press, 1995; Robert Weinberg, “The Pogrom of 1905 in Odessa: A Case Study”, in Pogroms: Anti-Jewish Violence in Modern Russian History, John D. Klier and Shlomo Lambroza, eds., Cambridge, 1992. I. Michael Aronson, Troubled Waters: The Origins of the 1881 Anti-Jewish Pogroms in Russia, University of Pittsburgh Press, 1990.
[4] Yonathan Glazer-Eytan, Yonatan, “Jews Imagined and Real: Representing and Prosecuting Host Profanation in Late Medieval Aragon”. In Franco Llopis, Borja; Urquízar-Herrera, Antonio (eds.). Jews and Muslims Made Visible in Christian Iberia and Beyond, 14th to 18th Centuries. Leiden, 2019. Albert Winkler, “the Medieval Holocaust: the approach of the Plague and the Destruction of Jews in Germany 1348-1349” Federation of East European Family History Societies, vol. 13 (2005), pp. 6–24.
[5] Gerhard Reichling, Die deutschen Vertriebenen in Zahlen, Bonn, 1986. A. de Zayas, Nemesis at Potsdam, Routledge, 1977, table on page xxv, A Terrible Revenge, Macmillan, 1994, pp. 155-156. . Statistisches Bundesamt, Die deutschen Vertreibungsverluste, Wiesbaden 1958.
[6] A. de Zayas; 50 Theses on the Expulsion of the Germans, Verlag Inspiration, Berlin 2012..
[7] Victor Gollancz, Our Threatened Values, 1946, p. 96,
[8] Time, 21 May 1945, p. 19.
[9] A de Zayas, “International Law and Mass Population Transfers”, in Harvard International Law Journal, vol 16, pp. 207-258. This article was subsequently published in Spanish and German translations.
[10] Statute of the International Court of Justice, article 38. https://www.icj-cij.org/statute
[11] See Article 6 of the 1977 Second Additional Protocol to the Geneva Conventions of 1949: “2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility…”
https://ihl-databases.icrc.org/en/ihl-treaties/apii-1977/article-6?activeTab=undefined
[12] https://guide-humanitarian-law.org/content/article/3/population-displacement/
[13] The study on the rules of customary International Humanitarian Law published by the ICRC in 2005 prescribes that: Rule 129:
(a)Parties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand.
(b)Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.
Rule 130 provides that in connection with an international armed conflict, States may not deport or transfer parts of their own civilian population into a territory they occupy.
Rule 131 prescribes that in case of displacement in the context of an international or a non-international armed conflict, all possible measures must be taken in order that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety, and nutrition and that members of the same family are not separated.
Rule 132 states that in international and non-international armed conflicts, displaced persons have a right to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist.
Rule 133 finally prescribes that the property rights of displaced persons must be respected at all times and all places. Population movements sometimes lead individuals outside their own country. In such cases, they are protected by international refugee law.
[14] https://ihl-databases.icrc.org/en/ihl-treaties/hague-conv-iv-1907/regulations-art-50?activeTab=undefined
[15] https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf
[16] ART. 147. — Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
[17] Otto Kimminich, Das Recht auf die Heimat, 3rd edition, Bonn 1989 and Die Menschenrechte in der Friedensregelung nach dem zweiten Weltkrieg, Berlin 1990. Alfred de Zayas, Heimatrecht ist Menschenrecht, Munich 2001.
[18] On August 6, 2005, the former UN High Commissioner for Human Rights, Dr. Jose Ayala Lasso, said in Berlin: “…the right to one’s homeland is not merely a collective right, but it is also an individual right and a precondition for the exercise of many civil, political, economic, social and cultural rights.” See A. de Zayas, Die Nemesis von Potsdam pp. 404-406.
[19] This particular achievement in international law, later cited in several international conventions as well as judgments by international courts, was conceived by the Russian Diplomat of German-Estonian heritage, an international legal authority, Friedrich Fromhold Martens (1845-1909).
[20] The Martens Clause stipulates: “Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”
[21] In his Memoirs, Konrad Adenauer writes: “Misdeeds have been committed loathsome enough to stand alongside those committed by the German National Socialists.”
[22] Dieter Blumenwitz, Rechtsgutachten über die Verbrechen an den Deustchen in Jugoslawien 1944-1948, Munich 202. Felix Ermacora, Die Sudetendeutsche Fragen. Rechtsgutachten. Munich 1992.
[23] GA Resolutions Nos. 48/143 of December 1993, 49/205 of December 1994, 40/192 of December 1995, 51/115 of March 1997, etc.
[24] Die Piccolomini, V,1 / Octavio Piccolomini
posted by Satish Sharma at
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