Collective punishment and human rights : from Israel to Russia

Abstract

This thesis analyses collective punishment in the context of human rights law from a New Legal Realist perspective. Collective punishment is a concept deriving from the law of armed conflict. It describes the punishment of a group for an act allegedly committed by some of its members and is prohibited in times of armed conflict by treaty and customary international law. Recently, the imposition of collective punishment has been witnessed in situations outside armed conflict. This means that the applicable legal framework is human rights law and not the law of armed conflict. Human rights instruments do not explicitly address collective punishment. Consequently, there is a genuine gap in the protection of groups affected by collective punishment in situations outside of or short of armed conflict. Supported by two case studies on collective punishment in the Occupied Palestinian Territories and in Chechnya, the thesis examines potential options to close this gap in human rights law in a way contributing to the empowerment of affected groups. This analysis will focus on the European Convention on Human Rights due to its relevance to the situation in Chechnya. The protection and empowerment of groups necessitates a reconsideration of group rights under the human rights framework and challenges the traditionally individual focus of human rights law. By questioning whether human rights instruments can encompass such rights and adapt to the changing circumstances, the thesis contributes to the broader academic debate on rights held by collectivities in general and on collective human rights in particular. The thesis is therefore centred on the following research question: What is the relationship between the legal regulation and state policies on collective punishment under the law of armed conflict and human rights law and what effects does this relationship have on the protection and empowerment of affected groups?