Collective Punishment--Posner

Concern has been voiced in some quarters that Israel should not be punishing Lebanon for the acts of Hezbollah, because Lebanon's army has not attacked Israel and it is unclear whether Lebanon has the ability to disarm or otherwise restrain Hezbollah. (There is also, however, doubt whether Lebanon has the will to do so.) In other words, Israel's conduct is being criticized as an exercise of collective punishment (likewise its military measures in Gaza), which involves punishing a collective for the act of an individual member, even if some or all of the other members of the collective bear no responsibility for the act. Israel has responded that since Hezbollah is a part of the Lebanese government, its acts are the Lebanese government's acts. That may be, but is to one side of the issue of the appropriateness of collective punishment. Israel has also defended its actions as targeted exclusively on Hezbollah, with any harms to Lebanese who are not part of Hezbollah's armed wing being inevitable accidents of war. Without taking sides, but assuming for the sake of argument that Israel is engaged, in part anyway, in the deliberate infliction of collective punishment, I want to discuss the economics of collective punishment, which is a conventional legal tool that is efficient in many of its applications. An important modern example is the employer's liability for injuries resulting from acts by its employees within the scope of their duties. The employer may have exercised due care in the selection, training, assigning, monitoring, and disciplining of the employee who caused the accident, but if the employee was at fault and therefore is liable to the victim, the employer is also liable no matter how faultless its behavior. And usually it is the employer that ends up paying the entire judgment in the suit by the victim because the employee is more often that not judgment-proof. The law allows the employer to seek indemnity from the employee for any judgment the employer is required to pay the victim of the employee's tort, because the employee is the primary wrongdoer. But the judgment-proof problem renders the employer's right of indemnity of little or no value in most cases. Another important example of collective punishment in law is the rule that all members of a conspiracy are criminally liable for the crimes committed by any member within the scope of the conspiracy, provided it was forseseeable. So if one member of a drug gang beats up a defaulting customer, the other members are apt to be guilty of assault and battery as well even though they had nothing to do with the beating. A related rule, the felony-murder rule, makes a criminal guilty of first-degree murder if a killing occurs in the course of his crime, even if the killing is by someone else and he did not authorize or even expect it--as in the case where a policeman in the course of trying to thwart the crime accidentally kills a bystander. The theory behind these rules--the theory behind collective punishment in general--is that someone other than the actual perpetrator of a wrongful act may have more information that he could, if motivated, use to prevent the act than the government has. The employer may have been faultless in the particular case, but knowing that it is liable anyway will give it a strong incentive to exert control over its employees to prevent accidents--even by such indirect measures as reducing its work force by substituting robots or other mechanical devices for fallible human workers. Similarly, conspirators have an incentive to police their members to avoid getting themselves into unnecessary trouble; and the perpetrators of a bank robbery, for example, have an incentive to avoid being armed or provoking bank guards or police. Collective punishment can properly be criticized when the cost of punishment to the innocent members of the collective is disproportionate to the benefits. This would be true if the government executed the family members of murderers. Such a measure would create powerful incentives for family members to monitor each other's behavior, and the murder rate would drop. Or would it? The law would deter the formation of families; and it might even induce families to murder members whom they thought likely to commit murders, since the family might be better able to conceal a murder within the family than the family member who was murdered would have been able to conceal his own murders. In addition, even if the family-responsibility law was effective in reducing the murder rate, the rate of killing might rise; for suppose there were 10 percent fewer murders but for every murder that did occur an average of two family members would be executed. The example, while extreme, illustrates the essential point about collective punishment: that it is an extremely costly method of punishment, because several or many people are punished for the wrongful act of one. For example, if the cost of punishment to a person punished is X, then if he is a member of a group of ten, all of whom are punished collectively for his act, the punishment cost is 10X rather than X. So collective punishment is properly regarded as highly exceptional. It is most likely to be optimal if either the collective punishment is very mild or the cost to the punisher of failing to prevent the wrongful act is very great, and in either case if in addition the alternative of individual punishment is inadequate. The first case is illustrated by mild collective punishment of children. It includes things like a parent's punishing both his squabbling children because he cannot figure out which one was at fault, or a teacher's keeping the entire class after school because he cannot determine which child threw a spitball at him. These are easy cases because the innocent member or members of the collectively punished group have the necessary information, and ability to act effectively on it, for preventing the misbehavior; they can do so at much lower cost than the punisher because the punisher cannot readily obtain the information necessary to identify the actual wrongdoer; yet the costs to the group of the punishment are slight. The second case--optimal collective punishment when the cost of failing to prevent the wrongful is great--may be illustrated by Israel's policy of demolishing the houses of the families of suicide bombers. The suicide bomber himself is not deterrable, the harm he does is great, and the punishment method, while severe, is mild relative to the harm that a successful suicide bomber can inflict. Because warfare is inherently indiscriminate, innocent persons whose only connection to the fighting is that they live in the combat zone are unavoidably "punished," but this is not collective punishment as a deliberate policy. For one thing, those persons will usually have no ability to restrain the combatants on their side. As for the conflict in Lebanon, however, a nation is undoubtedly responsible for predatory acts committed against another nation by groups operating openly on the nation's territory. That responsibility is an example of the kind of collective responsibility that warrants collective punishment for its breach, as in the somewhat parallel case of the employer's liability for the torts of its employees when they are committed within the scope of employment. But how do you "punish" a nation? The nation is the collective of its citizens. Punishing the nation means punishing its citizens even if there is nothing they can do or could ever have done to to prevent the actions for which they are being held responsible. Assessment of the reasonableness of the punisher’s course of action would then depend on such factors as the alternatives open to the punisher, the amount of damage inflicted by the group that the collectively punished population failed to prevent, the amount of damage that collective punishment inflicts on that population, and the likelihood that the punishment will succeed in getting the punished nation to take effective steps to prevent similar attacks by the rogue group in the future. The last point is vital because it is extremely difficult for one nation to prevent an attack mounted by a terrorist group from the territory of a nation that has acted as the group's willing or unwilling host. That is why that nation is responsible for restraining the group and why, therefore, it may be a proper candidate for collective punishment. A final point. I said earlier that a law imposing capital punishment on family members who failed to prevent one of their members from committing a murder would discourage family formation. In other words, collective punishment tends to cause defection from the group. This may be in the punisher's interest: if Lebanese flee southern Lebanon so as not to be "collectively punished" for the acts of Hezbollah, Israel will have a freer hand in dealing with Hezbollah there.

Comments

[Grant Gould]

You write: Any harms to Lebanese who are not part of Hezbollah's armed wing [are] inevitable accidents of war.

Surely "inevitable accident" is an oxymoron. An inevitable consequence of a deliberate action can hardly be an accident without stretching that term past the breaking point. Right or wrong, such consequences are intentional, and must be put in the same moral balance as more pleasant intended consequences rather than dismissed as accidents.

[N.E.Hatfield]

Grant, The issue is the "quick and the dead"; always hard to discern on a moral scale. The question is, is it better to be alive and immoral or dead and moral. Such is the great paradox of Ethics. Even the Hedonistic calculus fails when confronted with this issue. ;)

[Anonymous]

Significantly, the Israeli air force dropped leaflets on southern Lebanon, warning the citizens to get out, before it started the bombing. Arguably, then, those who remained either assumed the risk or stayed because they supported Hizbollah. In contrast, Hizbollah intentionally targeted Israeli civilians with its rockets. And, as another example, the U.S. dropped no leaflets before destroying Hiroshima. So it's funny that Israel receives so much moral criticism, when in fact it is conducting a necessary war in the most moral way possible.

[Amy]

This comment is not really about collective punishment, but possibly collective game. Also, when we jump out this game between Israeli and Lebanon, I do see something irrational. But we cannot avoid it, since people in front of TV are not rational all the time.

There is a lot of saying about why Israeli attacked and whether they should do that. Let’s put it aside and see the result of these acts. My understanding is, first, the starting point of this game is not the attack of Israeli, but the kidnapping of Hezbollah. Second, the players of this game will not just be Israeli and Lebanon, but also Saudi Arabi, Iran, Iraq, …and America. I don’t see the reason for Europe to be involved.

So what is the result? When I watch CNN news and saw the refugee of Lebanon, I have the follow feelings, kind of mixed. First, a lot of them are well educated. They can speak English fluently. They might be the most possible people willing to join in a democratic society. Second, I am not sure how did they feel about Israeli, but from now on, it is hard to convince them Israeli is a nice neighbor. The argument of terrorism will be ridiculous for them. Third, they speak out before American media begging for international or America to help them out. The slow response might again make them feel that they need to stand on their own. As a foreigner, that is my feeling. So what will an American feel about this war? I don’t know, but I will assume there will be some doubt on how come? Should America get involved? Is it really right to impose something different on a different culture? Again what will a middle east person feel with all these news? I don’t know either. But, an Arabian might also have different feelings over this war. It is not just about Israeli, but also a strong image reminding something old that there is a different logic of Israeli and possibly western culture. So far, I can see Condi handles this crisis more beautifully than President Bush when I learned that she visited Lebanon yesterday.

I don’t know the calculation of Hezbollah, but possibly there is much more going on there. In one case, they probably knew that Israeli’s response ahead. Their kidnapping happened at a very sensitive time. If they did not expect the response from Israeli, American government still needs to be very very cautious. It is not a war between Israeli and Lebanon, but a war defending the confidence over democracy, or a war between two different cultures.

[Lab_Frog]

Posner dealt with the "moral" issue in his books. It is to bad that Becker and Posner don't use this blog to advertise their books more. What one book by each do they consider the most important for every human to read?
For Posner, I think the top two books are:
Law, Pragmatism, and Democracy (for citizens)
Economic Analysis of Law (for lawyers)

Perhaps a poll.

[Hattie]

I don't quite understand how what is happening in the Middle East relates to things such as employee negligence or family breakdown. I admit to having little knowledge of the social theories under discussion. I'm not trying to be sarcastic or anything like that.
I don't know how to relate to what you say, I guess.

[Tom]

Interesting analysis, but I believe it runs into a couple of limitations common to rational analysis divorced from Ethics.

First of all, it fails to account for power (and therefore responsibility) differences between actors. One reason a corporation is punished for the actions of its employee is that it is perceived (rightly or wrongly) as having control over its agent. In the case of collective punishment of civilian populations, the opposite is true. The most powerful actor is the state, particularly during wartime, and it's citizens, while they may have some influence, are more likely controlled than controlling. In the corporate world, the analogy would be to throw the mailroom clerk into prison for malfeasance in the boardroom.

The more important misperception in my view, however, is the attempt to make acts of collective punishment singular or isolated events with no future repercussions. That's where the comparison to the legal system really breaks down. If IBM's employee is found liable in a sexual harassment suit and the company is made to pay up, the CEO might feel unfairly singled out, but he is unlikely to blow up the courthouse as a result. Not true when it comes to acts of collective punishment in war.

In war, civilians who suffer at the hands of the enemy are likely to regard the action as unjust. As a crime. At the very least, the destruction of their property or loss of loved ones can be viewed as torts. It is rational for them to call on their leaders for redress of their grievences.

The redress often takes the form of collective punishment of the citizens of the offending nation. This then implants in the minds of these innocent citizens a need to have their wrongs addressed and so on. This is precisely how Catholic/Protestant troubles in Northern Ireland have persisted for 900 years. If the power between the two nations is highly imbalanced, the citizens of the weaker nation are forced to wait, but history has shown that populations are remarkably patient in these matters. Group memories are long.

So here's the question, how can it be rational for an organization, in this case a country, to engage in an action which will almost certainly lead to not just retaliation but to a cycle of mutually escalating retaliations whose total final cost is all but unknowable?

I find it irresponsible to even suggest that collective punishment might be an acceptable course of action for any nation.

[Andrew]

A few points: Exclusively punishing the guilty (non-collective punishment) is preferable to collective punishment where the innocent are punished along with the guilty. However, when there is no practical way of doing this (i.e., no easy way for America to end World War II), governments have no choice but to resort to collective punishment (i.e., using the atom bomb on cities filled with innocent civilians). Therefore, in judging a government’s decision regarding the use of collective punishment, the real issue is whether or not it truly was the government’s last resort. In this case, I doubt engaging in such a large scale war so quickly was Israel’s last resort (unlike America’s position at the end of World War II).

It does not seem that Israel gave the innocent Lebanese enough time to evacuate before attacking. It purposely destroyed bridges and other means of transport as a way to prevent the kidnapped soldiers from being taken elsewhere. Unfortunately, this has the collateral effect of impeding innocent civilians’ ability to evacuate. By preventing thousands from escaping to increase the odds of saving a few of its soldiers, Israel assigned an extremely “high economic value” to its soldiers and an extremely low value to the Lebanese people (something they will not be forgetting anytime soon).

[Jake]

A commenter above invited a poll on Judge Posner's top books.

Easy.

The Problems of Jurisprudence (1990).

[N.E.Hatfield]

Andy, Is there even the remote possibility that the transportation networks were disrupted to keep Hezbollah irregulars from fleeing with and among the "innocent Lebanese" population? Not too mention, keeping Syria out of South Lebanon and avoiding a general widening of the conflict? It's really all about a question of military necessity and making the fight as sharp and short as possible. This actually saves civilain casualties in the long run. A bit of a paradox ehh?

[Walker]

I see no evidence that Israel’s intent is to inflict collective punishment on the people of Lebanon – the discussion is theoretical to date. It appears Israel’s intent to is disable Hezbollah’s military capability to defend her people from attack and to deter future attacks.

The difficulty is that Hezbollah operates intentionally among civilians and intentionally uses civilians as human shields. Some of these civilians are innocent and others have degrees of culpability if they provide financial or other support (allow Hezbollah to store rockets in the basement of a civilian home). There is evidence the Lebanese government has some degree of culpability for failing to control an armed militia (Hezbollah) under territorial control that attacks a sovereign state.

There is evidence that Israel is attempting to save Lebanese civilians at great cost to Israeli life. If Israel desired she could severely bomb Lebanon to achieve her objectives and cause great loss of civilian life. On the other hand there is evidence that Hezbollah intentionally targets Israeli civilians.

It seems to me Israel’s military response to Hezbollah’s attack is justified and appropriate and to date is not an example of collective punishment.

The more difficult question is under what circumstances Israel would be justified by intentionally targeting the Lebanese nation for the purpose of collective punishment. I think this depends on the degree of culpability of the Lebanese government and people for providing support to Hezbollah and allowing Hezbollah to arm and operate and attack Israel with impunity. Considering that Hezbollah is a part of the government and the influence of Syria and Iran, this is complicated to measure or judge.

[Francisco]

Dear Becker-Posner interesting blog,

I much more agree with Professor Becker’s analysis.

General comment to both: I do not agree entirely using the example of the employer (and the parents) as collective punishment. Punishing the employer (or the parent) is not the same as punishing the collective. You may argue that at the end the employees suffer the punishment indirectly, but I would say “maybe not” since they can change to another job (generally speaking). But the Lebanese can not change its country so easily. The analogy to the employer example would have been –indeed- killing the president of Lebanon and his ministers, for example. Other examples used are closer to what I understand as collective punishment.

In my opinion Professor’s Postner analysis has –from an analytical point of view- an important pitfall: It does not take into account the other side’s reaction, I miss the strategic component in his analysis. One may argue that punishing the collective can provoke less harm than the benefit obtained by that action. This might work in the short-term, however in the longer-term the hate caused by the injustice (the punishment over the innocent part of the collective) lead to more violence, and more punishment… and we keep turning the violence wheel time after time. From a “mathematical point of view” we should understand if the series converges into a value or –conversely- grows indefinitely. I would bet most of the time it grows indefinitely, and the Israeli-Palestinian-Lebanese conflict proves it. (Note: and in the case the series converge into a single value, that value would probably be much higher that any single component of the series, which is what Postner probably would take as measurement in his analysis)

Getting out of the analytical point of view, there is another comment I would like to make: the “punishment-final balance” argumentation is exactly the same that most terrorists use. When a terrorist justify his or her actions, they usually say that the harm of innocent people caused by the terrorist attack is nothing compared to the benefit of solving the situation that justify its terrorist war, therefore it is worthwhile and one should keep going that way. Getting independence over Northern Ireland is probably worth more than few thousand lives, or not? Solving starvation in poor countries is probably worth more that thousands of lives in NYC, London or Madrid, isn’t it?

I rather believe in positive actions. That´s why most conflicts are solved.

"An eye for an eye, and soon the whole world is blind." Mahatma Gandhi

"War is only a cowardly escape from the problems of peace." - Thomas Mann

[specialme]

Hi there

You could drop a line to my colleague maurice@opendoors-newbusiness.co.uk - he's been in the business for 20 odd years and is happy to dispense free practical advice for these sorts of situations.
For more info check www.opendoors-newbusiness.co.uk

All the best
Antony

[specialme]

Hi there

You could drop a line to my colleague maurice@opendoors-newbusiness.co.uk - he's been in the business for 20 odd years and is happy to dispense free practical advice for these sorts of situations.
For more info check www.opendoors-newbusiness.co.uk

All the best
Antony

[Adam]

Posner/Becker: great posts on this topic. I'd love to hear more about how these thoughts on collective punishment color your views on economic sanctions, the most common form of collective punishment at the international level.

Do sanctions meet thse standards for the acceptability of collective punishment, in your mind(s)?

Thanks!

[Hypocriticist]

Extremely high quality discussion to all.

Tom is on point. Collectively punishing the Lebanese for Hezbollah's actions is only rational (by which I mean possibly effective) if Lebanon is a rigidly authoritarian state which has iron control over all its people, including that extremist faction. Since this is not the case, collective punishment is not appropriate here.

But... that's not even right.

Destroying Lebanese infrastructure and neighborhoods is not collective punishment, its a meta-collective punishment. For example, vicarious liability of the employer for the torts of its employees is mere collective punishment. The employer has a degree of control over its worker. But I think that crippling the infrastructure of the nation is more like punishing the entire sector or industry for the acts of the lone employee of one firm. That's why I think of this- and I'm trying to respect Posner's framework- as meta-collective punishment-because its irresponsibly over-inclusive.

I also see another problem. Any regular old criminal conspirator, or employee, lets call him entity A- is harming another person or institution, entity B, and for doing so, is punished by the state, Entity C (who is also harmed by his actions, I admit). But Hezbollah is harming and being punished by the same entity: Israel. So there isn't really an effective impetus for deterrence which comes from an overarching or governing entity when Israel strikes back- collectively or individually. It is essentially retaliation by the victim, not punishment by the state. And therefore, it escalates the conflict.

[Litfaßsäule]

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[Walker]

You are the hypothetical head of state of Lebanon. Hezbollah, strategically financed by Iran and helped tactically by Syria, challenges your government’s central authority by maintaining a militia and pursues an extreme ideological agenda committed to destroying Israel. You know that Hezbollah is expanding its arsenal with thousands of missiles acquired from Syria and Iran. You know that Hezbollah’s raison d’être is to destroy Israel and maintains an army in the service of Iranian and Syrian interests.

U.N. Security Council resolution 1559 demands that all militias in Lebanon be disarmed. The problem is that Lebanon has a huge Shiite population that hates Israel and supports Hezbollah. Hezbollah is also a political party that has significant support. Thus, allowing Hezbollah to arm and act with impunity has a political benefit with no cost and you lack the will to take on Hezbollah because of high political cost.

Your nightmare scenario is realized when Hezbollah provokes Israel into a full-scale war. Israel has a moral and legal justification to attack Hezbollah even when they hide among civilians. Lebanon is now being punished because of Hezbollah. Now you realize a huge cost. In theory, collective punishment as a result of Hezbollah’s acts should change the cost-benefit analysis of failing to control Hezbollah.

If you are rational, you re-calculate the costs and benefits and desire to assert the state’s central authority by controlling and disarming Hezbollah. If the Lebanese people are rational, they also reconsider the brutal costs of hosting Hezbollah and desire to disable Hezbollah’s military capability. You ask the international community for help in dealing with Hezbollah. Theoretically, collective punishment works.

The question is whether you and the Lebanese people are rational and will reconsider the cost-benefit analysis of failing to control Hezbollah.

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[meysam]

Who told you that israelis + palestinians+ lebanese + syrians + ... are all within the same nation with one collective objective function, that you conclude "collective punishment" would be a proper instrument to overcome the problems of free riding and negative externalities associated with them?

I think you are looking into a wrong window by using this concept of collective punishment from "Law and Economics" which is best appicable for cooperative games when there is a social surplus in cooperation and some kind of risoners
dilemma at the same time.

In my view this is totally a zero-sum game, with no surplus in cooperation. these guys are fighting for land, and there is no excess land if they come to a consensus. wether you like it or not, all arabs, especially palestinians, syrians and lebenese believe that Israel has occupied their land. At heart they dont beleive that israel has any right to survive. The have accepted it because israel has an upper hand in military forces and that force is being given to israel through the helps of the united states, so they hate the united states, and they will take revenge if they can, but they can't. WETHER YOU LIKE IT OR NOT. this is certainly a zero sum game. each peice of land to one side, the other side would feel the injury of loss.

once you were asking here what would Hamas do in palestine after winning the elections. I told you there that those supporting Hamas for the last forty years would not let it to make peace with israel, and that happened. what i didnt know by then was that israel too doesnt want peace as it could get it if it would let palestinians to participate in the planned

elections for the next few weeks. the reason is obvious, non of the sides want two separate nations neighnoring each others. both sides want all the land. this is the same for lebanese and syrians, they also want all the palestine+israel in the hands of palestinians.

This problem should be viewed from the windows of "political economy". I dont know how other people in other regions of the world have come to the current situation that they accept each others right over their lands, but here, these people dont accept each others right. and they hate each other. and one side hates the US as well.

what ever the solution is, it does not certainly include US open supports for one side and US condemntion for other side's supporters. these people have faught each other for centuries and millennia and they are still doing it. US is only buying itself a billion of enemies by continuing it current policy.

[Frank]

I don't agree with meysam that this is a zero-sum game. With regard to land, perhaps, but that is only one factor in this "game."

It is true that most Arabs surrounding exist deny its right to exist. But if they would stop their hatred, there would be greater peace and prosperity (not to mention a Palestinian state)--thus demonstrating this isn't a zero-sum game.

Also, Israel or others giving in to racism or other types of hatred is not merely bad for them, it's bad for everyone, even, arguably, the "victors" if Israel should choose to dissolve.

The US taking the side of democracy and freedom over the side of racism, terror and genocide is a good strategy in the long-run. Arguably even in the short run. Appeasing forces that are inimical to your interest, either hoping they'll leave you alone or even reform, is probably a bad idea. Trying to make them reform, using both the carrot and the stick, is better.

As to making enemies, if the US believes that this is because they oppose the US for either hateful or foolish reasons, then it is better to have such enemies than give in to them.

[Walker]

The evidence shows that Israel is not intentionally targeting innocent civilians for collective punishment (yet the totality of war effect may be collective punishment on the Lebanese nation). Here is a translation of the leaflet the Israeli Air Force dropped all over southern Lebanon:

"To all citizens south of the Litani River Due to the terror activities being carried out against the State of Israel from within your villages and homes, the IDF is forced to respond immediately against these activities, even within your villages. For your safety! We call upon you to evacuate your villages and move north of the Litani River."

State of Israel

Who benefits by loss of civilian life? The answer is Hezbollah, which uses innocent civilians as human shields and attempts to harvest world sympathy as a public relations strategy.

Hezbollah is committing a war crime by operating among and using innocent civilians as human shields. Will the world and the Lebanese people hold Hezbollah accountable?

[Arun Khanna]

Re: Concern has been voiced in some quarters that Israel should not be punishing Lebanon for the acts of Hezbollah, because Lebanon's army has not attacked Israel and it is unclear whether Lebanon has the ability to disarm or otherwise restrain Hezbollah.

Israel should publicly declare a geographical line in Lebanon, beyond Hezbollah’s reach and Israeli air strikes, where civilians can seek refuge.

[Anonymous]

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[Anonymous]

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