N.B. As per the disclaimer [1], neither the ICRC nor the authors can be identified with the opinions expressed in the Cases and Documents. Some cases even come to solutions that clearly violate IHL. They are nevertheless worthy of discussion, if only to raise a challenge to display more humanity in armed conflicts. Similarly, in some of the texts used in the case studies, the facts may not always be proven; nevertheless, they have been selected because they highlight interesting IHL issues and are thus published for didactic purposes.
[Source: Supreme Court of Israel, Public Committee against Torture in Israel v. Government of Israel, Case No. HCJ 769/02, 13 December 2006, available at http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf [2], footnotes omitted]
HCJ 769/02
1. The Public Committee against Torture in Israel
2. Palestinian Society for the Protection of Human Rights and the Environment
v.
1. The Government of Israel [et al.]
The Supreme Court Sitting as the High Court of Justice
[…]
JUDGMENT
President (Emeritus) A. Barak:
The Government of Israel employs a policy of preventative strikes which cause the death of terrorists in Judea, Samaria, or the Gaza Strip. It fatally strikes these terrorists, who plan, launch, or commit terrorist attacks in Israel and in the area of Judea, Samaria, and the Gaza Strip, against both civilians and soldiers. These strikes at times also harm innocent civilians. Does the State thus act illegally? That is the question posed before us.
[…]
[…]
[…]
What is the normative system that applies in the case of an armed conflict between Israel and the terrorist organizations acting in the area?[…]
The result of that balancing is that human rights are protected by the law of armed conflict, but not to their full scope. The same is so regarding the military needs. They are given an opportunity to be fulfilled, but not to their full scope. This balancing reflects the relativity of human rights, and the limits of military needs. The balancing point is not constant. “In certain issues the accent is upon the military need, and in others the accent is upon the needs of the civilian population” […]. What are the factors affecting the balancing point?[…]
Are terrorist organizations and their members combatants, in regards to their rights in the armed conflict? Are they civilians taking an active part in the armed conflict? Are they possibly neither combatants nor civilians? What, then, is the status of those terrorists?. . .”
Article 13 of The First and Second Geneva Conventions and article 4 of The Third Geneva Conventions repeat that wording (compare also article 43 of The First Protocol). […] [T]he terrorist organizations from the area, and their members, do not fulfill the conditions for combatants […]. It will suffice to say that they have no fixed emblem recognizable at a distance, and they do not conduct their operations in accordance with the laws and customs of war. […]“states must never make civilians the object of attack” […].
That customary principle is expressed in article 51(2) of The First Protocol, according to which:
“The civilian population as such, as well as individual civilians, shall not be the object of attack”.
From that follows also the duty to do everything possible to minimize collateral damage to the civilian population during the attacks on “combatants” […]. Against the background of that protection granted to “civilians”, the question what constitutes a “civilian” for the purposes of that law arises. The approach of customary international law is that “civilians” are those who are not “combatants” […].
That definition is “negative” in nature. It defines the concept of “civilian” as the opposite of “combatant”. It thus views unlawful combatants – who, as we have seen, are not “combatants” – as civilians. Does that mean that the unlawful combatants are entitled to the same protection to which civilians who are not unlawful combatants are entitled? The answer is, no. Customary international law regarding armed conflicts determines that a civilian taking a direct part in the hostilities does not, at such time, enjoy the protection granted to a civilian who is not taking a direct part in the hostilities (see §51(3) of The First Protocol). The result is that an unlawful combatant is not a combatant, rather a “civilian”. However, he is a civilian who is not protected from attack as long as he is taking a direct part in the hostilities. Indeed, a person’s status as unlawful combatant is not merely an issue of the internal state penal law. It is an issue for international law dealing with armed conflicts […]. It is manifest in the fact that civilians who are unlawful combatants are legitimate targets for attack, and thus surely do not enjoy the rights of civilians who are not unlawful combatants, provided that they are taking a direct part in the hostilities at such time. Nor, as we have seen, do they enjoy the rights granted to combatants. Thus, for example, the law of prisoners of war does not apply to them.
“The civilian population as such, as well as individual civilians, shall not be the object of attack. . .”
[…] That protection is granted to all civilians, excepting those civilians taking a direct part in hostilities. Indeed, the protection from attack is not granted to unlawful combatants who are taking a direct part in the hostilities. […]
What is the source and the scope of that basic principle, according to which the protection of international humanitarian law is removed from those who take an active part in hostilities at such time that they are doing so?
“Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.”
As is well known, Israel is not party to The First Protocol. Thus, it clearly was not enacted in domestic Israeli legislation. Does the basic principle express customary international law? The position of The Red Cross is that it is a principle of customary international law […]. That position is acceptable to us. It fits the provision Common Article 3 of The Geneva Conventions, to which Israel is party and which, according to all, reflects customary international law, pursuant to which protection is granted to persons “[T]aking no active part in the hostilities.” […] According to the State’s position, “all that is determined in customary international law is that it is forbidden to harm civilians in general, and it expressly determines that it is permissible to harm a civilian who ‘takes a direct part in hostilities.’ Regarding the period of time during which such harm is permitted, there is no restriction” […]. Therefore, according to the position of the State, the non-customary part of article 51(3) of The First Protocol is the part which determines that civilians do not enjoy protection from attack “for such time” as they are taking a direct part in hostilities. As mentioned, our position is that all of the parts of article 51(3) of The First Protocol express customary international law. What is the scope of that provision? It is to that question that we now turn.
That is the law regarding unlawful combatants. As long as he preserves his status as a civilian – that is, as long as he does not become part of the army – but takes part in combat, he ceases to enjoy the protection granted to the civilian, and is subject to the risks of attack just like a combatant, without enjoying the rights of a combatant as a prisoner of war. Indeed, terrorists who take part in hostilities are not entitled to the protection granted to civilians. True, terrorists participating in hostilities do not cease to be civilians, but by their acts they deny themselves the aspect of their civilian status which grants them protection from military attack. Nor do they enjoy the rights of combatants, e.g. the status of prisoners of war.
“Hostile acts should be understood to be acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces” […].
[…] It seems that acts which by nature and objective are intended to cause damage to civilians should be added to that definition. According to the accepted definition, a civilian is taking part in hostilities when using weapons in an armed conflict, while gathering intelligence, or while preparing himself for the hostilities. Regarding taking part in hostilities, there is no condition that the civilian use his weapon, nor is their a condition that he bear arms (openly or concealed). It is possible to take part in hostilities without using weapons at all. COMMENTARY ON THE ADDITIONAL PROTOCOLS discussed that issue:
“It seems that the word ‘hostilities’ covers not only the time that the civilian actually makes use of a weapon, but also, for example, the time that he is carrying it, as well as situations in which he undertakes hostile acts without using a weapon” […].
As we have seen, that approach is not limited merely to the issue of “hostilities” toward the army or the state. It applies also to hostilities against the civilian population of the state […].
In that state of affairs, and without a comprehensive and agreed upon customary standard, there is no escaping going case by case, while narrowing the area of disagreement […]. On this issue, the following passage from COMMENTARY ON THE ADDITIONAL PROTOCOLS is worth quoting:
“Undoubtedly there is room here for some margin of judgment: to restrict this concept to combat and active military operations would be too narrow, while extending it to the entire war effort would be too broad, as in modern warfare the whole population participates in the war effort to some extent, albeit indirectly” […].
Indeed, a civilian bearing arms (openly or concealed) who is on his way to the place where he will use them against the army, at such place, or on his way back from it, is a civilian taking “an active part” in the hostilities […]. However, a civilian who generally supports the hostilities against the army is not taking a direct part in the hostilities […]. Similarly, a civilian who sells food or medicine to unlawful combatants is also taking an indirect part in the hostilities. The third report of the Inter-American Commission on Human Rights states:
“Civilians whose activities merely support the adverse party’s war or military effort or otherwise only indirectly participate in hostilities cannot on these grounds alone be considered combatants. This is because indirect participation, such as selling goods to one or more of the armed parties, expressing sympathy for the cause of one of the parties or, even more clearly, failing to act to prevent an incursion by one of the armed parties, does not involve acts of violence which pose an immediate threat of actual harm to the adverse party” […].
And what is the law in the space between these two extremes? On the one hand, the desire to protect innocent civilians leads, in the hard cases, to a narrow interpretation of the term “direct” part in hostilities. […]
On the other hand, it can be said that the desire to protect combatants and the desire to protect innocent civilians leads, in the hard cases, to a wide interpretation of the “direct” character of the hostilities, as thus civilians are encouraged to stay away from the hostilities to the extent possible. Schmitt writes:
“Gray areas should be interpreted liberally, i.e., in favor of finding direct participation. One of the seminal purposes of the law is to make possible a clear distinction between civilians and combatants. Suggesting that civilians retain their immunity even when they are intricately involved in a conflict is to engender disrespect for the law by combatants endangered by their activities. Moreover, a liberal approach creates an incentive for civilians to remain as distant from the conflict as possible – in doing so they can better avoid being charged with participation in the conflict and are less liable to being directly targeted” […]. [See ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities [5]]
“Civilians who directly carry out a hostile act against the adversary may be resisted by force. A civilian who kills or takes prisoners, destroys military equipment, or gathers information in the area of operations may be made the object of attack. The same applies to civilians who operate a weapons system, supervise such operation, or service such equipment. The transmission of information concerning targets directly intended for the use of a weapon is also considered as taking part in hostilities. Furthermore, the logistics of military operations are among the activities prohibited to civilians . . . [N]ot only direct and personal involvement but also preparation for a military operation and intention to take part therein may suspend the immunity of a civilian. All these activities, however, must be proved to be directly related to hostilities or, in other words to represent a direct threat to the enemy . . . However, the term should not be understood too broadly. Not every activity carried out within a state at war is a hostile act. Employment in the armaments industry for example, does not mean, that civilian workers are necessarily participating in hostilities… Since, on the other hand, factories of this industry usually constitute lawful military objectives that may be attacked, the normal rules governing the assessment of possible collateral damage to civilians must be observed” […].
In the international literature there is a debate surrounding the following case: a person driving a truck carrying ammunition […]. Some are of the opinion that such a person is taking a direct part in the hostilities (and thus he can be attacked), and some are of the opinion that he is not taking a direct part (and thus he cannot be attacked). Both opinions are in agreement that the ammunition in the truck can be attacked. The disagreement regards the attack upon the civilian driver. Those who think that he is taking a direct part in the hostilities are of the opinion that he can be attacked. Those who think that he is not taking a direct part in the hostilities believe that he cannot be attacked, but that if he is wounded, that is collateral damage caused to civilians proximate to the attackable military objective. In our opinion, if the civilian is driving the ammunition to the place from which it will be used for the purposes of hostilities, he should be seen as taking a direct part in the hostilities […].
“[I]f a belligerent were allowed to fire at enemy civilians simply suspected of somehow planning or conspiring to plan military attacks, or of having planned or directed hostile actions, the basic foundations of international humanitarian law would be seriously undermined. The basic distinction between civilians and combatants would be called into question and the whole body of law relating to armed conflict would eventually be eroded” […].
The burden of proof on the attacking army is heavy […]. In the case of doubt, careful verification is needed before an attack is made. HENCKAERTS & DOSWALD-BECK made this point:“[W]hen there is a situation of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious” […].
Second, a civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. In our domestic law, that rule is called for by the principle of proportionality. Indeed, among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed […]. Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force. […][…]
Proper Proportion between Benefit and Damage
When the damage to innocent civilians is not proportionate to the benefit of the attacking army, the attack is disproportionate and forbidden.
[…]
[…]
[…]
The issue of the correct, proper classification of terrorist organizations and their members raises difficult questions. Customary international humanitarian law obligates the parties to the conflict to differentiate between civilians and combatants and between military objectives and civilian objectives, and to refrain from causing extensive damage to enemy civilians. The question is whether reality hasn’t created, de facto, an additional group, with a special legal status. Indeed, the scope of danger posed to the State of Israel and the security of her civilians by the terrorist organizations, and the fact that the means usually employed against lawbreaking citizens are not suitable to meet the threats posed by terrorist activity, make one uneasy when attempting to fit the traditional category of “civilians” to those taking an active part in acts of terrorism. They are not “combatants” as per the definition in international law. The way in which “combatants” were defined in the relevant conventions actually stemmed from the desire to deny “unlawful combatants” certain protections granted to legal combatants (especially protections regarding the issues of prisoner of war status and criminal prosecution). The latter are “unprivileged belligerents” […]. However, the very characteristics of the terrorist organizations and their members that exclude them from the category of “combatants” – lack of fixed distinctive emblems recognizable at a distance and noncompliance with the laws and customs of war – create difficulty. Awarding a preferential status, even if only on certain issues, to those who choose to become “unlawful combatants” and do not act according to the rules of international law and the rules of morality and humanitarianism might be undesirable.
The classification of members of terrorist organizations under the category of “civilians” is not, therefore, an obvious one. DINSTEIN wrote, on this point, that:
“…a person is not allowed to wear simultaneously two caps: the hat of civilian and the helmet of a soldier. A person who engages in military raids by night, while purporting to be an innocent civilian by day, is neither a civilian nor a lawful combatant. He is an unlawful combatant in the sense that he can be lawfully targeted by the enemy, but he cannot claim the privileges appertaining to lawful combatancy. Nor does he enjoy the benefits of civilian status: Article 5 (first Paragraph) of the 1949 Geneva Convention (IV) […] specifically permits derogation from the rights of such a person (the derogation being less extensive in occupied territories, pursuant to the second Paragraph of Article 5)” […].
Elsewhere it was written that “if it is not proper to see terrorists as combatants, and as a result to grant them the protections to which combatants are entitled, they should even less be seen as civilians who are not combatants, and thus granted many more rights” […]. Those of the opinion that the third category of unlawful combatants exists emphasize that its members include those who wish to blur the boundaries between civilians and combatants […]. The difficulty intensifies when we take into account that those who differentiate themselves from legal combatants on the one hand, and from innocent civilians on the other, are not homogenous. They include groups which are not necessarily identical to each other in terms of the willingness to abide by fundamental legal and human norms. It is especially appropriate, in this context, to differentiate between unlawful combatants fighting against an army and those who purposely act against civilians.
It thus appears that international law must adapt itself to the era in which we are living. In light of the data presented before us, President Barak proposes to perform the adaptation within the framework of the existing law, which recognizes, in his opinion, two categories – combatants and civilians. […]. As stated, other approaches are possible. I do not find a need to expand on them, since in light of the rules of interpretation proposed by President Barak, the theoretical distinction loses its sting.
The interpretation proposed by my colleague President Barak in fact creates a new group, and rightly so. It can be derived from the combatant group (“unlawful combatants”) and it can be derived from the civilian group. My colleague President Barak takes the second path. If we go his way, we should derive a group of international-law-breaking civilians, whom I would call “uncivilized civilians”. In any case, there is no difference between the two paths in terms of the result, since the interpretation of the provisions of international law proposed by my colleague President Barak adapts the rules to the new reality. That interpretation is acceptable to me. It is a dynamic interpretation which overcomes the limitations of a black letter reading of the laws of war.
However, even under the difficult conditions of combating terrorism, the differentiation between unlawful combatants and civilians must be ensured. That, regarding the issue at hand, is the meaning of the “targeting” in “targeted killing”. That is the meaning of the proportionality requirement with which my colleague President Barak deals with extensively.
[…]
I concur in the judgment of President (emeritus) Barak […].
[…]
Thus it is decided that it cannot be determined in advance that every targeted killing is prohibited according to customary international law, just as it cannot be determined in advance that every targeted killing is permissible according to customary international law. The law of targeted killing is determined in the customary international law, and the legality of each individual such act must be determined in light of it.
Given today, 23 Kislev 5767 (13 December 2006)
Links
[1] https://casebook.icrc.org/disclaimer-and-copyright
[2] http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf
[3] https://casebook.icrc.org/case-study/icrc-customary-international-humanitarian-law
[4] https://casebook.icrc.org/case-study/israel-detention-unlawful-combatants
[5] https://casebook.icrc.org/case-study/icrc-interpretive-guidance-notion-direct-participation-hostilities
[6] https://casebook.icrc.org/case-study/icjisrael-separation-wallsecurity-fence-occupied-palestinian-territory#para36
[7] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/365-570005?OpenDocument
[8] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/470-750064?OpenDocument
[9] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule97
[10] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/380-600008?OpenDocument
[11] https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=78EB50EAD6EE7AA1C12563CD0051B9D4
[12] https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=FFCB180D4E99CB26C12563CD0051BBD9
[13] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/195-200032?OpenDocument
[14] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/470-750044?OpenDocument
[15] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule14