6.   Civilians who are Unlawful combatants

A.    The Basic Principle: Civilians Taking a Direct Part in Hostilities are not Protected at Such Time they are Doing So

29. Civilians enjoy comprehensive protection of their lives, liberty, and property. […] As opposed to combatants, whom one can harm due to their status as combatants, civilians are not to be harmed, due to their status as civilians. A provision in this spirit is determined in article 51(2) of The First Protocol, which constitutes customary international law:

“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?

B.    The Source of the Basic Principle and its Customary Character

30. The basic principle is that the civilians taking a direct part in hostilities are not protected from attack upon them at such time as they are doing so. This principle is manifest in §51(3) of The First Protocol, which determines:

“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.

C.    The Essence of the Basic Principle

31. The basic approach is thus as follows: a civilian – that is, a person who does not fall into the category of combatant – must refrain from directly participating in hostilities […]. A civilian who violates that law and commits acts of combat does not lose his status as a civilian, but as long as he is taking a direct part in hostilities he does not enjoy – during that time – the protection granted to a civilian. He is subject to the risks of attack like those to which a combatant is subject, without enjoying the rights of a combatant, e.g. those granted to a prisoner of war. True, his status is that of a civilian, and he does not lose that status while he is directly participating in hostilities. However, he is a civilian performing the function of a combatant. As long as he performs that function, he is subject to the risks which that function entails and ceases to enjoy the protection granted to a civilian from attack […].

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.

32. We have seen that the basic principle is that the civilian population, and single civilians, are protected from the dangers of military activity and are not targets for attack. That protection is granted to civilians “unless and for such time as they take a direct part in hostilities” […]. That provision is composed of three main parts. The first part is the requirement that civilians take part in “hostilities”; the second part is the requirement that civilians take a “direct” part in hostilities; the third part is the provision by which civilians are not protected from attack “for such time” as they take a direct part in hostilities. We shall discuss each of those parts separately.

D.    The First Part: “Taking . . . part in hostilities”

33. Civilians lose the protection of customary international law dealing with hostilities of international character if they “take . . . part in hostilities.” What is the meaning of that provision? The accepted view is that “hostilities” are acts which by nature and objective are intended to cause damage to the army. Thus determines COMMENTARY ON THE ADDITIONAL PROTOCOLS, published by the Red Cross in 1987:

“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 […].

E.    Second Part: “Takes a Direct Part”

34. Civilians lose the protection against military attack, granted to them by customary international law dealing with international armed conflict […], if “they take a direct part in hostilities”. That provision differentiates between civilians taking a direct part in hostilities (from whom the protection from attack is removed) and civilians taking an indirect part in hostilities (who continue to enjoy protection from attack). What is that differentiation? A similar provision appears in Common Article 3 of The Geneva Conventions, which uses the wording “active part in hostilities”. The judgment of the International Criminal Tribunal for Rwanda determined that these two terms are of identical content […]. What is that content? It seems accepted in the international literature that an agreed upon definition of the term “direct” in the context under discussion does not exist […].

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 [4]]

35. Against the background of these considerations, the following cases should also be included in the definition of taking a “direct part” in hostilities: a person who collects intelligence on the army, whether on issues regarding the hostilities […], or beyond those issues […]; a person who transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operation, or provides service to them, be the distance from the battlefield as it may. All those persons are performing the function of combatants. The function determines the directness of the part taken in the hostilities […]. However, a person who sells food or medicine to an unlawful combatant is not taking a direct part, rather an indirect part in the hostilities. The same is the case regarding a person who aids the unlawful combatants by general strategic analysis, and grants them logistical, general support, including monetary aid. The same is the case regarding a person who distributes propaganda supporting those unlawful combatants. If such persons are injured, the State is likely not to be liable for it, if it falls into the framework of collateral or incidental damage. This was discussed by Gasser:

“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 […].

36. What is the law regarding civilians serving as a “human shield” for terrorists taking a direct part in the hostilities? Certainly, if they are doing so because they were forced to do so by terrorists, those innocent civilians are not to be seen as taking a direct part in the hostilities. They themselves are victims of terrorism. However, if they do so of their own free will, out of support for the terrorist organization, they should be seen as persons taking a direct part in the hostilities […].
37. We have seen that a civilian causing harm to the army is taking “a direct part” in hostilities. What says the law about those who enlist him to take a direct part in the hostilities, and those who send him to commit hostilities? Is there a difference between his direct commanders and those responsible for them? Is the “direct” part taken only by the last terrorist in the chain of command, or by the entire chain? In our opinion, the “direct” character of the part taken should not be narrowed merely to the person committing the physical act of attack. Those who have sent him, as well, take “a direct part”. The same goes for the person who decided upon the act, and the person who planned it. It is not to be said about them that they are taking an indirect part in the hostilities. Their contribution is direct (and active) […].

F.    The Third Part: “For Such Time”

38. […] A civilian taking a part in hostilities loses the protection from attack “for such time” as he is taking part in those hostilities. If “such time” has passed – the protection granted to the civilian returns. In respondents’ opinion, that part of article 51(3) of The First Protocol is not of customary character, and the State of Israel is not obligated to act according to it. We cannot accept that approach. As we have seen, all of the parts of article 51(3) of The First Protocol reflect customary international law, including the time requirement. The key question is: how is that provision to be interpreted, and what is its scope?
39. […] With no consensus regarding the interpretation of the wording “for such time”, there is no choice but to proceed from case to case. Again, it is helpful to examine the extreme cases. On the one hand, a civilian taking a direct part in hostilities one single time, or sporadically, who later detaches himself from that activity, is a civilian who, starting from the time he detached himself from that activity, is entitled to protection from attack. He is not to be attacked for the hostilities which he committed in the past. On the other hand, a civilian who has joined a terrorist organization which has become his “home”, and in the framework of his role in that organization he commits a chain of hostilities, with short periods of rest between them, loses his immunity from attack “for such time” as he is committing the chain of acts. Indeed, regarding such a civilian, the rest between hostilities is nothing other than preparation for the next hostility […].
40. These examples point out the dilemma which the “for such time” requirement presents before us. On the one hand, a civilian who took a direct part in hostilities once, or sporadically, but detached himself from them (entirely, or for a long period) is not to be harmed. On the other hand, the “revolving door” phenomenon, by which each terrorist has “horns of the alter” […] to grasp or a “city of refuge” […] to flee to, to which he turns in order to rest and prepare while they grant him immunity from attack, is to be avoided […]. In the wide area between those two possibilities, one finds the “gray” cases, about which customary international law has not yet crystallized. There is thus no escaping examination of each and every case. In that context, the following four things should be said: first, well based information is needed before categorizing a civilian as falling into one of the discussed categories. Innocent civilians are not to be harmed […]. Information which has been most thoroughly verified is needed regarding the identity and activity of the civilian who is allegedly taking part in the hostilities […]. CASSESE rightly stated that –
    
    

    “[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. […]
    
    Arrest, investigation, and trial are not means which can always be used. At times the possibility does not exist whatsoever; at times it involves a risk so great to the lives of the soldiers, that it is not required […]. However, it is a possibility which should always be considered. It might actually be particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place, and in which arrest, investigation, and trial are at times realizable possibilities […]. Of course, given the circumstances of a certain case, that possibility might not exist. At times, its harm to nearby innocent civilians might be greater than that caused by refraining from it. In that state of affairs, it should not be used. Third, after an attack on a civilian suspected of taking an active part, at such time, in hostilities, a thorough investigation regarding the precision of the identification of the target and the circumstances of the attack upon him is to be performed (retroactively). That investigation must be independent […]. In appropriate cases it is appropriate to pay compensation as a result of harm caused to an innocent civilian […]. Last, if the harm is not only to a civilian directly participating in the hostilities, rather also to innocent civilians nearby, the harm to them is collateral damage. That damage must withstand the proportionality test. We shall now proceed to the examination of that question.

A.   Qualification of the conflict and applicable law

1. Paras 16 onwards
   1. How does the High Court of Justice (HCJ) qualify the conflict between the State of Israel and Palestinian armed groups? Do you agree? (GC I-IV, Art. 2) Does the fact that it is occurring, at least partly, in occupied territory suffice to qualify it as an international one?
   2. Does it make a difference that part of the territory where the conflict is taking place is occupied? In such parts of the territory, should the law of belligerent occupation apply instead of the rules on the conduct of hostilities? Should the law applicable vary according to the area where the conflict takes place and to the degree of control of the Israeli forces (see the difference of status between the Gaza Strip and the West Bank)? What would the implications of such a distinction be in terms of the legality of targeted killings?
   3. Do you agree with the HCJ that any conflict which crosses the border of a State automatically becomes an international armed conflict (para. 18)? (GC I-IV, Art. 2)
   4. Would it have been possible for the Court to qualify the conflict as being of a non-international character? What would have been different in the Court’s conclusion if it had done so?
   5. Does international human rights law apply to targeted killings? In occupied territory? In territory which is not occupied by Israel? In your opinion? In the opinion of the Court?
   6. What if both IHL and human rights law apply?

B.   Qualification of the persons

2. Paras 24 onwards
   1. According to the HCJ, what is the status of Palestinians involved in armed groups fighting against the State of Israel? To what protection are they entitled?
   2. Do you agree with President Barak’s conclusion that there is currently no room for a third category of persons? Would the outcome of the decision have been the same if a category of “unlawful combatants” had been recognized?
   3. Do you think it is possible to have an international armed conflict with no combatants on one side? Is it possible for the enemy belligerents captured by one party to be granted prisoner-of-war status, but for that party’s belligerents, when captured by the other party, to be denied it? What is the protection granted to Palestinian fighters captured by the IDF? According to the Court (para. 25)? Conversely, what should be the status of Israeli soldiers captured by Palestinians? Should they have POW status? Would it be realistic to say that they should?

C.   Direct participation in hostilities

3. Paras 29 onwards
   1. Does a civilian who directly participates in hostilities violate IHL?
   2. When may civilians be legitimate targets of attack? Where does the HCJ draw the line between taking part in hostilities and not taking part in hostilities? Is it a clear threshold?
   3. Which examples mentioned by the Court in paras 34-37 as cases of direct participation do you agree with, and which do you disagree with?
   4. (Para. 35) Where does the Court draw the line between taking a direct and an indirect part in hostilities? Is it a clear threshold? In your opinion, is the functional approach (i.e. based on the idea that a civilian becomes a legitimate target as soon as he performs a combatant function) the right criterion to apply in order to qualify a civilian as an unlawful combatant? Is there any possibility for another criterion to be used?
   5. Do you think that someone not carrying any weapon may still be considered as directly participating in hostilities? If so, in which circumstances?
   6. Do you think the person driving a truck carrying ammunition is directly participating in hostilities? In which circumstances (para. 35)?
   7. May any member of an armed group be targeted? Or is it necessary first and foremost to determine his role and status within the group? According to the Court? According to you?
   8. Up to which level of command and responsibility is someone taking direct part in hostilities (para. 37)? Do you agree with the Court’s assertion that armed groups’ leaders who order attacks are legitimate targets, just as much as the persons who actually carry out the attacks? May any leader be targeted, regardless of whether he is a military or a political leader?
   9. What is the conclusion of the HCJ regarding human shields (para. 36)? When may they be legitimate targets? Is it realistic to distinguish between voluntary and involuntary human shields? What is the legal basis for such a distinction? If voluntary human shields are legitimate targets, what is their contribution to hostilities that allows them to be considered as participating in such hostilities? To be a voluntary human shield, is the mere voluntary presence in a place that constitutes a military objective sufficient, or must the person have the intent to shield the objective against an attack? How can such intent be determined in the conduct of hostilities? (PI, Art. 51(7) and (8); CIHL, Rule 97)
   10. (Paras 38-39) When does a civilian directly participating in hostilities cease to do so? Do you agree with the Court’s conclusion that once a person enters a “terrorist” organization, he/she becomes a full-time fighter who may therefore be attacked at any time, even when not engaged in hostilities? If not, when do they stop being legitimate targets? What does such a distinction between occasional fighters and full-time fighters imply in terms of knowledge about the person targeted?
   11. (Paras 38-39) Do you agree with the Court’s assertion that a distinction should be made between the two types of civilians directly participating in hostilities, i.e. between occasional fighters and full-time fighters? What is the consequence for each group in terms of loss of protection? Does this distinction have any basis in IHL? (P I, Arts 50(1) and 51(3)) Is Art. 5 of GC IV relevant for our discussion?

D.  Conduct of hostilities

4. Is the deliberate killing of a protected person ever lawful? If that person is a civilian? If that person is a combatant? If that person was taking direct part in hostilities? Can a person taking direct part in hostilities be simultaneously in the power of the enemy and therefore a protected person? At least in an occupied territory? (GC IV, Arts 4 [6] and 27 [7])
5. Para. 40
   1. What is the four-fold test set by the HCJ in order to determine whether an attack targeting civilians is lawful? Does it have a basis in IHL? When, according to the Court, should this test be applied?
   2. What does the first condition of the test entail? Is it similar to the tests set in Arts 52(2) and 57 of P I? May Art. 52(2) be used to determine whether a person is a legitimate military target?
   3. Under IHL, does the proportionality principle protect combatants? Civilians while directly participating in hostilities? Is there any obligation to use non-lethal means when possible? Is there any obligation to arrest rather than kill a combatant? A civilian directly participating in hostilities? Does the least harmful means requirement, as set by the Court, have any basis in IHL? (HR, Art. 22; P I, Arts 35(1), 51(5)(b))
   4. Under IHL, is there any obligation to subsequently investigate attacks? If combatants are killed? If civilians directly participating in hostilities are killed? If other civilians are killed? Is there such an obligation under international human rights law? Is there an obligation under IHL to pay compensation to persons who have been affected by collateral damage caused by the attack? Under human rights law?
   5. When is an attack proportionate? Which factors should be taken into account? Whose loss is to be weighed against whose military advantage? According to the HCJ? According to you? (P I, Art. 51(5)(b); CIHL, Rule 14)
6. (Para. 42 onwards) Is the Court’s definition of the principle of proportionality the same as that in P I, Art. 51(5)(b)?
7. Does the decision clarify whether any of the targeted killings opposed by the petitioners were unlawful? Does it give clear instructions to the IDF as to when targeted killings will be lawful in the future? As to the persons who may be targeted? As to the other conditions and requirements?