Practice Relating to Rule 106. Conditions for Prisoner-of-War Status
Section A. Distinction from the civilian population
Israel’s Manual on the Laws of War (1998) states:
It is prohibited to use civilians for the purpose of masking military movements or hiding among them. From this provision stems the soldiers’ obligation to wear a uniform or identifying symbol to clearly distinguish them from civilians.
Israel’s Manual on the Rules of Warfare (2006) states:
Civilians must not be used to screen the military movements and for the purpose of concealment amongst them. This is also the reason why soldiers are under an obligation to wear uniform or identification insignia so as to make it possible to distinguish clearly between them and civilians.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
In its judgment in the Kassem case
in 1969, an Israeli Military Court held that the defendants sufficiently fulfilled the requirement to distinguish themselves from the civilian population by wearing mottled caps and green clothes, which were not customary attire for the inhabitants of the area in which the accused were captured.
In the Swarka case
before an Israeli Military Court in 1974, the defendants had infiltrated Israeli territory from Egypt and had launched rockets at a civilian settlement. Upon their capture, they argued that they were entitled to prisoner-of-war status according to Article 4(A)(1) of the 1949 Geneva Convention III because they were regular soldiers in the Egyptian army operating under orders from their commander. The Prosecutor contended that they could not benefit from this status since they wore civilian clothes while carrying out their mission. The Court observed that, indeed, neither the Hague Regulations nor the 1949 Geneva Convention III provided that a member of the regular armed forces had to wear a uniform at the time of capture in order to be considered a prisoner of war. It considered, however, that it would be quite illogical to regard the duty to wear a uniform (in the sense of a distinctive sign) as imposed only on the quasi-military units referred to in Article 4(A)(2) of the 1949 Geneva Convention III and not on soldiers of regular armed forces. The Court concluded that the defendants were to be prosecuted as saboteurs.
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
24. … [T]he terrorist organizations from the area, and their members, do not fulfill the conditions for combatants (see GROSS, at p. 75). 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. In one case, I wrote:
“The Lebanese detainees are not to be seen as prisoners of war. It is sufficient, in order to reach that conclusion, that they do not fulfill the provisions of article 4a(2)(d) of The Third Geneva Convention, which provides that one of the conditions which must be fulfilled in order to fit the definition of ‘a prisoner of war’ is ‘that of conducting their operations in accordance with the laws and customs of war.’ The organizations to which the Lebanese detainees belonged are terrorist organizations acting contrary to the laws and customs of war. Thus, for example, these organizations intentionally harm civilians, and shoot from within the civilian population, which serves them as a shield. Each of these is an act contrary to international law. Indeed, Israel’s constant stance throughout the years has been to view the various organizations, like the Hizbollah, as organizations to which The Third Geneva Convention does not apply. We found no cause to intervene in that stance” (HCJ 2967/00 Arad v. The Knesset, 54 PD(2) 188, 191; see also Severe CrimC 1158/02 (TA) The State of Israel v. Barguti (unpublished, paragraph 35 of the verdict); Tav Mem/69/4 The Military Prosecutor v. Kassem, 1 SELECTED JUDGMENTS OF THE MILITARY TRIBUNALS IN THE ADMINISTERED TERRITORIES 403 [PISKEI DIN NIVCHARIM SHEL BATEI HADIN HATSVAYIM BASHTACHIM HAMUCHZAKIM]).
25. The terrorists and their organizations, with which the State of Israel has an armed conflict of international character, do not fall into the category of combatants. They do not belong to the armed forces, and they do not belong to units to which international law grants status similar to that of combatants. Indeed, the terrorists and the organizations which send them to carry out attacks are unlawful combatants. They do not enjoy the status of prisoners of war. They can be tried for their participation in hostilities, judged, and punished. The Chief Justice of the Supreme Court of the United States, Stone C.J. discussed that, writing:
“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful population of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatant[s] are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful” (Ex Parte Quirin 317 U.S. 1, 30 (1942); see also Hamdi v. Rumsfeld, 542 U.S. 507 (2004)).
The Imprisonment of Unlawful Combatants Law, 5762-2002 authorizes the chief of the general staff of the IDF [Israel Defense Forces] to issue an order for the administrative detention of an “unlawful combatant”. That term is defined in the statute as “a person who took part in hostilities against the State of Israel, whether directly or indirectly, or is part of a force which commits hostilities against the state of Israel, who does not fulfill the conditions granting prisoner of war status in international humanitarian law, as determined in article 4 of III Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949.” Needless to say, unlawful combatants are not beyond the law. They are not “outlaws”. God created them as well in his image; their human dignity as well is to be honored; they as well enjoy and are entitled to protection, even if most minimal, by customary international law (Neuman, Humanitarian Law and Counterterrorist Force
, 14 EUROPEAN JOURNAL OF INTERNATIONAL LAW 283 (2003); Georg Nolte, Preventative Use of Force and Preventative Killings: Moves into a Different Legal Order
, 5 THEORETICAL INQUIRIES IN LAW 111, 119 (2004), hereinafter “Nolte”). That is certainly the case when they are in detention or brought to justice (see
§75 of The First Protocol
, which reflects customary international law, as well as Knut Dormann, The Legal Situation of “Unlawful/Unprivileged” Combatants
, 849 INTERNATIONAL REVIEW OF THE RED CROSS 45, 70 (2003), hereinafter “Dormann”). Does it follow that in Israel’s conduct of combat against the terrorist organizations, Israel is not entitled to harm them, and Israel is not entitled to kill them even if they are planning, launching, or committing terrorist attacks? If they were seen as (legal) combatants, the answer would of course be that Israel is entitled to harm them. Just as it is permissible to harm a soldier of an enemy country, so can terrorists be harmed. Accordingly, they would also enjoy the status of prisoners of war, and the rest of the protections granted to legal combatants. However, as we have seen, the terrorists acting against Israel are not combatants according to the definition of that term in international law; they are not entitled to the status of prisoners of war; they can be put on trial for their membership in terrorist organizations and for their operations against the army.