Practice Relating to Rule 7. The Principle of Distinction between Civilian Objects and Military Objectives
Section A. The principle of distinction
Israel’s Law of War Booklet (1986) requires that a distinction be made between military objectives and civilian objects.
Israel’s Manual on the Laws of War (1998) provides:
The attacking party is bound by duty to distinguish between military objectives and civilian objects, and must take into account the presence of civilian objects when planning an attack.
The laws of war sets down several distinctions mentioned earlier. The most important of them is the distinction between military targets and civilian objects.
Israel’s Manual on the Rules of Warfare (2006) states: “One of the fundamental features of the rules of war is the distinction between military targets which it is permissible to attack and civilian targets which it is forbidden to attack.”
The manual further states:
It is the duty of the attacker to distinguish between military targets and civilian targets, and the attacker should take into account the presence of civilian targets when planning the attack. No area in which military targets are combined with civilian targets may be considered as merely another target.
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 Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
Opposite the combatants and military objectives stand the civilians and civilian objectives. Military attack directed at them is forbidden. Their lives and bodies are protected from the dangers of combat, provided that they themselves do not take a direct part in the combat. That customary principle is worded as follows:
“Rule 1: The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.
Rule 6: Civilians are protected against attack unless and for such time as they take a direct part in hostilities.
Rule 7: The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.” (J.M. HENCKAERTS & L. DOSWALD-BECK, CUSTOMARY INTERNATIONAL LAW pp. 3, 19, 25 (Vol. 1, 2005), hereinafter HENCKAERTS & DOSWALD-BECK).
This approach – which protects the lives, bodies, and property of civilians who are not taking a direct part in the armed conflict – passes like a thread throughout the caselaw of the Supreme Court.
In its judgment in Physicians for Human Rights v. Prime Minister of Israel
in 2009, concerning the humanitarian situation in the Gaza Strip consequent to the start of Israeli military operations (“Cast Lead”) there in December 2008, Israel’s High Court of Justice stated: “One of the fundamental principles of international humanitarian law is the principle that distinguishes combatants and military targets from civilians and civilian targets, and grants protection to the latter.”
In 2008, in a background paper on Israel’s operations in Gaza, Israel’s Ministry of Foreign Affairs stated: “As regards the selection of targets, IDF [Israel Defence Forces] practice requires that a distinction be made between military objectives and civilian objects.”
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
The first core principle of the Law of Armed Conflict, as reflected both in treaty law and in customary international law, is that “the Parties to the conflict shall at all times distinguish between … civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” The principle imposes obligations on both parties to an armed conflict.
In a footnote to paragraph 94, above, it further stated that this principle is contained in:
 Additional Protocol I, art. 48. Although the State of Israel is not a party to the Additional Protocols to the Geneva Conventions, it accepts that this provision, as with certain others addressing the principles of distinction and proportionality, accurately reflects customary international law. See Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 at § 20 (11 December 2005).
The report also stated:
[A] commander’s intent
is critical in reviewing the principle of distinction during armed conflict. Where it is believed in good faith, on the basis of the best available intelligence, that a civilian building has been misused as a sanctuary for military fighters, military intelligence, or the storage and manufacture of military assets, the commander has a legitimate basis for using force against the site. This is so even where judgment is based on limited information in a fluid battlefield situation.
[emphasis in original]
The report further stated: “The principle of distinction imposes obligations on the conduct of all parties, including those controlling the territory where the hostilities take place.”