Practice Related to Rule 95. Forced Labour
Section B. Compelling persons to serve in the forces of a hostile power
Israel’s Manual on the Laws of War (1998) states: “The Conventions expressly forbid harnessing prisoners to the war effort of the detaining state.”
Israel’s Manual on the Rules of Warfare (2006) states:
The imprisoning country is entitled to employ prisoners-of-war in the running and maintenance of the camp, in agriculture, public works (that are not of a military nature) and services for the public benefit that are not of a military nature. The Conventions specifically prohibit the mobilising of prisoners-of-war for the war effort of the country in which they are held.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
In its judgement in the Adalah (Early Warning Procedure) case in 2005, Israel’s High Court of Justice stated:
22. Is the army permitted to make a local resident relay an “early warning” to a wanted person in a place besieged by the army, against his will? All agree that such a thing is prohibited (compare regulation 23(4) of The Hague Regulations; article 51 of The Fourth Geneva Convention; Pictet, at p. 292; Fleck, at p. 252). Indeed, the “Early Warning” procedure explicitly states that the assistance of a local Palestinian resident can be solicited in order to relay an early warning only when that resident has consented to provide such assistance. It is also agreed by all that early warning is not to be relayed by a local resident, if doing so will endanger him.
23. However, what is the law regarding the solicitation of a local resident’s assistance, for the purpose of relaying an “early warning” according to the procedure for doing so, when that resident gives his consent, and damage will not be done to him by relaying the warning? Let it be said immediately: no explicit provision applying to that issue, which would contain a solution to our problem, is to be found (see R. Otto “Neighbors as Human Shields? The Israel Defense Forces ‘Early Warning Procedure’ and International Humanitarian Law” 86 Int’l Rev. Red Cross 771, 776 (2004)). The solution to our question requires a balancing between conflicting considerations. On the one hand, is the value of human life. Use of the “Early Warning” procedure is intended to prevent the need to arrest a wanted person through use of force. In this regard, the procedure is intended to prevent damage to the local residents who are in the same place as the wanted person. Indeed, safeguarding of the lives of the civilian population is a central value in the humanitarian law applicable to belligerent occupation (see article 27 of The Fourth Geneva Convention; HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) PD 385, 39X; Fleck, at p. 212). The legality of the “Early Warning” procedure might draw its validity from the general duty of the occupying army to ensure the dignity and security of the civilian population. It also sits well with the occupying army’s power to protect the lives and security of its soldiers. On the other hand stands the occupying army’s duty to safeguard the life and dignity of the local civilian sent to relay the warning. That is certainly the case when he does not consent to take upon himself the task he has been given, and when its performance is likely to cause him damage. But that is also the case when he gives his consent, and when performance of the role will cause him no damage. That is so not only since he is not permitted to waive his rights pursuant to the humanitarian law (see article 8 of The Fourth Geneva Convention; Pictet, at pp. 72, 74), but also since, de facto, it is difficult to judge when his consent is given freely, and when it is the result of overt or subtle pressure.
24. In balancing between these conflicting considerations, which shall prevail? In my opinion, the considerations in favor of forbidding the army from using a local resident prevail. At the foundation of my view lie a number of principled reasons. First, a basic principle, which passes as a common thread running through all of the law of belligerent occupation, is the prohibition of use of protected residents as a part of the war effort of the occupying army. The civilian population is not to be used for the military needs of the occupying army (see Fleck, at p. 218). They are not to be “volunteered” for cooperation with the army (see regulation 23(b) of The Hague Regulations and article 51 of The Fourth Geneva Convention; see also Pictet, at p. 292). From this general principle is derived the specific prohibition of use of local residents as a “human shield”. Also derived from this principle is the prohibition of use of coercion (physical or moral) of protected persons in order to obtain intelligence (article 31 of The Fourth Geneva Convention; Pictet, at p. 219). It seems to me that prohibiting use of local residents for relaying warnings from the army to those whom the army wishes to arrest should also be derived from this general principle. Second, an additional principle of the humanitarian law is that all is to be done to separate between the civilian population and military activity (see Fleck, at p. 169). The central application of this rule is the duty to distance innocent local residents from the zone of hostilities (see rule 24 of International Humanitarian Law). This rule calls for an approach, according to which a local resident is not to be brought, even with his consent, into a zone in which combat activity is taking place. Third, in light of the inequality between the occupying force and the local resident, it is not to be expected that the local resident will reject the request that he relay a warning to the person whom the army wishes to arrest. A procedure is not to be based upon consent, when in many cases the consent will not be real (see Fleck, at p. 252). The situation in which such consent would be requested should be avoided. Last, one cannot know in advance whether the relaying of a warning involves danger to the local resident who relays it. The ability to properly estimate the existence of danger is difficult in combat conditions, and a procedure should not be based on the need to assume a lack of danger, when such an assumption is at times unfounded. On this issue, one must consider not only the physical danger of damage from gunfire originating in the wanted person’s location, or from various booby-traps, but also the wider danger which a local resident who “collaborates” with the occupying army can expect.
25. These considerations lead me to the conclusion that the “Early Warning” procedure is at odds with international law. It comes too close to the normative “nucleus” of the forbidden, and is found in the relatively grey area (the penumbra) of the improper.
The result is that we turn the order nisi
into an order absolute, in the following way: we declare that the “Early Warning” procedure contradicts international law.
[emphasis in original]
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:
[T]he Israel Supreme Court has ruled that use of civilians in any capacity for the purpose of military operations is unlawful, including the use of civilians to call terrorists hiding in buildings. Adalah – The Legal Center for Arab Minority Rights in Israel et. al. v. GOC Central Command, IDF, et. al
., HCJ 3799/02 (6 October 2005)]. Following this judgment, this latter practice has also been proscribed by IDF [Israel Defense Forces] orders. The IDF is committed to enforcing this prohibition.
In July 2010, in a second update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated that “the standing orders of the Gaza Operation explicitly prohibited the … compulsion of civilians to take part in military operations, in accordance with the Law of Armed Conflict and a Supreme Court ruling on the matter”.
[footnote in original omitted]
The Ministry further stated: “The MAG [Military Advocate General] has directly referred for criminal investigation all allegations that civilians were … compelled to take part in military operations”.
The Ministry also stated:
The investigation revealed that while conducting a search in a building in Tel Al-Hawa, two soldiers compelled a boy to open several bags and suitcases suspected of being rigged with explosives. Based on these findings, the MAG [Military Advocate General] found substantial evidence that these soldiers had failed to comply with IDF [Israel Defense Forces] orders prohibiting the use of civilians for military operations.