Practice Relating to Rule 6. Civilians’ Loss of Protection from Attack
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. …
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 …
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 [1977 Additional Protocol I], 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? … That position [that it is a principle of customary international law] 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.” The International Criminal Tribunal for the former Yugoslavia determined that article 51 of The First Protocol constitutes customary international law …. In military manuals of many states, including England, France, Holland, Australia, Italy, Canada, Germany, the United States (Air Force), and New Zealand, the provision has been copied verbatim, or by adopting its essence, according to which civilians are not to be attacked, unless they are taking a (direct) part in the hostilities. The legal literature sees that provision as an expression of customary international law …. Respondents’ counsel stated before us that in Israel’s opinion, not all of the provisions of article51(3) of The First Protocol reflect customary international law. 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” (supplement to summary on behalf of the State Attorney (of January 26 2004), p. 79). Therefore, according to the position of the State, the non-customary part of article 1(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 …. Gasser discussed that, stating:
“What are the consequences if civilians do engage in combat? … Such persons do not lose their legal status as civilians … However, for factual reasons they may not be able to claim the protection guaranteed to civilians, since anyone performing hostile acts may also be opposed, but in the case of civilians, only for so long as they take part directly in hostilities”….
The Red Cross Manual similarly states:
“Civilians are not permitted to take direct part in hostilities and are immune from attack. If they take a direct part in hostilities they forfeit this immunity” ….
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” (§51(3) of The First Protocol). 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”….
A similar approach was accepted by the Inter-American Commission on Human Rights, and is positively referred to in HENCKAERTS & DOSWALD-BECK (p. 22). 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 [sic] 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” (p. 618–619).
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 (as adopted in The First Protocol, §51(3)), 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 (see The Prosecutor v. Akayesu, case no. ICTR-96-4-T (1998)). 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 …. HENCKAERTS & DOSWALD-BECK rightly stated that–
“It is fair to conclude … that a clear and uniform definition of direct participation in hostilities has not been developed in state practice” (p. 23).
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 (compare Tadic). 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” (p. 516).
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 (see Watkin, at p. 17). 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. Professor CASSESE writes:
“The rationale behind the prohibition against targeting a civilian who does not take a direct part in hostilities, despite his possible (previous or future) involvement in fighting, is linked to the need to avoid killing innocent civilians” ….
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” ….
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. Article 51(3) of The First Protocol states that civilians enjoy protection from the dangers stemming from military acts, and that they are not targets for attack, unless “and for such time” as they are taking a direct part in hostilities. The provisions of article 51(3) of The First Protocol present a time requirement. 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. As regarding the scope of the wording “takes a direct part” in hostilities, so too regarding the scope of the wording “and for such time” there is no consensus in the international literature. Indeed, both these concepts are close to each other. However, they are not identical. 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” (1 Kings 1:50) to grasp or a “city of refuge” (Numbers 35:11) 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 (see Ergi v. Turkey, 32 EHRR 388 (2001). 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 (see Mohamed Ali v. Public Prosecutor  1 A.C. 430). 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. That question arose in McCann v. United Kingdom, 21 E.H.R.R. 97 (1995), hereinafter McCann. In that case, three terrorists from Northern Ireland who belonged to the IRA were shot to death. They were shot in the streets of Gibraltar, by English agents. The European Court of Human Rights determined that England had illegally impinged upon their right to life (§2 of the European Convention on Human Rights). So wrote the court:
“[T]he use of lethal force would be rendered disproportionate if the authorities failed, whether deliberately or through lack of proper care, to take steps which would have avoided the deprivation of life of the suspects without putting the lives of others at risk” (p. 148, at paragraph 235).
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 (see
§5 of The Fourth Geneva Convention
). 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 (see
CASSESE, at pp. 419, 423, and §3 of The Hague Regulations
; §91 of The First Protocol
). 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.
[footnotes in original to a large extent omitted]
In 2008, in its judgment in the A. v. State of Israel case concerning the legality of national law with regard to unlawful combatants, Israel’s High Court of Justice stated:
[W]e should point out that the question of the conformity of the term “unlawful combatant” to the categories recognized by international law has already been addressed in our case law in Public Committee against Torture in Israel v. Government of Israel
, in which it was held that the term “unlawful combatants” does not constitute a separate category but is a subcategory of “civilians” recognized by international law. This conclusion is based on the approach of customary international law, according to which the category of “civilians” includes everyone who is not a “combatant”. … According to international law, it is permitted to attack an “unlawful combatant” only during the period of time when he is taking a direct part in the hostilities.
The Report on the Practice of Israel states:
Civilians would lose their protection … in those cases in which they are actively involved in hostile activities against Israeli soldiers, civilians or property. The implementation of this rule in practice is not always straightforward, for a variety of reasons, which include the following:
First – many activities, which undoubtedly assist in the carrying out of hostilities, fall in an undefined “grey area” (civilian truck-drivers, [staff of] vehicle repair workshops, etc.).
Second – the military commander in the field is often required to make decisions on the basis of incomplete information, available at the time of the attack. Therefore, while it may be easier to differentiate between protected civilians and others after the event, when more facts are known, it should be understood that any test which requires perfect knowledge of the facts on the ground would fail to meet the test of reality. As an example of the above, in Lebanon many civilians commonly carry firearms. Therefore, the fact that an individual openly carries a firearm does not, in and of itself, automatically relieve him of his protected status. Nevertheless, when returning fire, it is extremely difficult (and probably unwise from a military viewpoint) to differentiate between those individuals actually firing their firearms and those just carrying them.
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:
96. It is important to make clear what this principle [the Principle of Distinction] does not require. First, by definition, the principle of distinction does not forbid the targeting of … civilians who take a direct part in the hostilities.
98. Direct participation in hostilities has been interpreted by Israel’s High Court of Justice as involving all persons that perform the function of combatants, including “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,” as well as “a person who collected 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.
[footnotes in original omitted]
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: “The principle of distinction is a core element of IDF [Israel Defense Forces] standing orders. All IDF soldiers are instructed that strikes are to be directed only against … civilians directly participating in hostilities”.
In 2010, in a position paper submitted to the Public Commission to Examine the Maritime Incident of 31 May 2010 (the Turkel Commission), established by the Israeli Government to examine the Gaza flotilla incident, Israel’s Military Advocate General stated:
[W]hoever does not belong to the armed forces of the opposing side is a “civilian”, and as such is protected from direct and intentional attack (except during the time that he “takes a direct part in hostilities” – when he too constitutes a legitimate objective.
[footnotes in original omitted]
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 presence of enemy combatants among the civilian populations shall not deny the civilian character of the population.”