Practice Relating to Rule 139. Respect for International Humanitarian Law
Israel’s Manual on the Laws of War (1998) states: “The laws of war are binding on every IDF [Israel Defense Force] soldier, also by virtue of their legal validity vis-à-vis
himself as an IDF soldier.”
The manual further states: “It is incumbent on combatants to behave in compliance with the rules and customs of war. This is the most basic of conditions.”
The manual also states: “GHQ regulations and the conduct code obligate IDF soldiers to observe the laws of war which Israel recognizes.”
Israel’s Manual on the Rules of Warfare (2006) states:
The rules of warfare, as their name implies, are a collection of laws and rules that are binding upon a soldier in the battlefield. They are a collection of international conventions and customs that have become entrenched in the course of hundreds of years, and that are considered today by the international community as an aspect of international law that is binding upon every country in the world.
The manual also states: “The rules of warfare are binding upon every soldier in the IDF [Israel Defense Forces].”
The manual further states: “Combatants are required to conduct themselves as required by the rules and customs of war. This is the most basic condition.”
In addition, the manual states: “Both General Headquarters orders and the code of conduct require IDF soldiers to comply with the rules of warfare that have been recognised by Israel.”
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 Physicians for Human Rights v. Commander of the IDF Forces in the West Bank in 2002, Israel’s High Court of Justice stated:
Though we are unable to express a position regarding the specific events mentioned in the petition, which are, on the face of things, severe, we see fit to emphasize that our combat forces are required to abide by the rules of humanitarian law regarding the care of the wounded, the ill and bodies of the deceased. The fact that medical personnel have abused their position in hospitals and in ambulances has made it necessary for the IDF [Israel Defense Forces] to act in order to prevent such activities but does not, in and of itself, justify sweeping breaches of humanitarian rules. Indeed, this is also the position of the state. This stance is required, not only under the rules of international law on which the petitioners have based their arguments here, but also in light of the values of the State of Israel as a Jewish and democratic state.
The IDF shall once again instruct the combat forces, down to the level of the lone soldier in the field, of this commitment by our forces based on law and morality – and, according to the state, even on utilitarian considerations – through concrete instructions which will prevent, to the extent possible, and even in severe situations, incidents which are inconsistent with the rules of humanitarian law.
In its ruling in the Barake case
in 2002 dealing with the question of when, how and by whom the mortal remains of Palestinians who died in a battle in Jenin refugee camp should be identified and buried, Israel’s High Court of Justice stated: “Of course, the rules of the law apply always and immediately … Even during combat one should uphold the laws that govern combat.”
In its judgment in the Almandi case in 2002, Israel’s High Court of Justice stated:
9. Israel finds itself in the middle of difficult battle against a furious wave of terrorism. Israel is exercising its right of self defense … This combat is not taking place in a normative void. It is being carried out according to the rules of international law, which provide principles and rules for combat activity. The saying, “when the cannons roar, the muses are silent,” is incorrect. Cicero’s aphorism that laws are silent during war does not reflect modern reality. I dealt with this idea in HCJ 168/91 Marcus v. The Minister of Defense, at 470–71, noting:
When the cannons roar, the muses are silent. But even under the roar of the cannons, the Military Commander must uphold the law. The strength of society in withstanding its enemies is based on its recognition that it is fighting for values that are worth defending. The rule of law is one of those values.
In HCJ 3114/02 Barake, v. The Minister of Defense, decided only a few days ago, during the height of combat activities in “Operation Defensive Wall,” we stated
Even in a time of combat, the laws of war must be followed. Even in a time of combat, all must be done in order to protect the civilian population.
The foundation of this approach is not only the pragmatic consequence of a political and normative reality. Its roots lie much deeper. It is an expression of the difference between a democratic state fighting for its life and the aggression of terrorists rising up against it. The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law and exploit its violation. The war against terror is also the law’s war against those who rise up against it … Moreover, the State of Israel is founded on Jewish and democratic values. We established a state that upholds the law – it fulfills its national goals, long the vision of its generations, while upholding human rights and ensuring human dignity. Between these – the vision and the law – there lies only harmony, not conflict.
In its judgment in the Ajuri case in 2002, Israel’s High Court of Justice stated:
[T]he State of Israel is fighting a difficult war against terror. It is a war carried out within the law and with the tools that the law makes available. The well-known saying that “In battle laws are silent” (inter arma silent leges – Cicero, pro Milone 11; see also W. Rehnquist, All the Laws but One, 1998, at p. 218) does not reflect the law as it is, nor as it should be. This was well-expressed by Lord Atkin in Liversidge v. Anderson, at p. 361, when he said:
“In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which … we are now fighting, that the judges … stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”
Indeed, “… even when the cannons speak, the military commander must uphold the law. The power of society to stand against its enemies is based on its recognition that it is fighting for values that deserve protection. The rule of law is one of these values” (HCJ 168/91 Morcos v. Minister of Defence, at p. 470). “We have established here a law-abiding State, that realizes its national goals and the vision of generations, and does so while recognizing and realizing human rights in general, and human dignity in particular” (HCJ 3451/02 Almadani v. Minister of Defence , at p. 35). This was well expressed by my colleague, Justice M. Cheshin, when he said:
“We will not falter in our efforts on behalf of the rule of law. We committed ourselves by our oath to dispense justice, to be the servants of the law, and to be faithful to our oath and to ourselves. Even when the trumpets of war sound, the rule of law makes its voice heard” (Sabiah v. IDF Commander in Judaea and Samaria , at p. 369).
Indeed, the position of the State of Israel is a difficult one. Also our role as judges is not easy. We are doing all we can to balance properly between human rights and the security of the area. In this balance, human rights cannot receive complete protection, as if there were no terror, and State security cannot receive complete protection, as if there were no human rights.
In its judgment in Physicians for Human Rights v Commander of IDF Forces in the Gaza Strip in 2004, Israel’s High Court of Justice stated:
7. “Israel is not an isolated island. She is a member of an international system.” HCJ 5592/02 Yassin v. Commander of the Kziot Military Camp. The military operations of the IDF [Israel Defense Forces] are not conducted in a legal vacuum. There are legal norms – of customary international law, of treaties to which Israel is party, and of the fundamental principles of Israeli law – which set out how military operations should be conducted. In HCJ 3451/02 Almandi v. The Minister of Defense, I noted that:
Israel finds itself in the middle of a difficult battle against a furious wave of terrorism. Israel is exercising its right of self defense. See The Charter of the United Nations, art. 51. This combat is not taking place in a normative void. It is being carried out according to the rules of international law, which provide principles and rules for combat activity. The saying, “When the cannons roar, the muses are silent,” is incorrect. Cicero’s aphorism that laws are silent during war does not reflect modern reality. The foundation of this approach is not only the pragmatic consequence of a political and normative reality. Its roots lie much deeper. It is an expression of the difference between a democratic state fighting for its life and the aggression of terrorists rising up against it. The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law and exploit its violation. The war against terror is also the law’s war against those who rise up against it. See HCJ 320/80
Kawasma v. The Minister of Defense, at 132. Moreover, the State of Israel is founded on Jewish and democratic values. We established a state that upholds the law – it fulfills its national goals, long the vision of its generations, while upholding human rights and ensuring human dignity. Between these – the vision and the law – there lies only harmony, not conflict.
Indeed, all of the IDF’s operations are subject to international law. For example, in HCJ 3114/02 Barake v. Minister of Defense
I noted that “[e]ven in a time of combat, the laws of war must be followed. Even in a time of combat, all must be done in order to protect the civilian population.”
In the Adalah v. Minister of Interior case before Israel’s High Court of Justice in 2006, President Barak stated in his dissenting opinion:
Indeed, even if the rights of the foreign spouse have been violated under international human rights law and humanitarian human rights law – and even if the rights of the Israeli spouse to the extent that they are enshrined only in those laws were violated – this violation was made by virtue of the Citizenship and Entry into Israel Law. Express local legislation is capable, from the internal viewpoint of Israeli law, of violating rights given in international law. No matter how much the latter constitutes customary international law, it is unable to overcome Israeli legislation that expressly violates it.
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
The State of Israel is fighting against severe terrorism, which plagues it from the area. The means at Israel’s disposal are limited. The State determined that preventative strikes upon terrorists in the area which cause their deaths are a necessary means from the military standpoint. These strikes at times cause harm and even death to innocent civilians. These preventative strikes, with all the military importance they entail, must be made within the framework of the law. The saying “when the cannons roar, the muses are silent” is well known. A similar idea was expressed by Cicero, who said: “during war, the laws are silent” (silent enim legis inter arma
). Those sayings are regrettable. They reflect neither the existing law nor the desirable law (see
Re. Application Under s.83.28 of the Criminal Code  2 S.C.R. 248, 260). It is when the cannons roar that we especially need the laws (see HCJ 168/91 Murkus v. The Minister of Defense
, 45(1) PD 467, 470, hereinafter Murkus
). Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with. There are no “black holes” (see
JOHAN STEYN, DEMOCRACY THROUGH LAW: SELECTED SPEECHES AND JUDGMENTS 195 (2004)). In this case, the law was determined by customary international law regarding conflicts of an international character. Indeed, the State’s struggle against terrorism is not conducted “outside” of the law. It is conducted “inside” the law, with tools that the law places at the disposal of democratic states.
In 2007, the Government of Israel stated in a diplomatic note:
In responding to the threat posed by Hizbullah’s terrorist attacks, and notwithstanding the fact that Hizbullah made no effort to comply with the principles of humanitarian law, the IDF [Israel Defense Forces] regarded itself as bound to comply with the established principles of the law of armed conflict.
Indeed, IDF orders, doctrine and education make clear that soldiers are obligated to act in accordance with international law and custom, including the Geneva Conventions. For example, the Chief of Staff’s Order No. 33.0133 obligates every IDF soldier to conduct him/herself in accordance with the Geneva Conventions. See also a recent IDF educational publication on the Law of Armed Conflict entitled, “The Law of War on the Battlefield” which also makes clear the obligation of IDF forces to abide by the laws and rules of international law.
In 2010, in a statement before 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 advised:
IDF [Israel Defense Forces] soldiers’ and commanders’ best interest [is] to act according to the law. … It is impossible to find in a meeting of top military officials in the General Staff or in a meeting of senior Israeli Navy officials that someone would be given instructions to violate international law.