Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Section A. The principle of distinction
With reference to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states: “In principle, the IDF (Israel Defense Forces) accepts and applies the principle of distinction.”
Israel’s Manual on the Rules of Warfare (2006) states that “a distinction has to be made between combatants and non-combatants”.
The manual further states: “A separation must be maintained between combatants 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 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: “A core principle of the law of armed conflict is the ‘principle of distinction’ – the obligation to ensure at all times that a distinction is made between combatants and civilians.”
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 the civilian population and combatants … 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, the report further stated that this principle is contained in:
[The 1977] 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: “The principle of distinction imposes obligations on the conduct of all parties, including those controlling the territory where the hostilities take place.”
While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …
… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality.