Practice Relating to Rule 89. Violence to Life
Israel’s Manual on the Laws of War (1998) states: “It is strictly forbidden to cause (by act or omission) the death of a prisoner of war after he has surrendered or to put him in a situation that endangers his health and physical integrity.”
Israel’s Manual on the Rules of Warfare (2006) states:
[K]illing prisoners-of-war after they have surrendered will not necessarily weaken the enemy’s army, it will merely cause unnecessary suffering, and such actions are morally tainted on humanitarian grounds.
Many of the customs that are accepted today, such as raising the hands to indicate surrender, allowing prisoners-of-war to remain alive … and so on, originate in the Middle Ages.
Attacking a combatant who has surrendered is murder and the same also applies to attacking a combatant who has been wounded and has ceased to pose a threat to our forces.
It is strictly forbidden to cause the death (deliberately or by neglect) of a prisoner-of-war after he has surrendered and to put him in a situation in which his health or physical being are threatened.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950) includes in its definition of war crimes the following acts: “murder of [the] civilian population of or in occupied territories; murder of … prisoners of war and persons on the seas”.
The law also punishes persons who have committed a crime against humanity, including “extermination [of] … any civilian population”.
In its judgment in the Eichmann case
in 1962, Israel’s District Court of Jerusalem found the accused guilty of “crimes against the Jewish people … in the territories of the Axis States, in the area occupied by Germany and by the Axis States”. The Court found the accused “caused the killings of millions of Jews for the purpose of executing the plan known as the ‘Final Solution’ with the intent to exterminate the Jewish people”. The Court also found the accused responsible for crimes against humanity and war crimes for murder and extermination of the civilian population carried out to persecute Jews.
In its judgment in the Eichmann case
in 1962, Israel’s Supreme Court confirmed the sentence of the District Court of Jerusalem, which found the appellant, Adolf Eichmann, guilty of “offences of the most gravity against the Nazi and Nazi Collaborators Law”, in particular the killing of millions of Jews for the purpose of carrying out the “Final Solution” with the intent to exterminate the Jewish people through murder and extermination of the civilian Jewish population.
In its judgment in the Murar case in 2006, Israel’s High Court of Justice stated:
It is well-known that the right to life and physical integrity is the most basic right that lies at the heart of the humanitarian laws that are intended to protect the local population in the territories held under the laws of belligerent occupation (see HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander
, at para. 23 of the opinion of President Barak). This right is also enshrined in Israeli constitutional law in ss. 2 and 4 of the Basic Law: Human Dignity and Liberty, and there is no doubt at all that this is a right that is on the highest normative echelon (see HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria
, at p. 368; HCJ 2753/03 Kirsch v. IDF Chief of Staff
, at pp. 377–378). All the residents of the territories – both Palestinians and Israelis – are therefore entitled to enjoy the right to life and physical integrity, and a fundamental and primary criterion that the military commander should consider when deciding to close areas is the criterion of the protection of the life and physical integrity of all the residents in the territories.
10. According to the open description of the open-fire regulations presented by the Respondents in their arguments, the Regulations allow the use of live ammunition only to deal with violent disturbances that pose real and imminent danger to IDF forces or Israeli civilians, and they stipulate that the danger will be dealt with gradually: By means of verbal warnings and non-lethal means to disperse demonstrations. Thereafter, to the extent that the use of such measures did not lead to the removal of the danger posed by the violent disturbance, the regulations permit, precise shooting directed at the legs of “a key agitator or instigator” aimed at eliminating the danger. It was asserted that the regulates stipulate that the firing at the legs of a key agitator or instigator is to be done as a last resort only, and subject to strict requirements derived from the principles of necessity and proportionality. The Respondents clarified that the regulations were approved by the Military Advocate General and the Attorney General and that the regulations do not permit live shooting at a person, but because he is in the buffer zone or because he is near the security fence, and they do not allow live fire at a person, but because of his participation in violent disturbances or his support of Hamas. The Respondents further noted that the policy of the use of force with lethal potential – in accordance with the relevant legal rules – is examined in every concrete operation of force in accordance with the changing circumstances in the field and at the professional discretion of the military authorities who manage the events. Thus, for example, the Respondents note that “under certain circumstances, including when specific information indicates a person’s participation in hostilities during the events (for example, when a person with a hand grenade is identified), the use of force against him is protected under the hostilities paradigm.”
In 1973, during a debate in the Sixth Committee of the UN General Assembly on the protection of human rights in times of armed conflict, Israel accused the Syrian Arab Republic of killing and maltreating Israeli prisoners of war.