Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Section C. Attacks against civilians
With reference to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states: “The IDF [Israel Defense Forces] is extremely conscious of the necessity to differentiate between civilians and legitimate targets. Attacks on civilians are strictly prohibited.”
Israel’s Manual on the Laws of War (1998) states that the principle of distinction “clearly imposes the obligation to refrain from harming civilians insofar as possible”.
Israel’s Manual on the Rules of Warfare (2006) states: “[A]ttacking civilians … will merely cause unnecessary suffering, and such actions are morally tainted on humanitarian grounds.”
The manual further states that “a distinction has to be made between combatants and non-combatants. This distinction imposes the duty to refrain from attacking civilians as far as possible.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
In the Kassem case
in 1969, the Israeli Military Court at Ramallah stated: “Immunity of non-combatants from direct attack is one of the basic rules of the international law of war.”
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
23. … 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. That customary principle is worded as follows:
“Rule 1: The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.
Rule 6: Civilians are protected against attack unless and for such time as they take a direct part in hostilities.
Rule 7: The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.”.
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 …
26. Customary international law regarding armed conflicts protects “civilians” from harm as a result of the hostilities. The International Court of Justice discussed that in The Legality of Nuclear Weapons, stating:
“states must never make civilians the object of attack” (p. 257).
That customary principle is expressed in article 51(2) of The First Protocol, according to which:
“The civilian population as such, as well as individual civilians, shall not be the object of attack”.
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:
14. The normative arrangements that govern the armed conflict between the State of Israel and the Hamas organization are complex. They revolve around the international laws relating to an international armed conflict. Admittedly, the classification of the armed conflict between the state of Israel and the Hamas organization as an international conflict raises several difficulties. But in a host of judgments we have regarded this conflict as an international conflict. …
15. … [T]he normative arrangements that govern the State of Israel when it conducts combat operations in the Gaza Strip derive from several legal sources. These legal sources include international humanitarian law, which is enshrined mainly in the Fourth Hague Convention Respecting the Laws and Customs of War on Land, 1907, and the regulations annexed thereto, whose provisions have the status of customary international law; the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, whose customary provisions constitute a part of the law of the State of Israel and have required interpretation by this court in several judgments … and the first Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (hereafter – “the First Protocol”), to which Israel is not a party, but whose customary provisions also constitute a part of Israeli law. …
17. Everyone agrees that the rules of customary international law – … [that] require the civilian population to be protected and its basic rights to be upheld – apply to the combat operations that are being carried out in the “Cast Lead” operation and bind the actions of the IDF [Israel Defense Forces].
In 2006, in a statement to the Knesset, Israel’s Minister of Defence stated:
I would like to state categorically: There is no Israeli pilot or commander who would issue an order to hurt uninvolved civilians. … I regret the outcome of the incident in Kafr Qana. We regret harming any adult or child, and we will continue to do everything to avoid it. We will not hesitate to investigate this incident [which] claimed so many lives, in order to learn how to prevent loss of life in the future. We are not doing this to make a good impression on anyone. We are doing it for ourselves, for our own moral conscience.
In 2007, the Government of Israel stated in a diplomatic note:
In the course of the conflict that it had initiated, Hizbullah’s operations entailed fundamental violations of international humanitarian law. Most specifically, it wilfully violated the principle of distinction, which obliges parties to a conflict to direct their attacks only against military objectives … Throughout the conflict, Hizbullah demonstrated cynical disregard for the lives of civilians, both on the Israeli side, where it targeted them, and on the Lebanese side ...
Deliberate attacks on civilian targets
Hizbullah, as a deliberate strategy, carried out missile attacks against Israeli population centers.
In the course of 34 days of fighting (July 12–August 14, 2006) approximately one third of the population of the State of Israel – about two million people − were placed within striking range of the thousands of missiles launched indiscriminately by Hizbullah. Missile attacks were launched against large cities such as Haifa, historic towns containing religious sites and archeological sites, such as Safed, Nazareth and Tiberias, farming communities such as Meron and villages such as Majdal Krum.
Some 4,000 missiles landed in Israeli territory, all over northern Israel, many in urban areas. In the course of the conflict, 43 Israeli civilians − Arabs and Jews alike − were killed, including seven children. Thousands of civilians required medical attention: 604 civilians were wounded (with various degrees of severity) and an additional 1,210 were treated for shock. The number of displaced people was estimated at between 350,000 to 500,000 while about 1,000,000 people were confined to bomb shelters.
Hizbullah not only violated humanitarian principles by deliberately targeting civilian areas, but also by using Katyusha missiles loaded with lethal anti-personnel ball bearings, intended to maximize civilian casualties.
It should be stressed that Hizbullah made no attempt to hide its intention to target civilians as a matter of policy. Indeed, the only concern expressed in the course of the conflict was that Arab Israelis should leave targeted areas so that only Jewish civilians would be killed and wounded.
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 Principle of Distinction] addresses only deliberate targeting of civilians, not incidental harm to civilians in the course of striking at legitimate military objectives. This understanding of customary international law was made explicit by numerous States in their ratifications of [the 1977] Additional Protocol I, and many other States have officially adopted this interpretation.
[footnotes in original omitted]
The report also stated: “Mistakes made in armed conflict do not, as such, constitute war crimes. The centrality of a commander’s intent means that the incidence of civilian casualties does not serve to establish a violation of the principle of distinction.”
The report further stated that “military operations that cause unintended
and unwanted damage to civilians do not constitute violations of the Law of Armed Conflict, much less a war crime”.
(emphasis in original)
In 2009, in its initial response to the Report of the Fact Finding Mission on Gaza (the “Goldstone Report”), Israel’s Ministry of Foreign Affairs stated:
The Report is rife with purported legal analysis and findings that Israeli forces committed “grave breaches” of international law and “war crimes”, without any recognition that such findings can only be based on affirmative evidence of intention to target civilians (as opposed to military objectives). In other words, there must have been intent to cause harm to civilians, as distinct from the knowledge that civilians may be harmed as an unintended consequence of pursuing a military goal.
[footnote in original omitted]
In January 2010, in an 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:
… Under the Law of Armed Conflict, the occurrence of … injury, or even death of civilians, during an operational activity does not necessarily indicate nor even imply criminal misconduct. Rather, criminal responsibility for violation of the Law of Armed Conflict requires evidence that military personnel intended
to harm civilians or clearly foresaw that excessive harm to civilians would result, when balanced against the anticipated military advantage.
[emphasis in original; 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: “IDF [Israeli Defense Forces] orders and doctrine strictly prohibit the intentional targeting of civilians”.