Distinction and Loss of Civilian Protection in International Armed Conflicts

Distinction and Loss of Civilian Protection in International Armed Conflicts
Yoram Dinstein - Professor Emeritus, Tel Aviv University, Israel.

[Chapter IX From "International law and military operations" International
Law Studies Volume 84 International Law and Military Operations Michael D.
Carsten Editor Naval War College Newport, Rhode Island 2008]

A. The Principle of Distinction
There are several cardinal principles lying at the root of the law of
international armed conflict. Upon examination, none is more critical than
the "principle of distinction." 1 Undeniably, this overarching precept
constitutes an integral part of modern customary international law. 2 It is
also reflected in Article 48 of the 1977 Protocol I Additional to the Geneva
Conventions of 1949, entitled "Basic rule," which provides that "the Parties
to the conflict shall at all times distinguish between the civilian
population and combatants and between civilian objects and military
objectives and accordingly shall direct their operations only against
military objectives." 3

As is clear from the text, the pivotal bifurcation is between civilians and
combatants (and, as a corollary, between military objectives and civilian
objects). It is wrong to present the dichotomy, as the International
Committee of the Red Cross (ICRC) sometimes does, 4 in the form of civilians
versus members of the armed forces. 5 Apart from the fact that not every
member of the armed forces is a combatant (medical and religious personnel
are excluded), 6 civilians who directly participate in hostilities lose
their civilian status for such time as they are acting in this fashion
although they are not members of any armed forces (see infra Section B).
It is almost axiomatic that, as a rule, all enemy combatants can be lawfully
attacked directly - at all times - during an international armed conflict.
This can be done whether they are advancing, retreating or remaining
stationary, and, as discussed later in this article, whether they are
targeted in groups or individually. 7 There are, however, a number of
caveats: (i) the attack must be carried out outside neutral territory, (ii)
it is not allowed when a ceasefire is in effect, (iii) no prohibited weapons
may be used, (iv) no perfidious methods of warfare may be resorted to, (v)
combatants are not to be attacked once they become hors de combat (by choice
(surrendered personnel) or because they are wounded, sick or shipwrecked), 8
and (vi) the attack must not be expected to cause excessive injury to
civilians.
The hallmark of civilian status in wartime is that, in contrast to
combatants, civilians - as well as civilian objects - enjoy protection from
attack by the enemy. Intentionally directing attacks against civilians (not
taking direct part in hostilities) or civilian objects is a war crime under
Article 8(2)(b)(i)-(ii) of the 1998 Rome Statute of the International
Criminal Court. 9
The term "attack" in this context means any act of violence, 10 understood
in the widest possible sense (including a non-kinetic attack), as long as it
entails loss of life, physical or psychological injury, or damage to
property. Attacks do not include non-forcible acts, such as non-injurious
psychological warfare. The line of division between what is permissible and
what is not is accentuated by computer network attacks (CNA). These would
qualify as attacks within the accepted definition only if they engender -
through reverberating effects - human casualties or damage to property (it
being understood that a completely disabled computer is also damaged
property). 11
It is illegal to launch an attack the primary purpose of which is to spread
terror among the civilian population. 12 The prohibition is applicable even
if the attacker has every reason to believe that such a terror campaign will
shatter the morale of the civilian population - so that the enemy's
determination to pursue the armed conflict will be eroded - and the war will
be brought to a rapid conclusion (saving, as a result, countless lives on
both sides). 13 Yet, an important rider is in order. What counts here is not
the actual effect of the attack but its purpose or intent: an attack is not
forbidden unless terrorizing civilians is its primary aim. 14 Nothing
precludes mounting an otherwise lawful attack against combatants and
military objectives, even if the net outcome (due to resonating "shock and
awe") is the collapse of civilian morale and the laying down of arms by the
enemy.
The principle of distinction excludes not only deliberate attacks against
civilians, but also indiscriminate attacks, i.e., instances in which the
attacker does not target any specific military objective (due either to
indifference as to whether the ensuing casualties will be civilians or
combatants or, alternatively, to inability to control the effects of the
attack). 15 A leading example is the launching by Iraq of Scud missiles
against military objectives located in or near residential areas in Israel
in 1991, notwithstanding the built-in imprecision of the Scuds which made
accuracy in acquiring military objectives virtually impossible (and, in the
event, no military objective was struck).
In regular inter- State warfare - where asymmetrical warfare is not part of
the military equation - the prohibition of indiscriminate attacks is perhaps
of even greater practical import than that of the ban of direct attacks
against civilians. The reason is that, generally speaking, the armed forces
of a civilized country are rarely likely nowadays to target civilians with
premeditation. However, the prospect of the incidence of indiscriminate
attacks - predicated, as it is, on lack of concern rather than on
calculation - is much higher. A commonplace illustration would be a
high-altitude air raid, carried out notwithstanding conditions of zero
visibility and malfunctioning instruments for identifying preselected
military objectives. Certainly, military training must tenaciously address
the issue of indiscriminate attacks if they are to be eliminated.
The flip side of civilian objects (which are protected from attack) is
military objectives (which are not). The authoritative definition of
military objectives appears in Article 52(2) of Additional Protocol I:
Attacks shall be limited strictly to military objectives. In so far as
objects are concerned, military objectives are limited to those objects
which by their nature, location, purpose or use make an effective
contribution to military action and whose total or partial destruction,
capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage. 16
This definition is very open ended, if only because every civilian object -
not excluding even a hospital or a church - is susceptible to use by the
enemy for military purposes. Such use (or abuse) will turn even a hospital
or a place of worship into a military objective, exposing it to a lawful
attack under certain conditions. The only attenuating consideration is that,
under Article 52(3) of Protocol I, in case of doubt the presumption should
be that such a place is actually used for the normal purposes to which it is
dedicated. 17
It follows that the key to robust civilian protection lies, perhaps, less in
the fundamental requirement of concentrating attacks on identifiable
military objectives and more in the complementary legal condition of
observing proportionality in the effects of the attack. This means, as
prescribed in Article 51(5)(b) of Protocol I, that - when an attack against
a military objective is planned - incidental losses to civilians or civilian
objects (usually called "collateral damage") must not be expected to be
"excessive in relation to the concrete and direct military advantage
anticipated." 18 Intentionally launching an attack in the knowledge that it
will cause incidental loss of life or injury to civilians or damage to
civilian objects which would be clearly excessive in relation to the
concrete and direct overall military advantage anticipated is a war crime
under Article 8(2)(b)(iv) of the Rome Statute of the International Criminal
Court. 19
The expectation of excessive incidental losses to civilians or damage to
civilian objects taints an attack as indiscriminate in character. Yet it
must be borne in mind that not every inconvenience to civilians ought to be
considered relevant. In wartime, there are inevitable scarcities of
foodstuffs and services. Indeed, food, clothing, petrol and other essentials
may actually be rationed; buses and trains may not run on time; curfews and
blackouts may impinge on the quality of life; etc. These do not count in the
calculus of proportionality. Moreover, the military advantage anticipated
from an attack must be viewed in a rather holistic fashion: when a
large-scale attack is in progress, it is not required to assess every
discrete segment in isolation from the overall picture. 20
Undeniably, what is deemed excessive is often a matter of subjective
appraisal, which takes place in the mind of the beholder (always remembering
that the appraisal must be done in a reasonable fashion). The difficulty is
that military advantage and civilian casualties are like the metaphorical
apples and oranges: a comparison between them is an art, not a science.
Civilian losses can be counted, civilian damage can be surveyed and
estimated, but how can you quantify a military advantage on a measurable
scale? Additionally, since the entire process is a matter of pre-attack
evaluation and expectation, it must be acknowledged that it is embedded in
probabilities. What is to be done if "the probability of gaining the
military advantage and of affecting the civilian population is not 100
percent but lower and different"? 21
All the circumstances must be factored in. Thus, the bombardment of a
hospital or a church used by the enemy may be given a green light if the
actual number of patients or worshippers on site is negligible, whereas,
should the numbers be disproportionate, the attack may have to be aborted.
However, there is a difference between the cases of, say, one mosque where
the minaret is used by a single enemy sniper and another serving as a
command and control center of an armored division. Taking out the sniper
must not entail a substantial civilian price tag, but the elimination of a
key command and control center is a different matter. It has to be borne in
mind that "excessive" is not interchangeable with "extensive." Some scholars
take that position, 22 but it is based on a misreading of the text. 23 If
the strategic and military value of a military objective is exceedingly
high, significant collateral civilian losses resulting from an attack may
well be countenanced.
Any planned attack - and any commensurate estimate of the number of
civilians present in or near military objectives - must be based on
up-to-date intelligence. The "fog of war" is such that mistakes are
unavoidable in every sizable military operation. When a legal analysis is
made after the event, there is a built-in temptation to scrutinize the
situation with the benefit of hindsight. But this temptation must be
strongly resisted. The proper question is not whether collateral damage to
civilians proved to be excessive in actuality: it is whether collateral
damage could or should have been reasonably expected to be excessive at the
time of planning, ordering or carrying out the attack. A reasonable
expectation has to be linked to the data collated and interpreted at the
time of action. Evidently, a valid evaluation of the state of affairs must
be based on information that is current and not obsolete. If crucial
information (say, about the absence of civilians from the vicinity of a
military objective) is derived from a reconnaissance mission, the attack
should follow soon thereafter since a long interval may mean that the facts
on the ground have undergone a profound change. 24
Pursuant to Article 57(2) (a) (ii) of Additional Protocol I, those who plan
or decide on an attack must take all feasible precautions (taking into
account all circumstances prevailing at the time), if not to avoid
altogether, at least to minimize incidental losses to civilians or civilian
objects. 25 Yet the aspiration to minimize collateral damage cannot trump
all other military inputs. Minimize the costs to civilians, yes, but not at
all costs to the attacking force. There is no obligation incumbent on the
attacker to sustain military losses only in order to minimize incidental
losses to enemy civilians or civilian objects. "Survival of the military
personnel and equipment is an appropriate consideration when assessing the
military advantage of an attack in the proportionality context." 26
Minimizing incidental losses or injury to civilians can be accomplished
through the employment of precision-guided munitions (PGM) - where
available - to target a military objective located in the midst of a densely
populated residential area. The use of PGM enables the strike to be
surgical, with little collateral damage expected to the surrounding
civilians or civilian objects. As pointed out by Michael Schmitt, this is so
not only because PGM are more accurate, but also because "the explosive
charge needed to achieve the desired result is typically smaller than in
their unguided counterparts." 27
In order to achieve the same goal of sparing civilians and civilian objects
from the effects of attacks, Article 57(3) of Protocol I sets forth that, if
a choice is possible among several military objectives for obtaining a
similar military advantage, the one expected to cause the least incidental
civilian losses and damage should be selected. 28 But, again, the
unfortunate truth is that it is often impossible to determine with any
degree of credibility whether the elimination of diverse military objectives
would afford a similar military advantage.
Other feasible precautions include - if circumstances permit - the issuance
of effective advance warnings to civilians of an impending attack (in
conformity with Article 57(2)(c) of Additional Protocol I 29 ). All the
same, circumstances do not always permit the issuance of such warnings.
Otherwise, surprise attacks would have had to be struck out of the military
vocabulary.
"The law of armed conflict singles out for special protection certain
specified categories of civilians, either because they are regarded as
especially vulnerable or on account of the functions they perform." 30 The
first category is illustrated by women and children, 31 and the second by
civilian medical and religious personnel. 32 In the same vein, certain
civilian objects - for instance, cultural property 33 or places of worship
34 - also enjoy special protection. But the special protection must be
looked upon as merely the icing on the cake: it adds some flavor but it does
not really affect the core. Some additional elements - enhancing the range
of the protection - are brought into play, for the benefit of the selected
persons or objects, yet the most vital safeguards are granted to all
civilians and civilian objects without fail. There is also a proviso:
protection (even special protection) may be lost as a result of a failure to
meet prescribed conditions, as stipulated by the law of international armed
conflict.
B. Direct Participation in Hostilities
Direct participation of a civilian in hostilities leads to loss of
protection from attack of the person concerned (within the temporal limits
of the activity in question). As promulgated in Article 51(3) of Protocol I,
civilians enjoy a general protection against dangers arising from military
operations "unless and for such time as they take a direct part in
hostilities." 35 Occasionally, the reference is to "active" (instead of
"direct") participation in hostilities, 36 and at times either adjective is
deleted. 37 The bottom line is essentially the same: 38 a person who takes
part in hostilities loses his protection. There is no doubt that, as held by
the Supreme Court of Israel (per President Barak) in the Targeted Killings
case of 2006, this norm reflects customary international law. 39
There is a consensus that a civilian can be targeted at such time as he is
taking a direct part in hostilities. 40 There is nevertheless a serious
debate about taxonomy. For my part, I believe that by directly participating
in hostilities a person turns into a combatant - indeed, more often than
not, an unlawful combatant. 41 On the other hand, the ICRC, while conceding
that "[l]oss of protection against attack is clear and uncontested," 42
adheres to the view that the status of that person remains one of a
civilian.
The difference of opinion about status has a practical consequence only when
the person concerned is captured. I am inclined to think that, as an
unlawful combatant, the person loses the general protection of the Geneva
Conventions (except in occupied territories) and only enjoys some minimal
safeguards, in conformity with human rights standards. The ICRC maintains
that the general protection of civilian detainees under Geneva Convention
(IV) applies also to civilians directly participating in hostilities. My own
position is predicated on Article 5 of that Convention, whereby - other than
in occupied territories - those engaged in hostilities do not benefit from
the privileges of the Convention, although they still have to be treated
with humanity and are entitled to a fair trial. 43
The words "for such time" appearing in Article 51(3) of Protocol I raise
serious questions about their scope. 44 The government of Israel has
traditionally contended that these words do not reflect customary
international law, but the Supreme Court has utterly rejected that
submission. 45 The Court made it clear that a civilian who only sporadically
takes a direct part in hostilities does not lose protection from attack on a
permanent basis: once he disconnects himself from these activities, he
regains his civilian protection from attack 46 (although he may still be
detained and prosecuted for any crime that he may have committed during his
direct participation in hostilities 47 ).
The desire to confine the exposure of the civilian who directly participates
in hostilities to a finite space of time makes a lot of sense. It is
worthwhile to remember that many armed forces in the world incorporate large
components of reservists who are called up for a prescribed period and are
then released from service. A reservist is basically a civilian who wears
the uniform of a combatant for a while and is then cloaked again with the
mantle of a civilian. Surely, for such time as he is a combatant, a
reservist can be attacked. Yet, before and after, qua civilian, he is exempt
from attack. The same consideration should apply grosso modo to other types
of civilians turned combatants and vice versa.
There are two salient riders added to the general proposition by the
judgment in the Targeted Killings case. The first is that the cycle of
direct participation in hostilities commences at an early stage of
preparation and deployment, continuing throughout the engagement itself, to
cover also the disengagement and return phase. 48 Although there are those
who maintain that the expression "for such time" should be construed
strictly as encompassing only the engagement itself, this claim is generally
rejected. 49 1 (and others) take the position that, in demarcating the
relevant time span in the course of which the person concerned is actually
taking part in hostilities, it is permissible to go as far as reasonably
possible both "upstream" and "downstream" from the actual engagement.
The second rider is that while a person directly participating in
hostilities more than once may still revert to a civilian status during an
interval, this cannot be brought off when the hostile activities take place
on a steadily recurrent basis with brief pauses (the so-called "revolving
door" phenomenon). 50 Those attempting to be "farmers by day and fighters by
night" lose protection from attack even in the intermediate periods
punctuating military operations. The same rationale applies if an individual
becomes a member of an organized armed group (which collectively takes a
direct part in the hostilities): he would lose civilian protection for as
long as that membership lasts. In the locution of the Court, an organized
armed group becomes the "home" of the terrorist for whom a respite -
interposing between acts of hostilities - merely means preparation for the
next round. 51 In practical terms, the individual in question may be
targeted (see infra Section C), even when not personally linked to any
specific hostile act - simply due to his membership in such a group - as
long as that membership continues.
There is no doubt that the construct of direct participation in hostilities
is not open ended, and it "is far narrower than that of making a
contribution to the war effort." 52 Still, a whole range of activities can
be identified as concrete examples of direct participation in hostilities.
As the Supreme Court of Israel expounded, these include not only using
firearms or gathering intelligence, but also acting as a guide to
combatants, and, most pointedly, masterminding such activities through
recruitment or planning (in contradistinction to, e.g., merely donating
money contributions or selling supplies to combatants: the latter activities
do not come within the ambit of direct participation in hostilities). 53
Under Article 50( 1 ) of Protocol I, " [i] n case of doubt whether a person
is a civilian, that person shall be considered to be a civilian." 54 The
provision is particularly germane to the issue of direct participation in
hostilities. It is imperative to ensure that military units tasked with the
mission of winnowing out civilians who engage in hostilities will not treat
all civilians as targetable, "shooting first and asking questions later." 55
Additionally, the presence of civilians directly participating in
hostilities among the civilian population does not deprive the population at
large of the protection from attack that it is entitled to. 56
The theme of direct participation in hostilities has been under study for a
number of years by a group of experts under the aegis of the ICRC. While the
study has not yet been consummated, it has exposed a number of challenging
questions and has led to lengthy debates. One hotly contested point will be
discussed infra in detail. But there is a host of thorny problems. By way of
illustration, there are disputes regarding the different degrees of civilian
contribution to electronic warfare, ranging from the mere maintenance of
military computers to playing the role of the "man in the loop" guiding -
perhaps from a great distance - a military unmanned aerial vehicle (UAV) or
a CNA, with a view to causing death, destruction or damage. There are also
arguments concerning the roles of civilian contractors who may offer purely
logistical services (e.g., refueling military aircraft en route to a
far-away armed conflict) but may also be carrying out paramilitary missions
(such as guarding supply convoys) near the contact zone with the enemy.
C. Targeted Killings of Civilians Directly Participating in Hostilities
Hague Regulation 23(b) forbids the treacherous killing of enemy individuals,
57 and Article 37(1) of Additional Protocol I prohibits killing an adversary
by resort to perfidy (defined as an act inviting the confidence of an
adversary to lead him to believe that he is entitled to - or is obliged to
accord - protection under the law of international armed conflict, with an
intent to betray that confidence). 58 However, when perfidy is not in play,
even the ICRC Model Manual concedes that an enemy individual combatant maybe
targeted (including a head of state who is the commander-in-chief) . 59
There is a nexus between the question of whether a civilian is directly
participating in hostilities and the issue of targeted killing. Logic
dictates that, since a combatant may be individually targeted for attack,
the same rule should apply to a civilian who takes a direct part in
hostilities (at such time as he is indulging in that activity). But scholars
like to debate the deceptively simple hypothetical scenario of a civilian
driving an ammunition truck to supply the armed forces. One view (maintained
by General A.P.V. Rogers) is that this will not result in the forfeiture of
civilian protection, although the presence of the civilian driver in the
ammunition truck - a palpable military objective - will put him at risk
should the truck be attacked on his watch. 60 To fully perceive what is at
issue, it is necessary to flesh out the postulated sequence of events. Let
us assume that the ammunition truck reaches a gas station and the driver
parks the truck, going into a mini-mart to purchase some refreshments. An
enemy commando unit, lying in wait, is mounting an attack during that exact
time frame. The question is: can the commandos attack only the ammunition
truck (at its parking spot, which may be heavily guarded) or can they also
kill or neutralize the driver when he is by himself inside the minimart?
General Rogers's position is clear cut: only the ammunition truck can be
attacked. As soon as the driver detaches himself from the truck, he sheds
the risk and benefits from civilian protection. I (among others) disagree.
We believe that it all depends on whether the script unfolds in geographic
proximity to the front line or far away from it. If the location is at a
great distance from the front line (say, in the continental United States
while the front line is in Afghanistan), the driver remains a civilian and
runs a risk solely when he is in or near the ammunition truck. However, if
the venue shifts and the ammunition truck is being driven in immediate
logistical support of the military units deployed at the front line, the
driver must be considered a civilian directly participating in hostilities:
he then loses protection from attack even when he steps out of the truck. 61
In the Targeted Killings case, the Supreme Court of Israel has clearly
endorsed the latter view. 62
In occupied territories, there is a preliminary issue related to targeted
killings of civilians directly participating in hostilities, namely, whether
the occupying power is capable of taking effective law enforcement measures
vis-a-vis such persons in lieu of slaying them. As President Barak stressed,
detention of a person directly participating in hostilities against the
occupying power is the preferred step, provided that his arrest is feasible.
63 If detention is not a viable option, it must be recognized that a
civilian taking a direct part in hostilities risks his life - like any
combatant - and is exposed to a lethal attack. 64 Differently put, a strike
targeting such a person - and killing him - is permissible when non-lethal
measures are either unavailable or ineffective. 65
Although the Supreme Court of Israel pronounced that a targeted killing of a
terrorist in an occupied territory (when detention is not feasible) is
lawful, the Court was adamant that whenever innocent civilians are present
in the vicinity of the targeted individual and they are likely to be
injured, the principle of proportionality must be applied. 66 The relevance
of the principle of proportionality in the setting of targeted killings has
come to the fore in Israel, because of a highly publicized use of a one-ton
bomb against a well-known Palestinian terrorist hiding in a residential
area. There is a growing public sentiment that such a massive bomb should
not have been used, since it was almost bound to cause excessive collateral
damage to civilian bystanders.
D. Human Shields
This raises the cognate issue of the use of civilian "human shields"
intended to lend protection to combatants or military objectives. Article 28
of Geneva Convention (IV) states that "[t]he presence of a protected person
may not be used to render certain points or areas immune from military
operations." 67 For its part, Article 51(7) of Protocol I reads, in part,
that "[t]he presence or movements of the civilian population or individual
civilians shall not be used to render certain points or areas immune from
military operations, in particular in attempts to shield military objectives
from attacks or to shield, favour or impede military operations." 68
Irrefutably, the prohibition of the use of civilians as human shields
mirrors customary international law. 69 Utilizing the presence of civilians
or other protected persons to render certain points, areas or military
forces immune from military operations is recognized as a war crime by
Article 8(2)(b)(xxiii) of the Rome Statute. 70
It is incontrovertible that when combatants (including civilians directly
participating in hostilities) surround themselves by civilians, this is a
breach of the law of international armed conflict. All the same, it is
necessary to distinguish between voluntary and involuntary human shields. As
the Supreme Court of Israel (per President Barak) held in the Targeted
Killings case, whereas involuntary human shields are victims, voluntary
human shields are to be deemed civilians who take a direct part in
hostilities. 71 That being the case, voluntary human shields are targetable
and, of course, they "are excluded in the estimation of incidental injury
when assessing proportionality." 72
What if, contrary to the law of international armed conflict, involuntary
human shields are actually compelled to screen a military objective? Article
51(8) of Protocol I sets forth that a violation of the prohibition of
shielding military objectives with civilians does not release a belligerent
party from its legal obligations vis-a-vis the civilians. 73 What this means
is that the principle of proportionality in attack remains in effect. I do
not deny that the principle of proportionality must still govern the
planning of an attack against a military objective screened by involuntary
civilian human shields. However, in my opinion, the test of excessive injury
to civilians must be relaxed in such exceptional circumstances. That is to
say, to my mind, the appraisal of whether civilian casualties are excessive
in relation to the military advantage anticipated must make allowances for
the fact that, by dint of the large (albeit involuntary) presence of
civilians at the site of the military objective, the number of civilian
casualties can be expected to be higher than usual. To quote Louise
Doswald-Beck, "[t]he Israeli bombardment of Beirut in June and July of 1982
resulted in high civilian casualties, but not necessarily excessively so
given the fact that the military targets were placed amongst the civilian
population." 74 This approach is confirmed by the 2004 UK Manual on the Law
of Armed Conflict
Any violation by the enemy of this rule [the prohibition of human shields]
would not relieve the attacker of his responsibility to take precautions to
protect the civilians affected, but the enemy's unlawful activity may be
taken into account in considering whether the incidental loss or damage was
proportionate to the military advantage expected. 75
Customary international law is certainly more rigorous than Protocol I on
this point. It has traditionally been grasped that, should civilian
casualties ensue from an illegal attempt to shield a military objective,
their blood will be on the hands of the belligerent party that abused them
as human shields. 76 The long and the short of it is that a belligerent
party is not vested by the law of international armed conflict with the
power to block an otherwise lawful attack against military objectives by
deliberately placing civilians in harm's way. 77
The prohibition of placing civilians as human shields around a military
objective applies to all belligerent parties. Even though this has become a
modus operandi typical of terrorists, there are multiple ways in which
regular armed forces may be tempted to employ analogous tactics to
facilitate military operations. The issue arose before the Supreme Court of
Israel (per President Barak), in 2006, in the Early Warning case. 78 The
Court had to determine the legality of an "Early Warning Procedure" (adopted
by the Israel Defense Forces (IDF)) whereby, when a terrorist has been
cornered and besieged, a local resident would be encouraged to volunteer
(provided that no harm to the messenger was anticipated) in order to relay a
warning and a call to surrender so as to avoid unnecessary bloodshed. 79 The
"Early Warning Procedure" drew criticism from outside observers 80 and it
was nullified by the Court. President Barak - relying on Article 28 of
Geneva Convention (IV) and on Article 51(7) of Protocol I (although Israel
is not a contracting party to Protocol I) - stressed that the IDF was not
allowed to use protected persons as human shields and that, therefore, the
assistance of a local resident could certainly not be required coercively.
81 But what about assistance offered voluntarily in circumstances where this
is not expected to place the person concerned in jeopardy? President Barak
ruled against the "Early Warning Procedure" on four grounds: (i) protected
persons must not be used as part of the military effort of the occupying
power, (ii) everything must be done to separate the civilian population from
combat operations, (iii) voluntary consent in these circumstances is often
suspect, and (iv) it is not possible to tell in advance whether the activity
of the protected person puts him in danger. 82
Generally speaking, President Barak's reasoning is persuasive. Yet, he did
not explain why such assistance cannot be offered by a close relative -
especially, a mother or a father - of a terrorist besieged in a building
that is about to be stormed (with the likelihood of death in action of the
terrorist), when the initiative is taken by, for example, the parent who
begs to be given a chance to persuade the besieged son to surrender and save
his life. 83 In such exceptional circumstances, there is little if any
danger to the life of the parent, and humanitarian considerations actually
tip the balance in favor of allowing the requested intercession to take
place.
In conclusion, this article should show that, although the protection of
civilians is a basic tenet of the international law of armed conflict, a
civilian cannot take that protection for granted. There are many ways in
which civilian protection will not render practical assistance, and a
civilian would become a victim of war inadvertently (due to collateral
damage). But, above all, civilian protection can be lost if the person who
purports to benefit from it crosses a red line by directly participating in
hostilities. He may then be targeted, and this need not be done in an
anonymous fashion. Absent perfidy, the bullet that kills him may lawfully
have his name engraved on it.
Notes
1. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996
I.C.J, 226, 257 (July 8).
2. Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International
HUMANITARIAN LAW (2005) (2 volumes: Volume I, Rules; Volume II, Practice (2
Parts)).
3. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts, June
8, 1977, 1125 U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR 422
(Adam Roberts & Richard Guelff eds., 3d ed. 2000) [hereinafter Protocol I].
4. HENCKAERTS & DOSWALD-BECK, supra note 2, Vol. I, at 17.
5. See Yoram Dinstein, The ICRC Customary International Humanitarian Law
Study, 36 Israel Yearbook on Human Rights 1, 8-9 (2006).
6. Henckaerts & Doswald-Beck, supra note 2, Vol. I, at 1 1.
7. On the issues of retreating troops and individual targeting, see YORAM
DINSTEIN, THE Conduct of Hostilities under the Law of International Armed
Conflict 94-95 (2004).
8. Hague Regulations, annexed to Hague Convention IV Respecting the Laws and
Customs of War on Land reg. 23(c), Oct. 18, 1907; Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field art. 12, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter
Geneva Convention (I)]; Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 12, Aug.
12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention
(II)]; all reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 3, at 69,
77; 197, 201; and 222, 226, respectively.
9. Rome Statute of the International Criminal Court, July 17, 1998, 2187
U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 3, at 671,
676 [hereinafter Rome Statute].
10. See Protocol I, supra note 3, art. 49(1), at 447.
11. See Knut Dormann, The Applicability of the Additional Protocols to
Computer Network Attacks: An ICRC Viewpoint, in INTERNATIONAL EXPERT
CONFERENCE ON COMPUTER NETWORK Attacks and the Applicability of
International Humanitarian Law 139, 142-43 (Karin Bystrom ed., 2005).
12. See Protocol I, supra note 3, art. 51(2), at 448.
13. See Stefan Oeter, Methods and Means of Combat, in THE HANDBOOK OF
HUMANITARIAN Law in Armed CONFLICTS 105, 157 (Dieter Fleck ed., 1995).
14. See Richard R. Baxter, The Duties of Combatants and the Conduct of
Hostilities (Law of The Hague), in INTERNATIONAL DIMENSIONS OF HUMANITARIAN
LAW 93, 1 18 (United Nations Educational, Scientific and Cultural
Organization ed., 1988).
15. On indiscriminate attacks, see Protocol I, supra note 3, art. 51(4)-
(5), at 448-49.
16. Protocol I, supra note 3, at 450.
17. Id,
18. Id. at 449.
19. Rome Statute, supra note 9, at 676.
20. See United Kingdom (UK) Ministry of Defence, Manual of the Law of Armed
CONFLICT para. 5.4.4 (2004) [hereinafter UK MANUAL].
21 . Marco Sassoli, Targeting: The Scope and Utility of the Concept of
'Military Objectives' for the Protection of Civilians in Contemporary Armed
Conflicts, in NEW WARS, NEW LAWS? APPLYING the Laws of War in 2 1st Century
Conflicts 181, 204 (David Wippman & Matthew Evangelista eds., 2005)
[hereinafter NEW WARS].
22. See Claude Pilloud & Jean Pictet, Article 51 - Protection of the
Civilian Population, in COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE
1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, at 613, 626 (Yves Sandoz,
Christophe Swinarski & Bruno Zimmermann eds., 1987).
23. Christopher Greenwood, A Critique of the Additional Protocols to the
Geneva Conventions of 1949, in THE CHANGING FACE OF CONFLICT AND THE
EFFICACY OF INTERNATIONAL HUMANITARIAN LAW 3, 1 1 n.29 (Helen Durham &
Timothy L. H. McCormack eds., 1999).
24. See LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 160 (2d ed.
2000).
25. Protocol I, supra note 3, at 739.
26. Michael N. Schmitt, Precision Attack and International Humanitarian Law,
87 INTERNATIONAL Review of the Red Cross 445, 462 (2005).
27. Michael N. Schmitt, Asymmetrical Warfare and International Humanitarian
Law, in INTERNATIONAL HUMANITARIAN LAW FACING NEW CHALLENGES: SYMPOSIUM IN
HONOUR OF KNUT IPSEN 1 1, 42 (Wolff Heintschel von Heinegg & Volker Epping
eds., 2007).
28. Protocol I, supra note 3, at 453.
29. Id.
30. Frits Kalshoven, Reflections on the Law of War: Collected Essays 553
(2007).
31. See Protocol I, supra note 3, arts. 76(1)-77(1), at 466.
32. See id., art. 15, at 431.
33. See Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240, reprinted in
DOCUMENTS ON THE LAWS OF WAR, supra note 3, at 373.
34. See Protocol I, supra note 3, art. 53, at 450.
35. Id.
36. See, e.g., common Article 3(1) to Geneva Convention (I), supra note 8,
at 198; Geneva Convention (II), id. at 223; Convention Relative to the
Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S.
135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 3, at 244, 245
[hereinafter Geneva Convention (III); Convention Relative to the Protection
of Civilian Persons in Time of War, Aug. 12,1 949, 6 U.S.T. 3516,75 U.N.T.S.
287, reprinted in id. at 301, 302 [hereinafter Geneva Convention (IV)].
37. See, e.g., Additional Protocol I, supra note 3, art. 8(a), at 426.
38. Cf Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, para. 629
(Sept. 2, 1998).
39. HCJ [High Court of Justice] 769/02, Public Committee against Torture in
Israel et al. v. Government of Israel et al. para. 30. (A full translation
is available in 46 INTERNATIONAL LEGAL MATERIALS 375 (2007)).
40. Id., para. 31.
41. On unlawful combatants, see DlNSTEIN, supra note 7, at 27-44.
42. HENCKAERTS & DOSWALD-BECK, supra note 2, Vol. I, at 22.
43. Geneva Convention (IV), supra note 36, at 303.
44. See Kenneth Watkin, Humans in the Cross-Hairs: Targeting and
Assassination in Contemporary Armed Conflict, in NEW WARS, supra note 21, at
137, 154-57.
45. HCJ 769/02, supra note 39, paras. 30, 38.
46. Id., paras. 39-40.
47. See Pilloud & Pictet, supra note 22, at 613, 619.
48. HCJ 769/02, supra note 39, para. 34.
49. See Kenneth Watkin, Controlling the Use of Force: A Role for Human
Rights Norms in Contemporary Armed Conflict, 98 AMERICAN JOURNAL OF
INTERNATIONAL LAW 1,17 (2004).
50. HCJ 769/02, supra note 39, para. 40.
51. Id., para. 39.
52. Frits Kalshoven & Liesbeth Zegveld, Constraints on the Waging of War
99100 (3d ed. 2001).
53. HCJ 769/02, supra note 39, para. 35.
54. Protocol I, supra note 3, at 448.
55. KALSHOVEN, supra note 30, at 73-74, 214.
56. Cfl Protocol I, supra note 3, art. 50(3), at 448.
57. Hague Regulations, supra note 8, at 77.
58. Protocol I, supra note 3, at 442.
59. MODEL MANUAL ON THE LAW OF ARMED CONFLICT FOR ARMED FORCES para.
1013.2-3 (A.P.V. Rogers & P. Malherbe eds., 1999) [hereinafter MODEL
MANUAL].
60. See A.P.V. ROGERS, LAW ON THE BATTLEFIELD 1 1-12 (2d ed. 2004).
61. Interestingly enough, the MODEL MANUAL (supra note 59) - coauthored by
General Rogers - states that it is prohibited for civilians to act "as
drivers delivering ammunition to firing positions" (para. 601. 2.b).
62. HCJ 769/02, supra note 39, para. 35.
63. Id., para. 40.
64. Id., para. 46.
65. Id., para. 60.
66. Id., paras. 42-46.
67. Geneva Convention (IV), supra note 36, at 312.
68. Protocol I, supra note 3, at 449.
69. HENCKAERTS & DOSWALD-BECK, supra note 2, Vol. I, at 337.
70. Rome Statute, supra note 9, at 678.
71. HCJ 769/02, supra note 39, para. 36.
72. Michael N. Schmitt, War, Technology and the law of Armed Conflict, in
THE LAW OF WAR IN THE 2 1ST CENTURY: WEAPONRY AND THE USE OF FORCE 137, 177
(Anthony M. Helm ed., 2006) (Vol. 82, US Naval War College International Law
Studies).
73. Protocol I, supra note 3, at 449.
74. See Louise Doswald-Beck, The Civilian in the Crossfire, 24 JOURNAL OF
PEACE RESEARCH 251,257(1987).
75. See UK MANUAL, supra note 20, para. 5.22.1 .
76. See W. Hays Parks, Air War and the Law of War, 32 AIR FORCE LAW REVIEW
1, 162-63 (1990).
77. See Andrew D. McClintock, The Law of War: Coalition Attacks on Iraqi
Chemical and Biological Weapon Storage and Production Facilities, 7 EMORY
INTERNATIONAL LAW REVIEW 633, 663-64(1993).
78. HCJ 3799/02, Adalah - Legal Center for Arab Minority Rights in Israel et
al. v. Commander of the Central Region et al. (2007).
79. Id., paras. 5-7.
80. See Roland Otto, Neighbours as Human Shields? The Israel Defense Forces'
"Early Warning Procedure" and International Humanitarian law, 86
INTERNATIONAL REVIEW OF THE RED CROSS 771-86 (2004).
8 1 . HCJ 3799/02, supra note 78, paras. 2 1-22.
82. Id., para. 24.
83. The possibility was raised by Deputy President Cheshin in paragraph 3 of
his Separate Opinion, id.