REAFFIRMING THE DISTINCTION BETWEEN COMBATANTS AND CIVILIANS: THE CASES OF THE ISRAELI ARMY’S “HANNIBAL DIRECTIVE” AND THE UNITED STATES’ DRONE AIRSTRIKES AGAINST ISIS Hilly Moodrick-Even Khen TABLE OF CONTENTS I. INTRODUCTION ................................................................................................. 765 II. REAFFIRMING THE PRINCIPLE OF DISTINCTION ............................................... 766 A. Civilian Perspective .................................................................................. 766 B. Combatant Perspective .............................................................................. 772 C. The War Against Terror ............................................................................ 776 III. THE PRINCIPLE OF PROPORTIONALITY ........................................................... 777 A. Double Effect ............................................................................................ 777 B. Excessiveness ............................................................................................ 778 C. Risks to Civilians Versus Combatants ...................................................... 781 D. Force Protection ........................................................................................ 782 E. Use of Human Shields ............................................................................... 783 IV. CASE ANALYSES ............................................................................................ 786 A. IDF’s Hannibal Directive in Operation Protective Edge........................... 786 B. US Drones in the War against ISIS ........................................................... 790 1. Assessment of Proportionality .............................................................. 790 2. Drone Use in the War Against ISIS ...................................................... 797 V. CONCLUSION ................................................................................................... 800 I. INTRODUCTION This millennium’s intensifying war against non-state actors, including terrorist organizations, has spurred ongoing discussions and debates about how to apply international humanitarian law (IHL) in such conflicts. Two distinct military events, occurring in different state armies, have also triggered such discussion. The first was the capture of Israeli soldier Lt. Hadar Goldin in the tunnels of Gaza during Operation Protective Edge and the decision of the Israel Defense Forces (IDF) to apply its General Staff Directive for Contending with Kidnapping Attempts (Hannibal Directive), which provides methods and procedures for both preventing and frustrating attempted kidnappings of Israeli nationals. The second was US President Obama’s authorization of drone strikes in Iraq and Syria in the fight against the Islamic State in Iraq and Syria (ISIS). These military events resemble each other in a couple of ways, despite the 766 Arizona Journal of International & Comparative Law Vol. 33, No. 3 2016 differences in the technological means of warfare involved. First, the operations were intended to protect friendly combatants’ lives with the awareness that such protection would inflict inevitable risk to civilian lives. Second, they were conducted within the paradigm of a non-international armed conflict; the organizations involved purposely violated the laws of armed conflict— specifically, the distinction between combatants and civilians—by using civilians as human shields. These comparable military events illuminate this article’s central questions: Should the principle of distinction and the protection of civilians be reevaluated in facing the challenges of the war on terror in general and the use of human shields in particular? In addition, how does the use of new technologies that allow removal of combatants from the actual battlefield affect the protection of civilian lives? I contend that while protecting combatants’ lives is a legitimate military interest, it should only be undertaken within the boundaries of the principles of distinction and proportionality. Hence, I argue that the principle of distinction should be reaffirmed and that new technologies adapted to it. I also put forward that, in dealing with the challenge of the illegitimate use of human shields, we must not forsake the principle of distinction. In the first part of this article, I discuss the principle of distinction. I begin with a short description of the normative and the historical development of the principle, then analyze the motivations of belligerents to target civilians in the battlefield from both civilian and combatant perspectives. I claim that these motivations are intensified by the challenges of the war against terrorism, where terrorist organizations violate IHL, particularly the principle of distinction. I nevertheless reaffirm the principle of distinction and that civilians’ lives must be protected. As far as the lives of the state’s combatants are concerned, while the state is obligated to respect and protect them, combatants’ lives are not on par with the lives of civilians. Hence, in the article’s second part, I examine the principle of proportionality, arguing that it is this principle that should govern the protection of combatants lives, rather than the principle of distinction. I particularly consider how the use of human shields could modify the application of the principle of proportionality, at times in favor of combatants’ lives over the lives of civilians. In the third part, I apply my theoretical conclusions to the cases of Israel’s use of the Hannibal directive in Operation Protective Edge and the US use of drone strikes during the campaign against ISIS. II. REAFFIRMING THE PRINCIPLE OF DISTINCTION A. Civilian Perspective The laws of war have determined a long-established, unequivocal prohibition on the intentional killing of civilians in war. This is the “principle of distinction,” and it has been grounded in the ideology and morality of war since Reaffirming the Distinction Between Combatants and Civilians 767 ancient times.1 The principle of distinction serves as one of the core principles of modern IHL theory and practice and was formed by modern nations through “the discourses of civilization” in the nineteenth century.2 These discourses, which intended to “identify collective and individual potential for progress and enlightenment,” were formed “to regulate and moderate war through the refinement of its rules and requirements.”3 Making the distinction between combatants and civilians was one of the means for this moderation.4 In the development of a modern legal and political theory of jus in bello between the 17th and 20th centuries—and particularly in the 19th and 20th centuries5—the principle of distinction has become a core principle in IHL. Several instructions set to distinguish between combatants and non-combatants have been directly incorporated into various instruments of IHL, such as treaties and conventions,6 as well as other instruments, such as the Lieber Code7 and the Oxford Manual of 1880.8 The principle of distinction has also served as an inspiring and guiding instruction in instruments that do not incorporate the principle verbatim: for example, the fourth Hague Convention Respecting the Laws and Customs of War on Land and Annexed Regulations (1907),9 which determined that civilian villages should be protected from attack10 and defined the qualifications of combatants;11 and the fourth Geneva Convention for the Protection of Victims of Armed Conflicts (1949),12 which is dedicated entirely to protection of civilians in times of armed conflicts. 1 Hugo Slim, Why Protect Civilians? Innocence, Immunity and Enmity in War, 79 INT’L AFF. 481, 486 (2003). 2 HELEN M. KINSELLA, THE IMAGE BEFORE THE WEAPON: A CRITICAL HISTORY OF THE DISTINCTION BETWEEN COMBATANT AND CIVILIAN 107 (2011). 3 Id. at 113. 4 Id. 5 Slim, supra note 1, at 494. 6 See, e.g., Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3, [hereinafter AP(I)]. 7 FRANCIS LIEBER, U.S. WAR DEP’T, INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD (1863) [hereinafter LIEBER CODE]. 8 Institut de Droit International [Inst. of Int’l Law], The Laws of War on Land, (Sept. 9, 1880) [hereinafter Oxford Manual]. In addition, the principle of distinction was adopted in numerous military manuals. See JEAN-MARIE HENCKAERTS & LOUISE DOSWALD- BECK, 1 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 3 (2005). 9 Convention (IV) Respecting the Laws and Customs of War on Land, with Annex of Regulations, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 [hereinafter Hague Regulations] (also referred to as the Fourth Hague Convention). 10 Id. art. 25. 11 Id. arts. 1, 3. 12 Convention Relative to the Protection of Civilians Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. 768 Arizona Journal of International & Comparative Law Vol. 33, No. 3 2016 The normative justifications for the principle of distinction (also called the principle of discrimination)13 are based primarily in just war doctrine (or theory), which was developed by Saint Thomas Aquinas in the 13th century to discuss both the justification of war and the permissible activities in the course of war.14 Just war theory was broadened beyond the limits of the theological discourse and became the model of legal discussion on