Are 'armed settlers' legitimate military targets under int'l law? - analysis

Claims have been made that the Dees, who were murdered in a recent terror attack, were armed settlers as justification for them being targeted.

 The scene of a terror attack on Dizengoff street, in central Tel Aviv, March 9, 2023 (photo credit: ERIK MARMOR/FLASH90)
The scene of a terror attack on Dizengoff street, in central Tel Aviv, March 9, 2023
(photo credit: ERIK MARMOR/FLASH90)

As always, recent terrorist attacks against Israelis living in disputed territories are being met with several rationales to justify such violent acts.

These justifications often deny Israeli civilians their protected status under International Humanitarian Law (IHL) and identify them as valid military targets based on being armed or their reserve or past military service. Like other terrorist apologists, these arguments are in contradiction with IHL.

When several members of Efrat's Dee family were murdered on April 7, terrorism proponents suggested that they were "armed settlers," sharing false photos of the girls with rifles. While the Dees were not armed and were civilians by any reasonable reading of international law, the argument has been repeated with many terrorist attacks.

Civilians are not to be targets of deliberate attacks, as detailed in Article 48 of Additional Protocol I to the Geneva Conventions (AP I). Only military personnel and objects are valid targets. Civilians enjoy these protections, according to AP I article 51, until they take a direct part in hostilities.

The challenge of some arguments is whether being armed and in disputed territory is considered direct participation in hostilities.

 MEMORIAL CANDLES are lit after Shabbat, at the scene of a terror attack on a synagogue on a Friday night last month, in which seven people were killed, in Jerusalem’s Neveh Ya’acov neighborhood. (credit: NOAM REVKIN FENTON/FLASH90) MEMORIAL CANDLES are lit after Shabbat, at the scene of a terror attack on a synagogue on a Friday night last month, in which seven people were killed, in Jerusalem’s Neveh Ya’acov neighborhood. (credit: NOAM REVKIN FENTON/FLASH90)

As previously detailed by The Jerusalem Post, residing in disputed territory is not enough to dispel one's civilian status or to be considered direct participation -- It is too subjective a standard or tenuous a connection to hostilities.

What type of armed activity counteracts civilian status?

While there is no universal standard for "direct participation" in war, but -- in addition to contributing to concrete military activity-- in many military manuals operation of a weapon against military personnel or materials is required. Civilian firearm ownership exists throughout the world and is not reason enough to warrant the revocation of protected status.

Some, such as Euro-Med Human Rights Monitor chief of communications Muhammad Shehada have contended that taking up arms against terrorist attackers constitutes participation in hostilities.

"Settlers lose their civilian status if they take to arms or take a direct part in hostilities."

Muhammad Shehada

Shehada wrote on Twitter on April 8 in the wake of the Dee killings, in an interpretation to an alleged statement by Amnesty International. "The police commissioner just called on settlers to take to arms."

However, defensive action by civilians against deliberate military attacks against them is also not considered participation in hostilities.

Civilians have a right to self-defense from pillage, rape and murder at the hands of marauding forces. If civilians had no armed recourse against violators of IHL, they would be at the mercy of those who have already proven themselves to have none. If civilians lost protected status by taking up arms, then they would paradoxically retroactively legitimize attacks on civilians by forcing them to arms and to become valid hostiles. This would be against the spirit of the law.

Indeed, according to the International Committee of the Red Cross's 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, while using force would cause harm to a party to hostilities, the objective in self-defense is not supportive of any side to a conflict.

"If individual self-defense against prohibited violence were to entail loss of protection against direct attack, this would have the absurd consequence of legitimizing a previously unlawful attack," said the reference guide. "Therefore, the use of necessary and proportionate force in such situations cannot be regarded as direct participation in hostilities."

The ownership of firearms by Israelis is often tied to impending, past or reserve military service by those seeking to justify terrorist attacks. People are not civilians if members of an armed military force. These arguments also fall short.

"While in some countries, entire segments of the population between certain ages may be drafted into the armed forces in the event of armed conflict, only those persons who are actually drafted, i.e., who are actually incorporated into the armed forces, can be considered combatants," the ICRC said in its commentary of customary IHL. "Potential mobilization does not render the person concerned a combatant liable to attack."

This concept regarding potential mobilization also applies to military reservists. According to the ICRC's 2009 guide, deactivated reservists are reintegrated into civilian life and regain their protected status. Only when actually redrafted into the organized force do they become combatants. Likewise, former soldiers are not legitimate targets, having been reincorporated into the civilian population. The International Tribunal for Yugoslavia stated in its 2000 Blaskic ruling that those no longer in armed forces are civilians.

The attacking of Israelis under the assumption that they are reservists, future or past soldiers, or armed, even if it were acceptable under IHL, would run afoul of AP I article 50.

"In case of doubt whether a person is a civilian, that person shall be considered to be a civilian," reads the provision.

While terrorism supporters suppose that Palestinian attackers are legitimate in attacking reservists and other challenged citizenry in a theoretical scenario in which they know everything about their target, they usually know nothing about them. Israeli civilians appear as any civilian would. Attacking a civilian by perception is the same as attacking a civilian. Most often, Palestinian terrorists are acting completely indiscriminately. The onus is upon Palestinian military groups to treat them as such until they are clearly identified as soldiers.

Israeli civilians are within their right to bear arms to protect themselves from attacks, and past and inactive military affiliations do not remove their protected status.