Human Shields as Unlawful Lawfare

The recurring problem of human shields is one of the most difficult challenges in modern asymmetric warfare. It represents a potent example of lawfare insofar as a defending state or organization forces a false choice upon a military force that wishes to apply the laws and customs of warfare in good faith. Much like the war crime of perfidy[i] by which one side attempts to achieve a military advantage by exploiting the adversary’s good faith compliance with the laws of warfare, human shields force a tension between competing core assumptions of humanitarian law. War-fighters have the lawful right to seek military advantage by attacking lawful military objectives using lawful weapons and techniques. On the other, the humanitarian imperatives remain that civilians should be shielded from the effects of hostilities to the greatest degree possible. Former U.S. Secretary of Defense Robert Gates noted that “the “principal strategic tactic of the Taliban . . . is either provoking or exploiting civilian casualties.” ^[ii] The intentional use of human shields is a war crime and yet represents a potent form of lawfare because the globalized media can be misused to mask genuine violations of the law with spurious allegations and misrepresentations of the actual state of the law. Vattel pointed out the principle that “the law of nature… does not favor oppressors.” [iii] Parties that abuse the law through the use of human shields should be severely sanctioned. Law of armed conflict principles should not be distorted to incentivize choices that intentionally increase the human costs of conflicts.

Some Selected Examples

All forms of human shields are “artificial” in the sense that a contrived situation has been constructed in such a way that a party must decide between two unappealing prospects that would not be the only options but for the addition of the human shields. The classic example of voluntary human shields was civilians that flocked onto the bridges in Belgrade during the 78- day NATO air campaign against the Milosevic regime. In that context, the NATO Commander was adamant that “no responsible commander wishes to kill civilians… Every day we did our very, very best to limit collateral damage and limit the loss of life on the adversary’s side.”[iv] Human shields force a choice upon the party that needs to pursue the military target. It is true that voluntary human shields seek to assist the military efforts of one of the belligerent states, but absent evidence of coercion or state coordination it is difficult to directly attribute their actions to the responsibility of the belligerent state.

Involuntary human shields represent the more common and more criminal abuse of the law. When Saddam Hussein abducted foreign nationals and placed them in the vicinity of military objectives during the First Gulf War in August 1990, the fact that he termed them “special guests” in no way changed the illegality of his actions, which the UN Security Council unanimously condemned.[v] There is now overwhelming evidence that Hamas has used civilian houses, schools, and other protected places in the Gaza Strip to launch indiscriminate rocket attacks into Israel.

The State of the Law is Clear

In the ICRC Customary International Humanitarian Law study, the settled view is simply that “The use of human shields is prohibited.” The definition given is also illustrative:

the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with specific intent of trying to prevent the targeting of those military objectives.[vi]

The Study lists a large number of treaties and military manuals of States as supporting this rule, with the following summation: “No official contrary practice was found.”[vii] In other words, no nation on earth supports the assertion that civilians may lawfully be used to shelter military objectives. One might well imagine the emergence of an affirmative duty imposed upon state actors and agencies to prevent voluntary human shields from getting close to military objectives based on the strength of the prohibitions on human shields in areas under where they exercise effective control. To date, there is no such affirmative burden embedded in law or in existing state practice, but such a duty along these lines would be wholly in keeping with human rights principles and the foundations of the laws and customs of warfare.

The Von Leeb Case (The High Command Trial) in 1948 prosecuted Hermann Hoth, inter alia, for the crime of ill treatment of prisoners of war by using them as human shields.[viii] Several provisions of the 1949 Geneva Conventions prohibit any uses of prisoners of war[ix] or protected civilians[x] as human shields in order to seek military advantage. Read as literal textual admonitions, these articles mean that even when a defender abuses the status of otherwise protected prisoners of war or civilians to leverage an undeserved military advantage the military objective is not thereby made “immune from military operations.” The public perception shaped by the media is far different. Article 51(7) of Additional Protocol I to the Geneva Conventions of 1977 clarifies that

The 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, favor or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

The status of human shields as war crimes is specifically addressed in the Rome Statute in Article 8(2)(b), where war crimes during international armed conflicts include:

(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

Though international law recognizes that the use of involuntary human shields is prohibited, very few sources discuss voluntary human shields. At the same time, there is also near unanimity that proportionality requires States not to attack military objectives if the likely loss of civilian life clearly outweighs the anticipated value of the military objective. Therein lies the power of human shields as a form of lawfare. As the British Manual of the Law of Armed Conflict makes clear, even when the enemy [xi] puts civilians or civilian objects at risk by placing military objectives in their midst or by placing civilians near the military objectives, this “would not relieve an 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.”

Voluntary and Involuntary Human Shields

Voluntary human shields, even though they do not wear uniforms, carry guns openly, or follow a chain of command, seem to have chosen directly to participate in the war effort. Indeed, by placing themselves in the line of fire, voluntary human shields move onto the battlefield and even directly to the precise point where the effects of hostilities are anticipated. In fact, it might well be argued that the voluntary human shield is acting immorally by seeking to gain a military advantage at some point, then return to home and hearth at another with a presumable expectation of protection from the effects of hostilities. It is true that once they are on the battlefield they are passive rather than active, but they intend to affect the war by their passivity, and the passivity is often even more efficacious than those soldiers who are carrying weapons and are actively ready to fire them. The NATO Air Commander during the Kosovo campaign noted that despite the best efforts of the coalition, every time civilians were killed in air strikes “the reaction by political leaders was hysterical.”[xii] Though they may look like civilians to the cameras of a curious media, voluntary human shields seem to come as close to being combatants as one can get, in terms of the effects of what they do, and still not wear uniforms or carry weapons openly. It would thus be inconsistent with the broader legal and moral principles to reward such intentional misconduct by requiring the attacker to ignore the changed role of the otherwise protected civilians.

To be a voluntary human shield a person must intentionally seek to put her or himself in between a likely attack and a military target. This epitomizes the essence of the principle from Article 51(3) of Protocol I that civilians “shall enjoy the protection afforded” by the laws and customs of war “unless and for such time as they take a direct part in hostilities.” Indeed, the temporal caveat in Protocol I that such civilians may be targeted “for such time as” they participate in hostilities seems particularly apropos to the human shields that forsake the safety of their homes in order to intentionally endanger their safety in an effort to serve the military interests of a party to the conflict. The voluntary human shield has done something active to become a “shield” even though the very act of shielding a military target is defined by inactivity, i.e. simple presence suffices.

Adjusting our Understandings to Prevent Effective Lawfare

The traditional legal regime was generally framed without consideration of the problem of voluntary human shields. When the application of these rules results in greater risk of suffering by civilians and soldiers something has gone awry and the rules need to be adjusted. The principle of discrimination or distinction is supposed to reduce greatly the suffering of civilians by prohibiting that they be intentionally targeted during battle.

The humanitarian concerns of innocent civilians ought to be equally shared by all parties to the conflict at all times. In technical, but often overlooked terms, this principle is reflected in Article 49(1) of Protocol I, by which the term “attacks” is defined as “acts of violence against the adversary, whether in offence or in defence.” An extension of the Vattelian principle against favoring oppressors would say that adjustments need to be made in the application of the principles of proportionality and discrimination or distinction so that wrongdoers and those who assume risks for themselves are not unduly favored. In psychological terms, if an enemy attacks a military target even when human shields have been forced to remain in the face of warnings, an attack would be seen as a form of positive punishment designed to end the unwanted behavior.

One adjustment in the rules or laws of war that would seem to make sense given the analysis provided so far would be to lift the civilian immunity for any civilians who are in the act of serving as voluntary human shields. It seems appropriate to regulate human shields under the law in the manner they conceive of their own role in the hostilities. In fact, just as combatants can regain legal protections from being targeted by relinquishing their combatant status, so too voluntary human shields can regain their protected status by returning to their homes and avoiding known military objectives. Just as they chose to participate directly in the hostilities by seeking a military advantage for the benefit of one party to the hostilities, they have perfect freedom to reclaim the protections that accrue to innocent civilians who remain neutral in the sense that they do not strive to directly gain military advantage for either party to the conflict. In that sense, civilians are innocent and fully protected from the deliberate conduct of both parties as we have observed. The main rationale here is that voluntary human shields are now operating much more like combatants than standard innocent civilians. In addition, they have assumed the risk by their voluntary actions. Continuing to provide voluntary human shields with civilian immunity seems to be not in keeping with their own behavior which has changed their status at least in the eyes of these civilians themselves. Suspending the immunity of voluntary human shields “for such time” as they are protecting military objectives with their bodies would comport perfectly with Article 51(3). And this adjustment would hopefully deter such behavior in the future, thereby actually serving to preserve human rights and dignity in the long term. It would also have the virtue of eliminating the effectiveness of this form of lawfare.

What of involuntary human shields? The killing of involuntary human shields cannot be treated merely as acceptable collateral damage in all circumstances. The U.S. Joint Targeting Manual adopts this approach by recognizing that while an enemy cannot lawfully “use civilians as human shields in an attempt to protect, conceal, or render military objects immune from military operations or force them to leave their homes or shelters to disrupt the movement of an adversary” the principle of proportionality nevertheless remains fully applicable in its conventional application (i.e. permitting attacks unless the collateral damage is clearly excessive in relation to the concrete and direct overall military advantage anticipated). Warfighters need to be transparent in communicating the value of military targets to the media and public. The responsibility for any civilian deaths that occur as the result of lawful attacks on lawful military targets ought to be squarely placed at the feet of the party that held those civilians against their will. Lawful attacks on targets (in the sense that they are directed against the military target and meet the proportionality determination) are lawful attacks. In psychological terms, one should avoid positive reinforcement of otherwise disfavored activities. Human shields represent an important point of friction for the various protections of humanitarian law, and permitting civilian protections to be warped into a successful form of lawfare undermine the careful compromises that keep the whole body of law alive and relevant.

 [i] Protocol I, Article 37; Jean-Marie Henckaerts, Louise Doswald-Beck, Customary international humanitarian law Vol 1: Rules (Cambridge University Press 2005), Rule 65, available at http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule65.

 

[ii] Secretary of Defense Robert Gates -- Press Conference, Secretary of Defense Robert Gates & Chairman, Joint Chiefs of Staff Michael Mullen, Leadership Changes in Afghanistan (transcript), DEFENSELINK (May 11, 2009), external pagehttp://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=4424call_made

[iii] Emir de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle (The Law of Nations or the Principles of Natural Law) (1758), translated by Charles G. Fenwick, Washington: Carnegie Institution, 1916, p., 357.

[iv] Lieutenant General Michael Short, Operation Allied Force From the Perspective of the NATO Air Commander, in Legal and Ethical Lessons of Nato’s Kosovo Campaign, 78 Naval War Col. Int’l. L. Stud. 19, 23 (Andru Wall ed., 2002).

[v] See UN. Sec. Council Resolution 664 (Aug 18, 1990). Available at http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/664(1990)

[vi] Jean-Marie Henckaerts, Louise Doswald-Beck, Customary international humanitarian law Vol 1: Rules (Cambridge University Press 2005), Rule 97, available at http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule97 http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule97.

[vii] Id .

[viii] US Military Tribunal Nuremberg, Judgment of 27 October 1948, in Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Vol. XII The German High Command Trial, London: United Nations War Crimes Commission, 1949, pp. 104-105.

[ix] Third Geneva Convention, Article 23, “ No prisoner of war may at any time be sent to, or detained in, areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.”

[x] Article 28 of the Fourth Geneva Convention Relative to the protection of Civilian Persons in Time of War mandates that the “presence of a protected person may not be used to render certain points or areas immune from military operations.”

[xi] The Manual of the Law of Armed Conflict , UK Ministry of Defence, Oxford University Press, Oxford, 2004), p. 67, ¶ 5.22.1

[xii] Lieutenant General Michael Short, Operation Allied Force From the Perspective of the NATO Air Commander, in Legal and Ethical Lessons of Nato’s Kosovo Campaign, 78 Naval War Col. Int’l. L. Stud. 19, 23 (Andru Wall ed., 2002).