Human shields: Back to reality

The current rules and their application have allowed the blatant use of human shields to successfully tie both hands of a democratic state by preventing it from defending itself.

By AMNON RUBINSTEIN, YANIV ROZNAI
Libya explosion 311 (photo credit: REUTERS)
Libya explosion 311
(photo credit: REUTERS)
The recent outcry about civilian casualties as a result of NATO bombings in Libya and constant complaints about “collateral damage” in the war in Afghanistan, as well as the Goldstone Report, have raised afresh a subject that has become the most burning issue of International Humanitarian Law (IHL). Indeed, the use of civilians as human shields during hostilities has become a major problem facing all democracies – and primarily Israel – in contemporary armed conflicts.
Human shields have been employed worldwide in both international and non-international armed conflicts, including the recent conflicts in Afghanistan, Iraq, Gaza, Lebanon and Libya. Fighting from within densely populated areas and using the civilian population as a protective umbrella has turned, in reality, into a routine combat tactic for irregular armed groups.
The use of human shields is a popular tactic because it can either impede a party from targeting its enemy due to moral or legal constraints or, alternatively, compel it – at least under the prevailing interpretation – to violate international humanitarian law. Moreover, if an attack is launched despite the presence of human shields, the shielding party can, and often does, weaken the support for its enemy by exploiting the harmed civilians as a means of propaganda in the media.
While the prohibition against using civilians as human shields is widely acknowledged under IHL, the current law and its application have become incompatible with modern warfare and lead to undesirable results.
The first notable problem is that in recent conflicts, including in Operation Cast Lead, the strongest criticism of IHL violations has been directed at the counter- attacking party, usually an army of a democratic state, rather than the parties that utilized civilians in order to shield themselves, usually forces of a non-democratic state or irregular organizations such as al-Qaida or Hamas. This relative lack of response – as exemplified by the Goldstone Report – renders the prohibition merely theoretical. The counterattackers are vilified; the shielders are ignored or even exonerated.
The second problem is that the current application of the law encourages the belligerent to use human shields against military counter-attacks. According to IHL as generally interpreted, even if a party to a conflict attacks while illegally shielding itself with civilians, the counter-attacking party must still take the usual precautions against harming civilians, which may nullify the purpose of its offensive. This leads directly to unfortunate results, since under the principle of proportionality (i.e., the assessment of whether collateral damage is excessive in relation to the anticipated specific and direct military advantage), the flagrant use of human shields can effectively prevent an attack on a legitimate enemy target.
THE CURRENT accepted rules serve to benefit those parties willing to utilize civilian casualties to achieve military advantages. In order to curtail the use of this dreadful tactic, some modification of the interpretation of IHL is critical.
We propose a twofold solution.
First, the shielding party’s obligations must be treated more seriously. As opposed to the current atmosphere, the international community, NGOs and the global media must direct their monitoring and condemnation also toward those shielding parties. Additionally it ought to be clarified that both parties will be held accountable for criminal IHL violations arising from any use of human shields, and also that international tribunals will adopt a strong and balanced stance against such crimes.
Second, with regard to the counterattacking party’s obligations, a structural change in the application of the proportionality principle is required in order to cope with the realities of asymmetrical wars. The proportionality assessment cannot be detached from the shielding party’s actions and ought to take into account the incentive to illegally use human shields.

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Thus we propose that the proportionality assessment must be adjusted when the use of human shields is part of a widespread or systematic policy, or when the military objective protected by human shields poses a clear and present danger to the adversary troops or population.
Regarding those military objects – such as guns or rocket launchers – proportionality should mean that any degree of force that suffices to silence the enemy fire would fall under the proportionality principle, unless it is shown that this purpose could have been achieved by alternative means, less costly in terms of incidental harm to civilians. Otherwise, we would eliminate the principle of selfdefense during battle – a step that would, in effect, eviscerate the conceptual foundation of the laws of war.
These adjustments would deprive human-shield-users of their current advantages, ultimately enhancing civilian protection during armed conflicts.
The current international law as applied not only increases the risk to innocent civilians, but also jeopardizes the credibility of the laws of war. “It would not be right,” Winston Churchill wrote, “that the Aggressor Power should gain one set of advantages by tearing up all laws, and another set by sheltering behind the innate respect for law of its opponents.”
The international community’s focus must be readjusted to reality. Nowadays, the values have been reversed. The democratic states defending themselves have found themselves under relentless criticism, while there is an almost complete lack of attention to the parties that originally violate IHL by intentionally jeopardizing civilians in order to achieve military benefits. This attitude creates a danger for all those who cherish human rights and democratic principles.
Moreover, the IHL rule of proportionality must be given a realistic interpretation. A “proportionate proportionality” must be introduced. We accept the limitation that when facing war or terrorism, the democratic state “must often fight with one hand tied behind its back” – as Justice Aharon Barak has put it. However, the current rules and their application have allowed the blatant use of human shields to successfully tie both hands of a democratic state by preventing it from defending itself.
Amnon Rubinstein is a professor of law at the Interdisciplinary Center, Herzliya, a former minister of education and Knesset member, and the recipient of the 2006 Israel Prize in Law. www.amnonrubinstein.org.

Yaniv Roznai is a PhD candidate at the London School of Economics (LSE).