A chink in the armor: how a uniform approach to proportionality analysis can end the use of human shields.

• Author: Artz, Margaret T.

ABSTRACT

The appropriate response to human shields is a recurring issue in modern warfare. Technological asymmetry, disparate obligations, and doctrinal divergence between state and nonstate adversaries combine to make civilians account for 84 percent of combat deaths. Just as a slot machine entices a gambler though he rarely wins, the international community's inconsistent response to human shields has placed shield users on an intermittent reinforcement schedule, thereby ensuring that this tactic remains part of insurgent strategy. Long-term protection of civilians requires eliminating this tactic. Principles of behavior science indicate that an effective way to do so is to uniformly remove its desired consequence--combatants must never allow the presence of shields to impede access to the shielded military objective. This approach is supported by a broader, more forward-thinking conception of the principle of proportionality as reflected in current treaty and customary international law.

TABLE OF CONTENTS I. INTRODUCTION II. THE CODIFICATION OF PROTECTION FOR CIVILIANS IN LAW A. The Lieber Code B. Total War and the Geneva Conventions C. The Vietnam War and the Additional Protocols to the Geneva Conventions i. Additional Protocol I on Proportionality ii. Additional Protocol I on Human Shields III. THE DIVERSE DEMOGRAPHICS OF HUMAN SHIELDS A. Voluntary vs. Involuntary Shields B. Systematic vs. Isolated Use of Shields IV. WHY BELLIGERENTS USE HUMAN SHIELDS A. Factor One: Technological Asymmetry i. Effects of Technological Superiority on the Advantaged Side ii. Effects of Technological Inferiority on the Disadvantaged Side B. Factor Two: Diversity of Obligations and Restraints C. Factor Three: Doctrinal Divergence V. TWO PERSPECTIVES ON HOW HUMAN SHIELDS FACTOR INTO PROPORTIONALITY ANALYSIS A. The Human Rights Model B. The Humanitarian Model C. The Result of Two Approaches: Gambling on Human Shields VI. HOW TO END THE USE OF HUMAN SHIELDS: A UNIFORM APPROACH A. The Human Rights Approach Risks Legitimizing Shield Use as a Tactic B. The Humanitarian Approach Is Supported by International Law and Most Effectively Protects Civilians C. The Costs of This Choice D. How the Transition Can Be Made Easier VII. CONCLUSION I. INTRODUCTION

A recent UN report described an instance in which members of the Syrian Armed Forces (SAF) forced children to stand at the windows of a bus transporting military personnel to a raid on their village, thereby shielding SAF fighters from attack by the children's families and neighbors. (1) Syrian government forces have used close proximity to civilians as a strategy to deter enemies throughout the conflict. (2) The SAF have established operational centers in hospitals and even erected gun embankments on schoolhouse roofs while students study below. (3) Though clearly unlawful, such instances are not unusual. The rate of civilian casualties in conflict has steadily increased since World War I, (4) and human shields have become an abundant and effective weapon favored in today's asymmetric conflicts.

Two perspectives prevail on how human shields should factor into the proportionality analysis that military decision makers use to balance the anticipated military advantage and collateral damage that a particular operation will yield. The first approach, heavily influenced by human rights law, subscribes to a narrow understanding of proportionality analysis in which collateral damage outweighs a potential military advantage the vast majority of the time. (5) The second approach, rooted in humanitarian law, conceives of proportionality more broadly. In this calculation, other considerations like the sovereign right of self-defense and safety of soldiers on the ground add greater heft to the military-advantage side of the proportionality scale. (6) Which approach is lawful or even the most humane remains unclear in the international realm. States that subscribe to the former approach are more likely to allow the presence of human shields to deter their operations, whereas states that subscribe to the latter are more likely to pursue a valuable military objective despite the presence of human shields. Even within a single country, the response to human shields may vary. It is this inconsistency that ensures this tactic remains a prevalent part of insurgent strategy.

This Note applies the rule of intermittent reinforcement, a tenet of behavior science, to the use of human shields in conflict. Just as a slot machine entices a gambler though he rarely wins, the international community's inconsistent response to human shields has placed shield users on an intermittent reinforcement schedule, thereby creating a persistent and durable behavior. In order to change this behavior, actors who face human shields must respond consistently every time. And given the options (deterrence in the presence of human shields or pursuit of the military objective 100 percent of the time), the latter is the only option that disables human-shield use as a functional behavior and effective strategy. Therefore, this Note suggests that the international community should adopt a broad understanding of proportionality analysis that allows attacking forces to achieve their military objective despite the presence of human shields. If this approach is pursued uniformly, it will extinguish the use of shields as an effective tactic, thereby increasing compliance with international humanitarian law principles and reaffirming the overarching premise of international humanitarian law to protect the right to life.

Part I provides a brief history of the codification of civilian immunity in law. Part II describes the diverse demographics of civilians used as human shields. Part III explores the three facets of modern, asymmetric conflict that have made the use of human shields a prevalent tactic amongst insurgents and disadvantaged belligerents. Part IV describes the two perspectives that inform how human shields factor into proportionality analysis. Finally, Part V offers a uniform approach to remove human-shield use from an intermittent reinforcement schedule, thereby removing its function as an effective strategy in conflict.

2. THE CODIFICATION OF PROTECTION FOR CIVILIANS IN LAW

   The earliest normative codes of conduct carved out an area of special treatment for civilians in war. Greek forces over 2,500 years ago adopted rules of engagement that specifically referred to civilian immunity. (7) Such early restrictions on combatants were based on pragmatism rather than humanitarian concerns. (8) They were developed to ensure that the fruits of conquest and the labor to maintain them remained after the conflict ended; land sown with salt was of little value to the victors. (9) Yet, despite the existence of these norms, adherence to them has historically been inconsistent. In fact, military thinkers at many points in history have actively advocated targeting civilians as an effective tactic for hurting the morale of an opponent. (10) This Part charts the creation of legal protections for civilians in combat, drawing on recent conflicts that put civilians in jeopardy and the current codification of civilian immunity in international humanitarian law.

   1. The Lieber Code

      During the nineteenth century, in response to an inconsistent history regarding the treatment of civilians in conflict, a greater concern with humanitarian issues began to shape the law of armed conflict (LOAC). Compliance with civilian immunity norms slowly increased to better protect the most vulnerable class of participants in conflict. (11) During the Civil War, the United States adopted the first comprehensive code of conduct for land warfare, Army General Order No. 100. (12) The General in Chief of the Union was troubled by the uncertainty that his forces and the adversary expressed with respect to the treatment of combatants and noncombatants. (13) He asked Dr. Francis Lieber, a leading law professor, to define guerilla warfare. (14) Dr. Lieber created the first detailed code of military discipline in an effort to identify the boundaries of lawful conduct in war and "strike a balance between the demands of military necessity and principles of humanity." (15) One of the Lieber Code's most basic elements, which states that protection under the LOAC is based on status (combatant or civilian) and is lost if one acts beyond the limits of prescribed behavior for that status, remains a fundamental aspect of the LOAC. (16)

      The Lieber Code proscribed targeting of civilians and civilian objects. (17) It also articulated a version of the principle of proportionality, a tenet of the LOAC that has come to be integrally tied with the use of human shields, in this fashion: "The unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit." (18) Thus, the Lieber Code articulated the era's approach towards civilians--they were not to be targeted directly but were not immune in all circumstances. (19)

      The Lieber Code influenced later international treaties that further codified protection for civilians. (20) Foreign states issued similar codes and, later, more comprehensive military manuals that emphasized the vital importance of "behavioral norms" amongst all levels of military actors. (21) The Second Hague Peace Conference of 1907 reiterated the rule of civilian immunity and included a provision on civilian objects. (22) It also included a prohibition on attacks of undefended towns and dwellings. (23) Thus, the Conference marked the beginning of a regime that distinguished "the military significance of a target from its civilian purpose" (24) and acknowledged the issue of dual-use facilities to support both military operations and civilian activities. (25)

   2. Total War and the Geneva Conventions

      The evolution of international humanitarian law (IHL) protections for civilians in conflict stalled with the doctrine of "total war"...