Human shields in modern armed conflicts: the need for a proportionate proportionality.

• Author: Rubinstein, Amnon

It would not be right ... 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. Humanity. rather than legality, must be our guide.

--Winston S. Churchill

INTRODUCTION

The use of civilians as human shields during hostilities has become one of the major problems facing democracies in contemporary armed conflicts. As the modern battlefield has moved from the front, where armies clash, to populated urban environments in which civilians' involvement in hostilities has been dramatically augmented, so, too, the use of human shields has dramatically escalated. Indeed, the use of civilians as human shields during armed conflicts has become an important weapon in waging a new type of warfare that relies on the belligerent's observance of international law.

This Article asserts that, despite their growing importance, these occurrences are not given the attention they deserve from the international community. Moreover, in our view, the existing application--by some international community members--of the laws of war regarding the use of civilians as human shields in armed conflicts leads to absurd and harmful results, with major theoretical and practical implications for Western and American defense policy makers.

Part I of the Article reviews the issue of human shields in modern armed conflicts. Part II reviews the international laws of armed conflict governing the practice of using civilians as human shields. Part III discusses the challenges we find most disturbing in this context: the current law and its application have become incompatible with modern warfare and place civilians in further peril. Part IV outlines our proposal for a modern application and interpretation of the laws of war that might resolve the problems raised in Part III. Part V concludes with a summary.

1. HUMAN SHIELDS IN MODERN ARMED CONFLICT

   1. The Exploitation of Civilians in Asymmetric Warfare

      The modern battlefield has moved from the front to populated urban environments, thereby dramatically increasing civilian involvement in hostilities. The urban environment, along with the deployment of lethal modern weaponry systems, has significantly augmented civilian casualties. (1) One implication of this battlefield urbanization is the increasing use of the civilian population as human shields during armed conflicts in order to exploit the belligerent's adherence to International Humanitarian Law (IHL) norms. (2)

      The term "human shields" describes:

      "[T]he intentional use of a party to a conflict of one or more human beings, usually civilians, or captured members of the adversary's forces ... placed between the adversary and themselves in a way meant to deter an attack against the forces using the human shields, for fear of killing or harming the unarmed shields. The shields are in effect hostages used for strategic purposes." (3)

      In modern asymmetric warfare, due to the inability of weaker forces to protect military objectives with conventional methods against superior forces, the weaker forces seek to neutralize their enemies' superiority (technological or numerical) by, inter alia, exploiting civilian populations. Why is this tactic attractive and popular? First, the attacking party--which, for accuracy's sake, we shall term throughout this Article the "impeded party"--might refrain from attacking due to moral or legal constraints regarding harm to civilians. (4) The presence of a large number of civilians who might be harmed can make the impeded party's use of force excessive relative to its anticipated military advantage and thus disproportionate and prohibited under IHL. Second, if an attack is launched despite the presence of human shields, the attacked party--sometimes described as "the weaker party" or the "defending party" and which we shall term "the shielding party"--can weaken international and domestic support for the impeded party's war efforts by exploiting the harmed civilians for the purpose of creating negative propaganda in the media. Indeed, regardless of the legal question as to whether the impeded party violated the laws of war, the mere fact and images of civilian casualties are beneficial to the shielding party's war efforts, because in the public mindset, any harm to civilians is seen as evidence of disproportionality. (5) Consequently, the use of civilians as shields can either deter the impeded party from targeting its enemy or, alternatively, compel it to violate jus in bello, the laws which govern the conduct of hostilities during an armed conflict. (6) The human shields tactic is therefore "a successful means to gain advantages militarily and in the court of public opinion." (7)

   2. The Use of Civilians as Human Shields in Armed Conflicts

      The use of civilians as human shields is not novel. (8) Evidence of the practice dates back to the American Civil War (9) and the Second World War. (10) The practice has also been documented in the Korean Conflict and the Vietnam War. (11) United Nations (U.N.) peacekeeping forces similarly faced attacks from weapon systems placed within civilian areas or hostile forces that used civilians as human shields, for example, in Beirut in the early 1980s and Somalia in the early 1990s. (12) The human shields tactic was also employed by Saddam Hussein's Iraq in many of its conflicts. (13) Fascinatingly, during Operation Iraqi Freedom, a large number of peace activists from around the world travelled to Iraq to serve as human shields against American and British attacks. (14) The use of civilians as human shields has been employed worldwide in both international and non-international armed conflicts, (15) including in Sierra Leone, (16) during the Bosnian War, (17) in Kosovo, (18) in Cambodia, (19) and, as reported, in the recent conflict in Libya. (20) In recent years, facing superior adversaries, terrorist organizations, such as Hezbollah, (21) Taliban, (22) and Hamas, (23) have also adopted the human shields tactic. The use of civilians as human shields, as a leader of Hamas had previously confirmed, is an essential tactic of Hamas in its armed confrontations with Israel. (24)

      The recent Israeli Operation Cast Lead in Gaza and the subsequent Report of the United Nations Fact Finding Mission on the Gaza Conflict submitted to the U.N. Human Rights Council (HRC) by the Goldstone Commission (the Goldstone Report) has exacerbated this debate. Israel claims that despite its efforts to avoid harming civilians throughout its offensive, Hamas fighters--sheltered in the midst of the civilian population and without any distinctive wear from civilians--fired mortars and launched rockets from occupied civilian buildings and civilian surroundings. Moreover, Israel alleges that Hamas took advantage of Israel's early warnings of imminent attacks on targets in order to call upon civilians to voluntarily shelter the targets as human shields in order to prevent the attacks. (25) Hamas's use of human shields was consistently invoked by Israel in order to explain the high rate of Palestinian civilian casualties. Hamas responded that it had no option but to fight in densely populated centers, since the Gaza Strip was sealed off by Israel. (26) Furthermore, Hamas accused Israeli soldiers of using Palestinian men as human shields by forcing them to carry out hazardous military tasks. (27)

      It is clear that the use of civilians as human shields is a concrete and burning issue in contemporary armed conflicts

2. HUMAN SHIELDS IN THE LAWS OF ARMED CONFLICT

   1. General Principles of IHL

      The core of IHL consists of four cardinal principles: distinction, military necessity, unnecessary suffering, and proportionality. (28) We shall focus our attention on distinction and proportionality.

      The principle of distinction generally demands that any party to a conflict distinguish between those who are fighting and those who are not. (29) Solely the former can be attacked. Likewise, parties must distinguish between civilian and military objects. Solely the latter can be targeted. (30) Civilians enjoy a general protection (31) and shall not be the object of attack. (32) Accordingly, "[i]ndiscriminate attacks are prohibited." (33) Violations of the principle of distinction constitute grave breaches of the Additional Protocols to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (34) and are considered war crimes. (35) The principle of distinction is essential for protecting innocent civilians and hors de combat, those who are unable to further participate in the fighting due to injury, and is considered customary international law governing both international and non-international armed conflicts. (36) It should be clear, however, that when protected objects are used for military functions by a party to an armed conflict those objects become legitimate military targets. (37) By the same token, those civilians taking a direct and active part in hostilities cease to enjoy their protection so long as they are engaged in military functions. (38)

      There is no absolute prohibition against civilian casualties because IHL tolerates some civilian casualties during a military action. (39) The desired equilibrium between considerations of humanity and military necessity is expressed by the principle of proportionality which prohibits any "attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." (40) Therefore, even with regard to a lawful attack on a military objective, the principle of proportionality entails a duty on the military commander to assess the attack's collateral damage (i.e., civilian casualties or damage to civilian objects), and to consider it...