The Law and Policy of Human Shielding

Beth Van Schaack, Lean Kaplan Visiting Professor in Human Rights, Stanford University, California.



Abstract

The phenomenon of human shields challenges many of the core tenets of IHL, including its careful dialectic between the imperatives of humanity and military necessity. Although the concepts of distinction, precaution, and proportionality are well-established in the abstract, any consensus on how these rules apply to situations involving human shields is showing signs of fraying. The IHL literature now offers competing approaches for evaluating the legal consequences surrounding the use of human shields for both the party that stands to benefit from the presence of the shields and for the party seeking to engage the military objective being shielded. In particular, the application of the rules of distinction and proportionality has become the subject of intense debate about whether human shields are entitled to the full panoply of civilian protections when it comes to targeting? This emerging legal indeterminacy is being strategically generated and increasingly deployed by a range of implicated actors and norm entrepreneurs in an effort to loosen the restrictions on targeting, to excuse civilian deaths, and to shield armed actors from legal responsibility — all to the detriment of civilian protection.


These dilemmas undergird this chapter. After distinguishing various forms of human shielding and setting out the operative legal framework in treaty and customary international law, this chapter evaluates the various legal and policy arguments that have emerged to address the phenomenon of human shielding. These arguments are grounded in theories about what it means to directly participate in hostilities, how proportionality should be calculated when human shields are present in a battlespace, and what role hostile intent as well as actual or apparent agency on the part of the shields themselves should play in targeting decisions. The chapter then recommends a way forward by concluding that the safest course for parties truly committed to the values underlying IHL is to adopt a policy that treats all human shields as civilians when it comes to the calculation of potential collateral damage, unless there is irrefutable proof of willing participation in hostilities.



Keywords: Human Shields,Terrorism, Law of War, ISIL, ISIS, Islamic State, Humanitarian Law, War Crimes, Iraq, Syria, Human Rights.


1. Introduction

The international law governing human shields is absolute: “[t]he use of human shields is prohibited.”(1) This blanket prohibition, however, is too often honored in its breach. Particularly in today’s asymmetrical conflicts,(2) the use of human shields is attractive precisely because it exploits protective legal rules to the detriment of parties that value—and thus strive for— compliance with international humanitarian law (IHL). These parties, in turn, are struggling to adapt their operations to a tactic that has become “endemic” on the modern battlefield.(3) Nowhere is this more evident today than in the fight against the Islamic State of Iraq and Syria (ISIS), as the group is now called. (4) It is well documented that ISIS groups embed themselves within the civilian infrastructure(5) and kidnap civilians to screen advancing and retreating troops,(6) all in order to complicate United States-led air strikes in Mosul(7 )and other populated areas.(8) ISIS also engages in the vicious innovation of “house-packing”—deliberately herding civilians into buildings that are used as firing positions in order to draw fire and increase the civilian death toll.(9) ISIS and other non-state actors (10) do not have a monopoly on using or taking advantage of human shields, of course, and even professional militaries have been accused of engaging in the practice for force protection and in other defensive circumstances.(11)


The phenomenon of human shields challenges many of the core tenets of IHL, including its careful dialectic between the imperatives of humanity and military necessity.(12) Although the concepts of distinction, precaution, and proportionality are well-established in the abstract, any consensus on how these rules apply to situations involving human shields is showing signs of fraying. The IHL literature now offers competing approaches for evaluating the legal consequences surrounding the use of human shields for both the party that stands to benefit from the presence of the shields (the defending or shielded party) and for the party seeking to engage the military objective being shielded (the attacking party).(13) In particular, the application of the rules of distinction and proportionality has become the subject of intense debate: Are human shields entitled to the full panoply of civilian protections when it comes to targeting? Do they add weight to the “civilian” side of the proportionality ledger when attacks are being planned and implemented? Under what circumstances, if at all, can the shields be directly targeted separate and apart from the underlying military objective? Is the “consent” of the shields at all relevant to their targetability?


This emerging legal indeterminacy is being strategically generated and increasingly deployed by a range of implicated actors and norm entrepreneurs in an effort to loosen the restrictions on targeting, to excuse civilian deaths, and to shield armed actors from legal responsibility—all to the detriment of civilian protection.14 The situation in Sri Lanka—where the government has solicited a range of “expert opinions” to excuse massive civilian deaths—offers a particularly cynical example of this rhetorical phenomenon. These opinions—since leaked to the press—reveal arguments that attempt to exonerate the government for harm to civilians in light of the use of civilians as shields by the Liberation Tigers of Tamil Eelam (LTTE).(15) Media reporting on armed conflicts reflects this incipient normative uncertainty. Advocacy groups have accused news outlets of politically-motivated reporting depending on which parties are being shielded and which parties are on the attack.(16)


These dilemmas undergird this chapter. After distinguishing various forms of human shielding and setting out the operative legal framework in treaty and customary international law (CIL), this chapter evaluates the various legal and policy arguments that have emerged to address the phenomenon of human shielding. These arguments are grounded in theories about what it means to directly participate in hostilities, how proportionality should be calculated when human shields are present in a battlespace, and what role hostile intent as well as actual or apparent agency on the part of the shields themselves should play in targeting decisions. The chapter then recommends a way forward by concluding that the safest course for parties truly committed to the values underlying IHL is to adopt a policy that treats all human shields as civilians when it comes to the calculation of potential collateral damage, unless there is irrefutable proof of willing participation in hostilities.



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Suggested Citation:

Van Schaack, Beth, The Law & Policy of Human Shielding (September 10, 2017). Forthcoming Lieber Institute for Law and Land Warfare Book Series: "Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare" edited by Christopher M. Ford and Winston S. Williams, 2018.. Available at SSRN: https://ssrn.com/abstract=3099927

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© 2017 by Talking About Terrorism.