Human Shields as a Tactic of Lawfare

HUMAN SHIELDS AS A TACTIC OF LAWFARE

In 2003, Rachel Corrie, a 23 year old American activist from Olympia, Washington State, was killed when she placed her body in the path of an Israeli military bulldozer that was set to demolish a Palestinian house. She was one of eight British and American activists who were acting as human shields to protect Palestinians at the Rafah refugee camp, on the border between Egypt and the Gaza Strip. Corrie’s death attracted much media attention, and has contributed to the controversy around ‘human shielding’ in the Israeli-Palestinian conflict.



Human shielding has long been forbidden by international humanitarian law, both customary and codified. The Lieber Code, drawn up during the American Civil War explicitly forbade the use of unarmed civilians being used to physically shield targets of military value. In modern times, it is prohibited by the Geneva Conventions, and is a specific intent war crime under the Rome Statute of 1998.

Despite these clear prohibitions, in recent conflicts, the issue has reemerged as a source of controversy. The legal prohibitions in effect date from wars between uniformed militaries, where the line between noncombatants and combatants was easily defined and clear. Today, however, where asymmetric conflicts between unequal forces, such as uniformed state militaries on one hand, and irregular paramilitaries and militias on the other, have become the rule, the distinction has blurred. As the latter often rely for their very existence and coherence as fighting forces on their inextricable links with a civilian population, it may not be as straightforward as in earlier times to draw the distinction. In addition, as Corrie’s death shows, the optics or perception by international or local opinion of a situation or a military action has become part of the military and strategic calculus for both sides.

Judith Butler has called the effect of this the “weaponizing of war crimes”. In effect, both sides are able to use the idea of “human shields” as a tactical weapon, regardless of the intent of the unarmed civilians in question. For the party that employs them, it is presumed that the other side will refrain from attacking targets shielded in this manner, for fear of committing, or at least being seen to commit, a ‘war crime’. For the other side, however, the accusation that their enemy is using human shields is in itself a delegitimizing strategy that can justify using force against targets that might otherwise be seen as immune from attack.

An example of the ‘weaponising’ of charges of human shields to justify military and political action is the article by Ammon Rubinstein and Yaariv Roznai in the Stanford Review of International Law, “Human Shields in Modern Armed Conflicts: The Need for a Proportionate Proportionality”.  In this article, Roznai and Rubinstein argue that the use of human shields should be factored into any assessment of whether military force was proportionate or not. They argue, in effect, that military action that would be seen as disproportionate in most other circumstances should be legitimized if there is evidence that the party being attacked is using human shields to defend military targets. This is an example of what some have called ‘lawfare’ or in Butler’s words, ‘weaponization’ of war crimes as a legal fact.




The problems with this approach in today’s conflicts should be apparent to an unprejudiced observer. To take the conflict between Israel and Hamas in Gaza as our example, as this has provoked much of the commentary on the issue, Hamas as a movement is not a military organization detached from the civilian Palestinian population, but in addition to its military wing, is heavily involved in activities such as social work, welfare, and primary education. Separating Hamas’ military wing from the other aspects of the organization has already proved a difficult exercise. For instance, Australia, New Zealand, and the United Kingdom consider the military wing of Hamas, the Izz al-Din Qassam Brigades, to be a terrorist organization, but do not apply this to the organization as a whole.




Israel, however sees Hamas as a whole as a terrorist entity committed to the destruction of Israel, with no distinction drawn between the military arm of Hamas and its other wings. The Israeli Ministry of Foreign Affairs has stated that Hamas maintains an extensive “terrorist infrastructure” throughout the Gaza Strip. Because of the fact that the whole organization is seen as a hostile, terroristic entity, attacks on any facilities connected with Hamas could be construed in this sense as proportionate according to the laws of war. The accusation of human shielding here can be weaponized easily, for any social facility, a kindergarten or a soup kitchen for instance, if run by Hamas or organizations affiliated with them, could be argued away as an instance of human shielding.





What exacerbates this situation is the sheer population density of the Gaza Strip. With a population of around 1.85 million concentrated on a thin area of 362 sq km, Gaza is the third most densely populated self-governing entity in the world. Whether or not human shielding is occurring on a voluntary or involuntary basis in such a situation, as scholars are debating, could be an ‘academic’ question in the pejorative sense of the word. The agency of the individuals concerned may be effectively irrelevant when an organization designated as a military target not only provides much needed social welfare and assistance, but unavoidably houses its personnel, whether ‘civilian’ or ‘military’ in close proximity to noncombatant homes and shops.
















Viewed this way, one could think that the use of ‘human shields’ by Hamas may not in fact be a question of agency of the civilians in question at all. The facts on the ground have presented them with a fait accompli. The effect, therefore of accepting Roznai and Rubinstein’s argument would be adhering to the letter of the law while violating its purpose and spirit; the limitations on the use of force in armed conflict. Without the tacit enforcement of mutual reciprocity that traditionally underpinned the law of war, we can see how it too, can be co-opted as a weapon of conflict, not a limitation of its murderous dynamics.