Some back-in-forth in the comments section yesterday got me digging a bit more into an area of the laws of armed conflict that we don’t focus on much in our school’s curriculum: hiding behind non-combatants as “human shields” to either dissuade an enemy attack or make it much more costly in the court of public opinion. The only sources I’ve encountered who argue Hamas is not doing this are, frankly, not credible. But, while the Israeli leadership cites this tactic to argue that Hamas is therefore responsible for the civilian death toll, that’s not quite right, either.
Claire Finkelstein and Joseph Votel, director of the Center for Ethics and the Rule of Law at the University of Pennsylvania and former head of US Special Operations Command, respectively, think the case is crystal clear. Writing at Just Security in January (“Why the ICJ Ruling Misses the Mark: Mitigating Civilian Harm With An Enemy Engaged in Human Shielding“):
Any appearance that Israel is actually targeting civilians stems in significant part from the fact that Hamas is using Palestinian civilians as human shields in myriad ways. Hamas’ extensive tunnel system, for example, shows a subterranean terror network constructed directly underneath Gaza’s civilian infrastructure. Hamas built the tunnel system this way intentionally in order to use hospitals, schools, mosques, refugee camps, and other sites of civilian life as cover for its operations, as well as for protection in the hope of exploiting Israeli hesitancy to strike civilian targets and to galvanize public sentiment when Israel does strike. And it has been widely reported that Hamas discouraged or prevented Palestinians from relocating to safety on numerous occasions in the face of Israeli warnings of impending strikes.
[…]
The challenge Israel faces is considerable: mitigating civilian harm in the face of extensive human shielding practices, including Hamas’s elaborate tunnel system, is a near-impossible task. And Hamas knows this. Every time Israel engages in restraint because of the presence of civilians is a win for Hamas, but every time Israel regrettably kills or harms a civilian as part of collateral damage is an even greater win for Hamas, given its objectives in the information space.
[…]
[B]y shielding its fighters deep under civilian infrastructure, where IDF forces cannot or dare not penetrate and ordinary weaponry does not make a dent, Hamas has (intentionally) created a situation where Israel can defend itself only if it uses heavy enough explosives to destroy the tunnel infrastructure. This set up increases the amount of collateral damage relative to military advantage. In other words, a greater number of civilians would be endangered in order to eliminate the same number of Hamas fighters, thus increasing the ratio of civilian to combatant casualty — posing a profound strategic dilemma for Israel.
Since a 2001 essay by Charles Dunlap, the term “Lawfare” has been used for dilemmas such as that faced by Israel in Gaza, namely the use of law as a weapon of war to achieve military aims not directly won through battle.
Michael N. Schmitt, Professor of Public International Law at the University of Reading and the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point, takes a somewhat more nuanced view in a November 2023 essay (“What Is and Is Not Human Shielding?“):
[U]nder international law, the fact of operating in a manner that places the civilian population at risk does not, standing alone, amount to the use of human shields. This post accordingly seeks to clarify the legal meaning of the notion. It begins with a basic catalog of the law of armed conflict (LOAC) and international criminal law rules regarding human shields. The status of these rules is relatively uncontroversial, and the prohibition on using human shields plainly applies in Gaza. However, in application, they are often misunderstood and, in some regards, controversial.
[…]
Provisions in numerous LOAC treaties ban the use of human shields. With respect to international armed conflict, Article 23 of the 1949 Geneva Convention III prohibits using prisoners of war to “render certain points or areas immune from military operations.” Geneva Convention IV, Article 28, performs the same function for “protected persons,” a term that refers to those “who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” (art. 4).
The 1977 Additional Protocol I to the 1949 Geneva Conventions likewise forbids the practice. Article 12 bans the use of medical units as shields. However, the most significant and well-known prohibition appears in Article 51(7), which extends to all civilians, not just those who qualify as “protected persons.”
[…]
There is no comparable treaty provision for non-international armed conflict. However, Common Article 3 to the 1949 Geneva Conventions, which applies in such conflicts, provides, “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely.” Subjecting individuals to use as human shields is, in my opinion, encompassed in the notion of inhumane treatment. Similarly, Article 13 of Additional Protocol II to the 1949 Geneva Conventions, applicable in certain non-international armed conflicts for parties to the instrument, similarly provides that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” Using human shields would subject them to such dangers and, therefore, be forbidden by the instrument.
[…]
There is no violation of the prohibition on human shielding absent an intention to use the protected persons to shield against the enemy’s attack or otherwise impede its operations. As the DoD Law of War Manual notes, “In the absence of purposeful action to put protected persons and objects at risk of harm from enemy military operations, there would be no violation” (§ 5.16.2). Indeed, in many situations, operating near civilians may be unavoidable, especially during urban operations like those in Gaza City. But operating in their vicinity or bringing protected persons into military objectives in the hope that the enemy’s operations will be affected is a flagrant violation.
It should be emphasized that LOAC prohibits human shielding irrespective of whether the shields are harmed, or the shielding affects the enemy’s operations. The violation lies in their mere use for the intended purpose. Moreover, the requisite intention includes both shielding and impeding. To illustrate, placing a rocket launcher in a heavily populated residential area with the intent that the presence of civilians will protect it from attack is shielding. Directing civilians to move down a road that the enemy needs to travel on in order to impede that movement likewise violates the prohibition.
Some cases are clear, as with Hamas’s taking of hostages into Gaza, which is separately a LOAC violation and war crime (see here). While they might have been seized as bargaining chips in future prisoner trades, there is little question that they are also being used as human shields. Placing fighters or equipment next to, in, or under facilities where there are many civilians when there appears to be no military need to do so or reasonably available alternatives exist, as in the case of a hospital or a school, is a powerful indicator of intent. As the DoD Law of War Manual observes, “An adversary’s intention to violate this rule is likely to be clear because that adversary normally would make it apparent to the opposing party that attacks against the military objective being shielded would risk harming protected persons or objects” (§ 5.16.2).
Other cases are less clear. For instance, Hamas and other fighters are likely among those civilians fleeing Gaza City. If the fighters are on the evacuation routes solely to retreat from the area into which the IDF is striking, there is no human shielding even though civilians are using the same route. However, if they choose to retreat on that route because of the presence of civilians, they are using human shields. The difficulty would lie in determining their motivation.
Although a particular action by Hamas may not qualify as using human shields, the customary requirement to take passive precautions would still apply. As explained in Article 58 of Additional Protocol I, the defender must “avoid locating military objectives within or near densely populated areas” and has to take “other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.” Thus, operating in the vicinity of civilians and civilian objects, and thereby placing them at significant risk of being harmed incidentally during attacks when doing so is clearly avoidable, violates the requirement.
Just about every objective party—the United States, the European Union, and the UN Secretary-General —agrees that Hamas is using human shields in this conflict and, indeed, has used them routinely for years. But that doesn’t let Israel off the hook; they continue to have an obligation to protect noncombatants.
Schmitt again:
Article 51(8) of Additional Protocol I provides that a violation by the enemy of the human shielding prohibition does not release the attacker from its “legal obligations with respect to the civilian population and civilians, including the obligation to take precautionary measures provided for in Article 57.” This means that the human shields continue to factor fully into proportionality calculations and that the attacker must do everything feasible in the circumstances to avoid harming them (so-called active precautions). For instance, an attacker must consider alternative tactics, weapons, and targets that would yield a similar effect on the enemy while placing the shields at less risk of harm.
I believe this provision reflects customary law (see also ILA Study Group Report, p. 360). However, this view is not universal. In particular, the UK Manual on the Law of Armed Conflict asserts, “Even where human shields are being used, the proportionality rule must be considered. However, if the defenders put civilians or civilian objects at risk by placing military objectives in their midst or by placing civilians in or near military objectives, this is a factor to be taken into account in favour of the attackers in considering the legality of attacks on those objectives” (§ 2.7.2). As Yoram Dinstein explains, “the general practice of States has traditionally stamped with approval the approach that, should civilian casualties ensue from an illegal attempt to shield combatants or a military objective, the ultimate responsibility lies with the Belligerent Party putting the civilians at risk” (p. 211-12). Notably, he does not suggest that the human shields should be disregarded altogether but instead that their inclusion in the proportionality calculation can take account of the enemy’s unlawful conduct.
Of course, from a practical perspective, a party violating LOAC by using shields can effectively bar its enemy from attack if there are enough human shields to render the attack “excessive” under the rule of proportionality. But in my view, a malevolent party to the conflict should not be able to deprive civilians of the protections they enjoy from attack. Such an interpretation appears to skew the military necessity-humanitarian considerations balance of LOAC too far in the direction of the former.
There is also a long-standing debate among LOAC experts over whether civilians who voluntarily shield military objectives need to be considered in the attacker’s proportionality and precautions in attack assessments. The ICRC and many respected scholars believe they do not sacrifice their full protection as civilians through their actions (ICRC Interpretive Guidance, p. 56-57; Sassoli, para. 8.345).
However, in my opinion, individuals who intentionally leverage their civilian status to impede the enemy’s operations are directly participating in hostilities and, therefore, lose these protections from attack for such time as they so participate. This is the position of the United States, Israel, and many prominent scholars (DoD Law of War Manual, § 5.12.3.4; here, p. 118-19; Dinstein, p. 209). The distinction between involuntary and voluntary shields makes sense, for the latter act to deprive themselves of their LOAC protections, whereas the former are being victimized. To the extent that voluntary shields can de facto (cause the attacker to hesitate) or de jure (render the attack disproportionate if they do not lose civilian protections) make an attack impossible, it would seem clear that they are “participating” in the hostilities very directly. However, although attacks on direct participants technically are permissible under the law of armed conflict, Israel does not conduct them. Instead, the direct participation status of voluntary shields only affects the application of the proportionality and precautions in attack rules during Israeli operations (see here, p. 118).
There is an important caveat that bears directly on the situation in Gaza. Many Gazans have ignored the IDF warnings to move south. If they have done so because they are hoping to complicate IDF operations, they qualify as voluntary human shields; the IDF need not consider them when conducting its operations. But everyone else retains full civilian protection regardless of motivation for staying. Some may be unable to move because of infirmity, some may not wish to move (as is often the case with the elderly), and some may sympathize with Hamas. In all these cases, they should, in my opinion, be treated as involuntary human shields by the IDF (accord, ILA Study Group Report, p. 360).
And the IDF agrees. In its 2014 Operation Protective Edge into Gaza, the IDF urged the civilian population to evacuate the area of operations and identified evacuation routes, just as it is doing today. Many did not heed the warning. I later had the opportunity to meet with senior IDF legal advisers and discuss the matter in depth. They uniformly rejected the premise that such individuals should be treated as voluntary shields (see here, p. 119).
When there is reasonable doubt regarding the voluntariness of their shielding, the civilians must be assumed to be acting involuntarily. Some cases are not equivocal. The classic case of obvious voluntariness in Gaza during past exchanges is that of going to a building that the IDF has warned will be attacked and standing on the roof waving Hamas flags to be visible to the IDF. A key caveat is that children, who lack the mental capacity to be treated as having acted voluntarily, are always involuntary shields as a matter of law.
A November 2023 Al Jazeera Explainer (“What is a ‘human shield’ and why is Israel using the term in Gaza?“) contains insights from several other experts.
This label can be used by a warring party to “relax the repertoire of violence that is permitted to be used in that area”, said [Neve] Gordon, who teaches international law at Queen Mary University of London.
The presence of human shields does not render a site immune from attack. While they are protected people according to the laws of war, the military assets they shield can still be legitimately targeted.
If they die, the responsibility for their death is placed on those who use them as human shields, rather than on those who kill them. Therefore, “in an area where there are only human shields and combatants, more lethal violence can be used”, Gordon said.
The limits are drawn by the principles of distinction and proportionality: An army has the duty to target only the enemy, even if this means facing greater risks to minimise civilian casualties; and to weigh the military value of each attack against the civilian casualties that are likely to result from it.
Non-combatant civilians even if used as human shields are entitled to protection, experts say.
Marc Weller, chair of international law and international constitutional studies at the University of Cambridge, said that if 1,000 people were sheltering at a site that was proven to hide a Hamas presence, Israel would have to send soldiers in to only hit the enemy assets (principle of distinction). If it instead opted to bomb the compound from the air, it must be able to prove the existence of enemy assets and to argue that the “incidental” loss of life was proportionate to the military advantage gained (principle of proportionality).
[…]
“The law says hospitals are protected but immediately adds a series of exceptions where it is allowed to bomb hospitals,” Gordon said. “Israel knows what these exceptions are and frames the hospital as being a site where those exceptions apply.”
Gordon and co-author Nicola Perugini coined the phrase “medical lawfare” to describe “the idea of framing hospitals as carrying out a mission that is outside their humanitarian duty to justify strikes against them”.
This is a strategy “repeatedly deployed by the Israeli military and government to legitimise attacks on life-sustaining and saving infrastructure and shift the blame onto the Palestinians themselves,” Gordon said.
As noted several times, both by front pagers and commenters, since this conflict started, while Israel and Hamas are equally bound by international humanitarian law and the laws of armed conflict, the fact of the matter is that Israel is held to a much higher standard in the court of public opinion. Like it or not, the fact that Hamas is a terrorist organization with no respect for human life or laws of any kind is simply baked into our expectations. Israel, on the other hand, is regarded as a civilized nation-state and a full participant in the liberal international order. So, while the law applies to both parties equally, we actually expect only one of them to follow it.
Going back to the Finkelstein and Votel essay, it’s arguable that, at least as of January, Israel was in fact acting within those parameters.
What reasons do we have to believe that Israel is not targeting civilians? Israel provided extensive evidence to the Court of its civilian harm mitigation measures, measures akin to what the U.S. government seeks to develop and institutionalize pursuant to the Civilian Harm Mitigation and Response Action Plan (CHMR-AP) and its recently adopted Department of Defense Instruction on CHMR. The precautions Israel is using are consistent with DoD’s objectives in developing the CHMR-AP and should be considered “best practices.” Among these methods are distributing leaflts, placing phone calls, and sending text messages to warn civilians of impending operations as well as distributing civilian harm “hotzone” maps that make clear, down to individual blocks and buildings, where civilians can move in order to significantly reduce the likelihood of being caught in crossfire or bombardments. While the civilian displacement required to heed these warnings is onerous, these procedures do save lives and most notably are inconsistent with an intent to kill or harm civilians. At the same time, such efforts set back Israel’s counterattack, since they warn not just to Palestinian civilians, but also Hamas of impending operations. Nevertheless, Israel continues to issue such warnings despite the military impairments they entail.
The US-led coalition used similar techniques fighting ISIS in Iraq and Syria from 2014 to 2019. For example, the United States was able to leverage the communication capabilities of the Iraqi Government and International Relief Agencies to inform the civilian population in places like Mosul. We also conducted extensive joint planning between military forces and the humanitarian community to identify civilian movement corridors and assembly locations and de-conflicted them with ground and air operations. In other urban areas like Raqqah and smaller villages along the Euphrates Valley, we frequently slowed or stopped operations to work closely with local tribal leaders to minimize the impact of military operations on the population and infrastructure. Despite our considerable efforts, it was impossible to completely prevent civilian casualties and collateral damage. Like Hamas, ISIS readily made use of the population and civilian infrastructure to shield its operations and impact the conduct of military operations. Yet the United States was not accused of genocide before the ICJ for its operations against ISIS.
Votel certainly has intimate knowledge of our planning efforts and rules of engagement. But there are certainly military observers whose opinions I value who disagree with this assessment, arguing that Israel has used disproportionate force and has done too little to protect noncombatants.
From an international law perspective, we likely won’t know the answer definitively for years. It will take a very long time for the various charges to be litigated in the appropriate venues. But Israel is certainly losing in the court of public opinion.
