Background 

The ongoing Israeli-Palestinian Conflict, 2023, between the Israeli military and Palestinian militant groups, such as the Hamas is proving to be a bloody battle, the fiercest since the Yom Kippur War. According to experts, in the past three weeks, more than 1,400 people in Israel and 7,000 people in Palestine including women and children have lost their lives in the fighting between the two groups. In fact, Palestine has witnessed more deaths in the past 15 days than it has in the past 15 years due to the conflict. The Conflict exposes a variety of challenges and unanswered questions under international humanitarian law and international criminal law. One of the most important is the protection of civilians acting as human shields during wartime.

Israel has levelled accusations against Hamas for embedding themselves in residential areas, provoking an attack. In the past, Hamas has sketched an infamous reputation for itself in the international community for using human shields. They do so by exercising their military actions, such as launching rockets and artillery from or close to densely populated areas or facilities that are generally protected under the Geneva Convention (e.g. schools and hospitals). Hamas’ use of civilians as human shields is a strategic conflict tactic considering the Israeli government’s stance to ensure minimal collateral damage and the position of the West and International Humanitarian Law on civilian casualties. By leveraging human shields, Hamas is able to significantly reduce the scope of military action by the Israeli military. Israel has maintained that Hamas has resorted to the use of human shields again. The Chief Military Spokesperson of Israel, Rear Admiral Daniel Hagari alleged that the largest hospital in Gaza, the Al Shifa Hospital, is used by Hamas as their headquarters. In response, Ezzat El-Reshiq, a Hamas official, refuted the claim via Telegram.

In this context, this article will specifically look into the legal consequences of ‘human shields’.

On Human Shields

The use of human shields has been reported in various conflicts, including by ISIS in Syria and Iraq, as well as in Afghanistan, the former Yugoslavia, and Chechnya. It has also been noted as a historical practice during World War II by Nazi Germany and in the Iraq War in 2003.

The current position of international humanitarian law is the absolute ban on the use of human shields. The party being attacked is obligated not to use human shields as a means of defence against aggression. A number of provisions in the Geneva Conventions address human shields. The scope of the meaning of “human shields”, however, has not always been broad, as it is today.

In the initial text of the Geneva Conventions in 1949, the ban on the use of human shields was limited only to the Third and Fourth Geneva Conventions. Therefore, the scope of protection extended only to prisoners of war and protected persons. With the Additional Protocol I in 1977, the scope of protection was extended to civilians as well. Article 51(7) of the Protocol mandated explicitly contracting parties not to use human shields to “shield, favour or impede” military operations. With the adoption of the Rome Statute in 1998, the use of human shields during international armed conflicts was specifically classified as a war crime under Article 8(2)(b)(xxiii).

This poses a very unique legal loophole. Common Article 2 of the Geneva Conventions defines international armed conflict as “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” However, very broadly, the 2023 conflict can be classified as a non-international armed conflict between Hamas and Israel. Therefore, there cannot be prosecution under the Rome Statute. Further, no treaty provision prohibits the use of human shields in non-international armed conflict explicitly. Even if the conflict were to be considered as an international armed conflict due to Israel’s occupation of Palestinian territories, the International Criminal Court still would not be able to prosecute as Israel is not a High Contracting State of the Rome Statute.

With no legal accountability in place, we turn to customary humanitarian law, which provides for the complete prohibition of using human shields in non-international armed conflicts. This is substantiated with sufficient state practice and opinio juris. Several jurisdictions like Argentina, Australia, Canada, France, Germany, U.K., and the U.S. classify human shields as a criminal offence. During World War II prisoners of war were used as human shields. This was considered to be a war crime by the United States in the Von Leeb (The High Command Trial) case and the United Kingdom (UK) in theStudents case. The ICTY in the Karadžić and Mladić cases examined United Nations peacekeeping forces as human shields to protect potential NATO air targets, including ammunition bunkers, a radar site, and a communications centre.

It is also observed that such a prohibition stems from the duty to differentiate between combatants and civilians during conflict. Human shields are frequently compared with hostage-taking, which is completely prohibited under Article 4(2)(c) of Protocol II.

In Elements of Crimes by the ICC, the requirements of a human shield are– firstly,  the perpetrator moves or takes advantage of the location of civilians or persons protected by international law of armed conflict. Secondly, the perpetrator intends to shield a military objective from attack or favour/impede military operations. It is essential to prove intention which becomes very difficult in instances such as these.

Is ‘human shield’ a valid defence mitigating responsibility?

A natural question that arises in this juncture is whether citing reasons of a human shield is sufficient to escape liability on an international scale. The Authors contend that the answer would be in the negative. This is owing to the principle of proportionality. Proportionality acts as a counterweight to the concept of military necessity. The Israel Supreme Court in 2005 recognised that proportionality is not only relevant when evaluating harm to civilians but is particularly crucial when collateral damage results from attacks. It underscored that the state’s duty to protect both its military personnel and innocent civilians must be balanced, emphasizing the necessity to protect human life, even when it involves complex moral and ethical considerations.

How does one prove that an attack has been undertaken proportionally?  

Firstly, the military objective must be assessed. Secondly, the advantage that could be achieved executing the said objective. Thirdly, this analysis must identify and recognise the harm that could be inflicted on civilian populations. Hence, both these interests must be balanced. The party engaged in the attack must ensure that reasonable care has been undertaken to minimise harm to civilian objects and civilian lives. While military necessity justifies certain actions taken during armed conflict, proportionality ensures that the harm caused to civilians, including those used as human shields, is not excessive in relation to the military advantage sought. This balance is essential to avoid unnecessary civilian suffering.

Way forward

The use of human shields is explicitly prohibited in international armed conflicts under various international treaties and conventions. However, the prohibition’s application to non-international conflicts has not always been as clear-cut. To address this ambiguity and strengthen the norm against using human shields in non-international conflicts, States can make explicit declarations or statements indicating that this prohibition extends to all forms of armed conflict. States should clearly define their stance on the use of human shields in their national legislation. This can involve categorizing the use of human shields as a grave breach of the Geneva Conventions or explicitly labelling it as a war crime.

Human shields are a manner of weaponizing civilians and stripping them of any humanity. It is unfortunate that the civilian population is being used as a strategic tool in the 2023 Conflict. As the death toll continues to rise, the use of human shields is causing a humanitarian catastrophe. If the bloodshed continues, radicalisation will only increase, turning the tide from involuntary human shields to voluntary human shields – a disastrous effect! Peaceful resolution must be achieved through political means and not military aggression to ensure stability in the region and protection of vulnerable human life.

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Calvert Nazareth is a fourth year law student at School of Law, Christ (Deemed to be University).

Chathurya Srinivasan is a fourth-year law student at National Law University, Jodhpur.

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Img: AFP