The Regulation of Human Shields Within Armed Conflict: The Influence of Colonial History

The accusation of using ‘human shields’ is increasingly weaponized within the landscape of armed conflict. The United States accused the Viet Cong during the Vietnam War,1 Israel has accused Hamas in the Palestinian territories2 and Russia has recently accused Ukraine3 of using human shields. Voluntary human shields, such as the peace activists resisting the invasion of Iraq in early 2003,4 are also observed during armed conflict, although to a lesser extent. International humanitarian law, which regulates armed conflict, prohibits the use of human shields stating ‘[t]he presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations.’5 This article aims to consider, through a lens of colonial history, how this provision in international law has both legitimised and justified the killing of voluntary and involuntary human shields.

Voluntary Human Shields

The principle of distinction is fundamental in international humanitarian law, demanding that ‘[p]arties to the conflict shall at all times distinguish between the civilian population and combatants...and accordingly...direct their operations only against military objectives.’6 In contrast, civilians ‘shall not be the object of attack’7 benefitting from such protection ‘unless and for such time as they take a direct part in hostilities.’8 This is a binary distinction that defines the civilian as ‘the combatant’s other’,9 a person who is not participating in the hostilities. Therefore, ‘being defined in terms of what they are not doing, civilians are conceived of as passive individuals’.10 Indeed, the distinction principle is only firmly enforced for ‘innocent’ civilians, those who are deemed unable to protect themselves.11 Therefore, when ‘paradoxically agentic civilians’12 emerge as voluntary human shields who exhibit nonviolent defensive action, legal assumptions are challenged.13 As a result of this, there is general consensus that international law categorises voluntary human shields as directly participating in hostilities because they take ‘affirmative steps’14 acting to the ‘detriment’15 of a party to the conflict. As outlined above, when civilians are considered to be directly participating in hostilities they no longer benefit from civilian protections therefore becoming potential targets.

In agreement with Professor Vasuki Nesiah, this article suggests that the effort to categorise voluntary human shields as directly participating in hostilities, and consequently subject to a suspension of civilian protection, is ‘determined by the coloniser/colonised distinction not the civilian/combatant distinction.’16 Providing an insight into the prevailing ideology of colonial invasion,a French officer wrote in 1834 during the military operation in Algeria that ‘[a]ll populations who do not accept our conditions must be despoiled. Everything must be seized, devastated, without age or sex distinction...annihilate all who will not crawl beneath our feets like dogs.’17 The colonial philosophy thus justified indiscriminate annihilation in response to all forms of indigenous peoples' opposition to military invasion.18 Accordingly, this attitude helps inform our understanding today that voluntary human shields ought to lose their civilian status. Comparable to how resistance to colonisation was to be subject to ‘annihilation’, today resisting the military attacks of powerful states as a voluntary human shield is subject to losing civilian protection and becoming a legitimate target. The degree of alignment ‘with dominant military forces determines which bodies are valued, and which ones have forfeited rights to protection by humanitarian laws’.19 This is even applicable to nonviolent resistance by voluntary human

shields as illustrated by the United States perspective of peace activists in Iraq as having ‘crossed the line between combatant and noncombatant’.20 The notion of genuine resistance is incomprehensible to the neo ‘civilising missions’ of powerful Western states that it is perceived as ‘wrongful’21 and ‘intentional misconduct’.22 This highlights the preserved colonial foundation reinforcing the suppression of voluntary human shields.

Involuntary Human Shields

A second fundamental principle of international humanitarian law is proportionality which recognises a balance between ‘military necessity and humanitarian considerations’.23 A proportionality assessment analyses whether the expected incidental loss of civilian life would be excessive in relation to the military advantage anticipated.24 If the incidental loss of civilian life is predicted to be disproportionate to the legitimate aims, it is instructed that these attacks are suspended or cancelled.25 There is consensus amongst scholars that involuntary human shields should be included in the proportionality assessment ‘because they did not willfully forfeit’26 their protected civilian status. This is in sharp contrast to voluntary human shields who are excluded from this analysis. However, concerns have been raised that a high enough number of involuntary human shields could render a legitimate attack on a shielded military target disproportionate,27 potentially incentivising the use of human shields as a form of deterrence.28 Scholars have thus responded by advocating for ‘a marked adjustment in the “proportionality” calculation’.29 This means that ‘what amounts to “excessive” injury to civilians must be relaxed in the exceptional circumstances of human shields.’30 For example, the UK Manual on the Law of Armed Conflict states in relation to the use of involuntary human shields ‘...the enemy’s unlawful activity may be taken into account in considering whether the incidental loss or damage was proportionate to the military advantage expected.’31

While it is acknowledged that those using human shields should not benefit from weaponizing this unlawful activity,32 this article aims to highlight that the flexibility in what is considered excessive civilian deaths in the context of involuntary human shields disproportionately impacts ‘nonwhite civilians in ex-colonies’.33 In early twentieth-century international law, to be considered sovereign and a member of the ‘Family of Nations’,34 states had to satisfy a Eurocentric ‘standard of civilisation’.35 The ‘failure’ of non-European states to meet this standard rendered them as ‘suitable objects for conquest’36 and barbarians in need of rescue.37 Hence, the civilised-uncivilised distinction at the heart of international law legitimised the ‘civilising mission’. It is within this context that the coloniser ‘seldom thought he had reached the threshold of disproportionality in violence against the colonised’38 rendering ‘the colonised human perennially disposable’.39 Accordingly, how collateral damage is determined today is influenced by racialized hierarchies embedded within the international landscape.40 The ‘civilising mission’ re-emerges and is perpetuated through the contemporary language of human shields. For example, in the Vietnam War, the United States ‘invoked the legal figure of the involuntary human shield’,41 depicting the opposing Viet Cong insurgents ‘as hiding behind human shields because they were uncivilised and ignorant of the principles of international law.’42 Since the American military ‘was facing an inhumane and barbaric human-shielding enemy’,43 the responsibility for the deaths shifted to the Viet Cong justifying the extensive killing of civilians by the United States.

More recently, Israel has accused Hamas in Palestine of using under-18s to shield military targets from attack in order to dilute allegations against the Israeli military conducting indiscriminate attacks in populated areas.44 In 2018, Israel’s ambassador to the United Nations described Hamas as ‘terrorists [that] hide behind innocent children to ensure their own survival’.45 On the other hand, Israel argues that protecting children is the motivation for its use of missiles. In 2019 Israeli defence minister Naftali Bennett stated, ‘Israeli security forces will hunt each and every terrorist, until our children are safe and protected.’46 This establishes a dichotomy between Israel and Palestine: ‘Israel was using its missiles to protect its children. Hamas was using its children to protect its missiles.’47 As Professors Neve Gordon and Nicola Perugini have highlighted, this accusation insinuates ‘the charge...that the Palestinians are savages. Not unlike imagined barbaric pagans who offered their children to the gods, it suggests that the Palestinians of Gaza have no problem sending their sons and daughters to the front lines. The subtext is that civilised people protect their children while Palestinians sacrifice them.’48 Therefore, the human shield accusation is a modern day vehicle for the civilised-uncivilised distinction that places the blame on Hamas for the deaths inflicted by the Israeli military thus legitimising the use of force and excessive collateral damage. Paradoxically, while the human shield accusation is being employed by Israel to justify its supposedly civilised use of force compared to Palestine, Israel has often used Palestinians from the West Bank and Gaza as human shields while conducting military tasks.49 In fact, using Palestinians as human shields was open Israeli military policy until Israel’s High Court of Justice prohibited it in 2005.50 However, reports indicate the Israeli military continued to illegally use Palestinians as human shields regardless of this ruling.51

To conclude, the inherent nature of the international regulation of colonial subjects and human shields is impossible to separate.52 The phrase ‘human shield’ emerged after the Second World War53 parallel to the process of decolonisation, when the sovereignty and self-determination of ex-colonies was recognised.54 As these communities ‘were finally recognized as fully human they also became potential human shields’.55 The current regulation of human shielding provides an avenue to legitimise civilian death within a legal framework, whether that be by categorising voluntary human shields as directly participating in hostilities or expanding the proportionality assessment in the context of involuntary human shields. The regulation of human shielding ultimately demonstrates how international law can be harnessed to perpetuate remnants of the colonial past.

Endnotes [1] Neve Gordon and Nicola Perugini, Human Shields: A History of People in the Line of Fire (University of California Press, 2020), 86-95. [2] Ibid 165. [3] Neve Gordon and Nicola Perugini, “Why we need to challenge Russia’s human shields narrative,” Al Jazeera, April 3, 2022, www.aljazeera.com/opinions/2022/4/3/why-we-need -to-challenge-russias-human-shields-narrative. [4] For example: Donna Mulhearn, Ordinary Courage: My journey to Baghdad as a human shield (Australia: Pier 9, 2010). [5] Article 51(7) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (Additional Protocol I 1977). [6] Additional Protocol I 1977 Article 48. [7] Additional Protocol I 1977 Article 51(2). [8] Additional Protocol I 1977 Article 51(3). [9] Gordon and Perugini, Human Shields: A History of People in the Line of Fire, 81. [10] Ibid. [11] Michael Newton and Larry May, Proportionality in International Law (Oxford University Press, 2014), 213. [12] Helen Kinsella, “Gender and Human Shielding,” The American Society of International Law (2017): 310. [13] Gordon and Perugini, Human Shields: A History of People in the Line of Fire, 113.

[14] Michael N Schmitt, “Human Shields in International Humanitarian Law,” Columbia Journal of Transnational Law 47 (2009): 318 (emphasis added). [15] Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (International Committee of the Red Cross, 2009), 58; Michael N Schmitt, “Deconstructing Direct Participation in Hostilities: The Constitutive Elements,” NYU Journal of International Law and Politics 42, no. 3 (2010): 736. [16] Vasuki Nesiah, “Human Shields/Human Crosshairs: Colonial Legacies and Contemporary Wars,” The American Society of International Law (2017): 325. [17] ibid 324 citing Lucien Francois de Montagnac, Lettres D’un Soldat (E Plon, Nourrit, 1885), 299. 18. Nesiah, “Human Shields/Human Crosshairs,” 324. [19] Ibid 325. [20] Ibid citing Los Angeles Times, ““Human Shields” May Be Considered Combatants,” Los Angeles Times, February 27, 2003) quoting United States General Tommy Franks www.latimes.com/archives/la-xpm-2003 -feb-27-fg-shields27-story.html. [21] Newton and May, Proportionality in International Law, 215. [22] Ibid 213. [23] Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, Cambridge University Press, 2016), 9-10. [24] Additional Protocol I 1977 Article 51(5)(b). [25] Additional Protocol I 1977 57(2)(b). [26] Newton and May, Proportionality in International Law, 216; Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 185; Schmitt, “Human Shields in International Humanitarian Law,” 327. [27] Newton and May, Proportionality in International Law, 205. [28] Gordon and Perugini, Human Shields: A History of People in the Line of Fire, 148. [29] Beth Van Schaack, “Human Shields: Complementary Duties Under IHL,” The American Society of International Law (2017): 319 citing The Island, Leaked Memorandum dated March 10, 2015 para 44. [30] Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 185. [31] Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict (United Kingdom Ministry of Defence, 2004), 68. [32] Charles J Dunlap Jr, “The DoD Law of War Manual and its Critics: Some Observations,” International Law Studies 92 (2016): 100. [33] Gordon and Perugini, Human Shields: A History of People in the Line of Fire, 168. [34] Lassa Oppenheim, International Law, (1st edn, Longmans Green and Co, 1905), 108. [35] Ibid 75. [36] Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005), 38. [37] Ibid 96. [38] Nesiah, “Human Shields/Human Crosshairs,” 323. [39] Vasuki Nesiah, “Human shields, human heresies” International Politics Reviews 10 (2022): 38. [40] Nesiah, “Human Shields/Human Crosshairs,” 325.

[41] Gordon and Perugini, Human Shields: A History of People in the Line of Fire, 93.

[42] Ibid 92.

[43] Ibid 93.

[44] Hedi Viterbo, Problematizing Law, Rights, and Childhood in Israel/Palestine (Cambridge University Press, 2021), 293.

[45] Toi Staff, “Israel demands UN condemn Hamas’s use of children, civilians as human shields,” The Times of Israel, May 14, 2018, https://www.timesofisrael.com /israel-demands-un-condemn-hamass-use-of-children-civilians-as-human-shields/ (emphasis added).

[46] Yaniv Kubovich, “Bennett Brags about Killing Iranians and Changing the Rules, Infuriating the Security Establishment,” Ha’aretz, December 9, 2019 https://www.haaretz.co.il/news/ politics/2019-12-09/ty-article/.premium/0000017f-e72f-da9b-a1ff-ef6f59410000 cited in Viterbo, Problematizing Law, Rights, and Childhood in Israel/Palestine, 294.

[47] Benjamin Netanyahu, “PM Netanyahu Addresses the UN General Assembly,” Mission of Israel to the UN in Geneva, September 29, 2014 https://embassies.gov.il/UnGeneva /NewsAndEvents/Pages/PM-Netanyahu-addresses-the-UN-General-Assembly-29-Sep-2014.aspx.

[48] Neve Gordon and Nicola Perugini, “The fallacy of Israel’s human shields claims in Gaza,” Al Jazeera, June 18, 2018, https://www.aljazeera.com/opinions/2018/6/18/the-fallacy -of-israels-human-shields-claims-in-gaza.

[49] “Human Shields,” B’Tselem: The Israeli Information Center for Human Rights in the Occupied Territories, accessed May 5, 2023, www.btselem.org/human_shields.

[50] Ibid.

[51] Ibid.

[52] Gordon and Perugini, Human Shields: A History of People in the Line of Fire, 168.

[53] Ibid 2.

[54] For example: Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 Dec 1960) (adopted by 89 votes to none; 9 abstentions).

[55] Gordon and Perugini, Human Shields: A History of People in the Line of Fire, 169.

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