By claiming that the other
side is using human shields, the attacker provides itself with a pre-emptive
legal defence.
Human shields have been making
headlines for some time. Before the recent fray between the Islamic State of
Iraq and the Levant (ISIL, also known as ISIS) and Iraqi army in Fallujah, the
United Press International released an article entitled “Iraqi forces halt
Fallujah advance amid fears for 50,000 human shields”.
Indeed, not a day has passed
in the past several months without an array of newspapers mentioning human
shields in different theatres of violence: Fom Syria, where ISIL fighters fled
Manbij in convoys apparently using human shields; through Kashmir, where “army and police used civilians as human shields
in operations against militants”; to Ukraine, where pro-Russian separatists were accused of using international observers as
shields.
Moreover, the phrase human
shields is not only used to describe the use of civilians in the midst of war,
but to depict civilians in protests, from Ferguson in the United States, to Zimbabwe and Ethiopia.
Liberal democratic states are
not the only ones who are warning the world of the increasing use of human
shields; rather authoritarian regimes as well as a variety of local and
international organisations of different kinds, from the Red Cross and human
rights NGOs to the United Nations, are invoking the term.
In a recent confidential UN
report, Houthi rebels were blamed for concealing “fighters and equipment in
or close to civilians … with the deliberate aim of avoiding attack.”
Allowing killing
Although different forms of
human shielding have probably been conceptualised and mobilised since the
invention of war, its quotidian use is a completely novel phenomenon. Why, one
might ask, has this term suddenly become so pervasive?
Legally speaking, human
shields refer to the use of civilians as defensive weapons in order to render
combatants or military sites immune from attack. The idea behind the term is
that civilians, who are protected under international law, should not be
exploited to gain a military advantage.
While most people will
undoubtedly be familiar with this definition, less known is the fact that
international law not only prohibits the use of human shields but also renders
it legitimate for militaries to attack areas being “protected” by human
shields.
The US Air Force, for example, maintains that “lawful targets shielded with protected
civilians may be attacked, and the protected civilians may be considered as
collateral damage, provided the collateral damage is not excessive compared
with the concrete and direct military advantage anticipated by the attack.”
Along similar lines, the 2013
document on joint targeting published by the US Joint Chiefs of Staff
underscores the importance of the principle of proportionality, it also notes
that, “otherwise lawful targets involuntarily shielded with protected civilians
may be attacked … provided that the collateral damage is not excessive compared
with the concrete and direct military advantage anticipated by the attack.”
(PDF)
What all this means, quite
simply, is that human shields can be legally killed so long as the deployment
of violence does not breach the principle of proportionality – which requires
belligerents to refrain from causing damage disproportionate to the military
advantage to be gained.
It now appears that police
forces the world over are adopting a similar perspective as they confront
protests and riots.
The motivation behind the
adoption of such guidelines by domestic and international actors is clear: It
allows security forces to relax the rules of engagement, while framing those
who deploy shields as morally deplorable and in breach of international law.
Pre-emptive legal defence
Given the strategic and
pervasive adoption of the phrase human shields, it seems clear that the term is
not only being deployed as a descriptive expression to depict the use of
civilians as weapons, but also as a kind of pre-emptive legal defence against
the accusations of having killed or injured them.
Put differently, if any one of
Fallujah’s 50,000 civilians is killed during an anti-ISIL onslaught, then it is
not the US-backed attacking forces that are to blame, but rather ISIL itself,
which illegally and immorally used civilians as shields.
Moreover, it increasingly
appears that it is enough to claim – in advance – that the enemy is using human
shields in order to warrant the killing of non-combatants.
Even though it is undeniable
that many militaries and non-state armed groups do, in fact, use human shields,
the potential ramifications of the mere accusation are extremely worrisome.
In other words, by claiming
that the other side is using human shields, the attacking force provides itself
with a pre-emptive legal defence.
To understand fully the
implications of this framing it is imperative to take into account that urban
areas, as Stephen Graham from Newcastle University put it, “have become the lightning conductors for our
planet’s political violence.”
The fact that warfare
currently shapes urban life in many areas around the globe means that civilians
occupy and will continue to occupy the frontlines of much of the fighting.
This leaves them extremely
vulnerable to being framed as human shields, since it would be enough to say in
advance that the residents of a city are shields for their deaths to be legal
and justified.
Insofar as this is the case,
then the pre-emptive legal defence may very well be used as part of a
horrifying process aimed at legalising and normalising the massive slaughtering
of civilians.
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