Guest Post: The Use of Human Shields and International Criminal Law

by Tali Kolesov Har-Oz and Ori Pomson

[Ori Pomson and Tali Kolesov Har-Oz are both teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty.] 

Introduction

The recent hostilities between Israel and Hamas have attracted a great deal of media and public attention. However, while a number of media reports have alluded to the legality vel non of certain actions committed by both sides, they have thus far contained little in-depth legal analysis.

One practice that has attracted significant attention is the purported use of “human shields” by Hamas. This post will present a legal analysis of such practices, and examine the possible implications of that analysis on the current situation in Gaza. Although it would be interesting to examine as well the possible criminal responsibility for statements endorsing or encouraging this conduct, that question will not be examined in the framework of this post.

The Use of Human Shields under International Law

In international humanitarian law (IHL), the term “human shields” concerns “civilians or other protected persons, whose presence or movement is aimed or used to render military targets immune from military operations.” The use of human shields both in international armed conflicts (IACs) and in non-international armed conflicts (NIACs) is considered a violation of customary international law (von Leeb, 15 ILR 395, n.1; ICRC, Rule 97). Treaty law directly prohibits such practice in IACs (GCIV 28; API, art. 51(7)) and indirectly in NIACs (e.g., CA 3 with Category ‘C’ Claims, 109 ILR 441).

Post-Second World War tribunals considered the use of human shields – focusing on POWs – to be a war crime (Student, 118-120; von Leeb,15 ILR 395, n.1). This was codified in the Rome Statute, which explicitly prohibits the use of human shields in IACs in art. 8(2)(xxiii), criminalizing utilization of “the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.” There lacks such a provision concerning the customary prohibition of the use of human shields in NIACs. Yet, considering the famous Tadić dicta that the dichotomy between IAC and NIAC crimes “should gradually lose its weight” and that “the current trend has been to abolish the distinction and to have simply one corpus of law applicable to all conflicts,” it could be argued that the analysis of Rome Statute’s provision concerning human shields in IACs is relevant to the analysis of the customary prohibition of the use of human shields in NIACs as well.

The specific elements relevant to the definition of the crime of using human shields in the International Criminal Court’s Elements of Crimes document are as follows:

1. The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict.

2. The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations.

In order to fulfil the required actus reus in Element 1 of the crime, it is not necessary to force civilians to relocate close to a military objective. The mere placement of military assets in the vicinity of civilians fulfils this requirement.

Since the actus reus of this crime is rather broad, it seems that great emphasis is placed on the mens rea. Thus, in order to be considered a crime of using human shields, the actus reus must be performed with the intention to “shield a military objective from attack or shield, favor or impede military operations.” Additionally, this crime does not require any result; rather, it focuses solely on the acts and intention of the belligerent fearing an attack. Admittedly, there has not been international jurisprudence when no harm has occurred, which may cast doubts upon the customary nature of this alternative. In this case, the discussion is purely theoretical, since the use of human shields by Hamas has often resulted in actual harm. Nevertheless, it should be noted that some actions involving the use of human shields can also be examined through the prism of other war crimes, such as using children to actively participate in hostilities (art. 8(2)(b)(xxvi), (e)(vii); Norman, ¶53) or generally Common Article 3 to the Geneva Conventions of 1949 (art. 8(2)(a), (c); Blaškić, ¶176), which have been established as customary international crimes.

The Use of Human Shields by Hamas

It is widely reported that the acts of Hamas clearly fall within the actus reus of the crime, through the placement of ammunition, rocket launchers and other military assets in civilian homes, mosques, hospitals and schools. While this practice has been the focus of widespread condemnation (see here a statement by the US Secretary of State), Hamas has openly and explicitly endorsed this policy. For example, a Hamas spokesperson called on Palestinians in Gaza to “oppose the Israeli occupation with their bodies alone,” explaining that this was an effective way to thwart Israel’s attacks. This was followed by other, similar statements, such as this one by Hamas’s Interior Minister. These are all examples of the ways in which Hamas “took advantage of the location of one or more civilians.” The particular intent behind these acts is also easily established. In these statements, Hamas officials admit openly and explicitly that their intention is to use the civilian population in Gaza in order to shield their rockets and operatives. Such statements raise interesting questions regarding the criminal responsibility of senior Hamas officials that go beyond the scope of the present post.

The definition of the crime as one that does not require any specific result is an indication that the rationale behind the criminalization of using human shields may go beyond the protection of the civilian population. While the use of human shields obviously endangers those being used in this manner, it also greatly threatens respect for and adherence to the law, and undermines the most basic foundations of IHL. As stated by Prof. Michael Schmitt, the use of human shielding turns the “military necessity-humanitarian considerations balance on its head through use of the former to achieve the latter.” In this regard, the use of human shields is an abuse of the legal protection awarded to civilians. This practice unfairly shifts the burden of consequences for the harm caused to the civilians acting as human shields to the law-complying party to the conflict. Thus, it is crucial that the international community strive to deter this practice.

Reducing the Incentives for the Use of Human Shields

Deterrence from the use of human shields can be achieved in two ways. One, which is not the focus of this post, is to interpret the law in a way that reduces the legal advantages that a belligerent could expect to achieve from using human shields. In that vein, Prof. Yoram Dinstein (153-55), for example, opined that some human shields should be discounted during proportionality analysis. Under that approach, and according to the British Manual (§5.22.1) “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” (for an even more lenient approach under customary law, see: Parks, 162ff). That is to say, the appraisal whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that – if an attempt is made to shield military objectives with civilians – civilian casualties will be higher.

Another way to reduce the incentive of using human shields is effective enforcement of the prohibitions that IHL imposes on the belligerent. The principle of distinction is one of the “intransgressible principles” of the law of armed conflict, and the building block upon which so many other key provisions and principles of the law are founded. This principle has two parts; the first is the obligation to distinguish between innocent civilians and legitimate targets in the targeting process (“distinction in targeting”), while the second is for persons who are fighting to distinguish themselves from those who are not fighting so as to ensure and maximize the protection of innocent civilians (“distinction in conduct”). If the international community takes the principle of distinction seriously, it is time, as Prof. Laurie Blank argues, to stop focusing solely on the violations of distinction in targeting, and focus as well on the violations of distinction in conduct. Currently, militants benefit both tactically and strategically from the use of the civilian population as a shield and as a disguise. Zero tolerance for such crimes and relentless efforts to hold accountable those responsible for such practices would contribute to the fight against the use of human shields and, eventually, help reduce the suffering of the civilian population.

http://opiniojuris.org/2014/08/01/guest-post-use-human-shields-international-criminal-law/

35 Responses

  1. The issue seems rather to be whether the human shields are voluntarily there: if they are, they could be said to be taking active part in the hostilities, and therefore they would lose their immunity. If they are not there wilfully, but are forced to be there, then there is no excuse when targeting them (or targeting a military objective knowing that disproportionate casualties will occur) – the fact that we want to minimize their use cannot justify the targeting (or otherwise unlawful killing) of persons not taking active part in hostilities.

    So, if the attacker has strong evidence that those specific human shields are there voluntarily, then he can attack. If not, he must refrain from targeting.

  2. Neither of those Hamas statements say what the authors above allege. The Hamas statements are invitations for Palestinians to stay in their homes/residences. There is no obligation on civilians to follow instructions to leave their homes (I will leave aside questions concerning the shelling of shelters). Thus, there is nothing unlawful in instructing civilians accordingly. As this excellent post explains, a warning to flee does not transform a civilian object into a military object: http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/?utm_source=feedly&utm_reader=feedly&utm_medium=rss&utm_campaign=guest-post-israels-use-law-warnings-gaza

    Quite apart from that, there is a serious specificity problem, to the extent that the authors intend to rely upon those Hamas statements. Arguably, if a representative of Hamas (a) placed a weapons cache under a residential apartment block; and the same representative (b) directed inhabitants of *that apartment* to remain present, that might show mens rea. A general statement from members of the political wing of Hamas to the citizenry of Gaza to remain in residences scarcely qualifies.

    Worse, the analytical skew in the post overlooks (i) the principal objective of the principle of distinction (preventing civilian suffering pre hoc, not punishing in ICL post hoc); and (ii) fundamentally misconceives the proportionality analysis. In the latter respect, proportionality assumes that there was a legitimate military objective that is targeted and struck. That military party has been subject to the use of force (and criminal justice will often be superfluous). Proportionality’s real concern is with the additional damage to civilians and civilian targets, which, on the proffered analysis, must bear the primary cost of the attack themselves. That is antithetical to the laws of war.

    What does it mean for the “international community” to take the principle of distinction seriously? International peacekeeping or observer missions with broader mandates? My understanding is that that is something that Hamas actually proposes and Israel has long resisted (again, I will refrain from comment on the UN and UNRWA staff killed in the conflict). Or is the proposal, instead, to drag the lifeless bodies of Hamas fighters to the Hague, while the Palestinian civilian body count mounts?

  3. Perhaps you could explain to me how your interpretation squares with article 19 of the fourth Geneva convention. Surely the patients and the medical staff of a hospital are not voluntarily there but the article clearly permits military action against them if the hospital is being used ” … to commit, outside their
    humanitarian duties, acts harmful to the enemy.”?

  4. “It is widely reported that the acts of Hamas clearly fall within the actus reus of the crime, through the placement of ammunition, rocket launchers and other military assets in civilian homes, mosques, hospitals and schools.”

    Yes it’s widely reported.

    http://www.pbs.org/newshour/bb/debating-tactics-ethics-warfare-sides-mideast-conflict/
    “With all due respect, Amos, we’re reverting to this talking point that Hamas is using human shields. Again, there is absolutely no evidence for this. It’s Israel’s word against the United Nations, against Amnesty International, Human Rights Watch, Physicians for Human Rights Israel, Breaking the Silence Israel, as well as the National Lawyers Guild.”

    The schools where the rockets were found had been unused and empty

    On the wider definition of human shields I like to link to this:
    http://justworldnews.org/?p=1761
    [The links are stripped here]

    “I’ve been having a bit of an email exchange today with Sarah Leah Whitson, the director of the Middle East Division of Human Rights Watch, over their decision, yesterday, to rush out a press release criticising the Gazans’ latest use of nonviolent mass action to halt Israel’s resumed practice of punitive home demolitions in Gaza.
    The text of the HRW press release is now available on-line. It is titled OPT: Civilians Must Not Be Used to Shield Homes Against Military Attacks.
    In Sarah Leah’s emails to me she has stressed two points: (1) The point, also made in the press release, that ““Whether or not the home is a legitimate military target, knowingly asking civilians to stand in harm’s way is unlawful.” And (2) that for Palestinian military commanders, in particular, to ask civilians to act as “human shields” in this way represented an unlawful attempt to pur civilians at potential risk.
    I have pointed out to her that by these lights, for Mandela (who was a military commander, much more than Ismail Haniyeh– who was quoted in the HRW release– ever was) to call for South Africa’s non-whites to engage in nonviolent mass actions against the apartheid regime, which were often very risky indeed, would also likewise have been considered “unlawful” or even– as HRW grandiosely terms the situation in Gaza “a war crime.”

    In Gaza now, there’s this:
    “‘If they take it out, they’ll take us with it’
    Joe Catron gives a first-person account of becoming a human shield for the El-Wafa Medical Rehabilitation Hospital in Gaza”

    http://www.middleeasteye.net/columns/if-they-take-it-out-they-ll-take-us-it-under-fire-gaza-hospital-1896796506

    Most of the above repeated with links and more, including discussion of human shields, Hezbollah and IDF in Lebanon in 2006, in a comment here
    http://www.bostonreview.net/books-ideas/fm-kamm-taking-just-war-seriously-gaza#comment-17528

  5. Response…Perhaps you could explain to me how your interpretation squares with article 19 of the fourth Geneva convention. Surely the patients and the medical staff of a hospital are not voluntarily there but the article clearly permits military action against them if the hospital is being used ”

    Unless there is some evidence forthcoming, it would probably be more appropriate to first discuss the prohibition of all war propaganda in Article 20 of the ICCPR. In any event, a dispute over a material fact that would effect to outcome of a criminal case would have to be decided on the basis of the evidence by the trier of fact.

  6. Sorry, I forgot to say that article 19 of the Fourth Geneva Convention might serve as an affirmative defense at trial, if there is convincing evidence. But it isn’t a license. I take a dim view of the current operations because Israel is once again claiming a state of necessity exists, while it has obviously contributed immeasurably to the creation of that situation.

  7. This does not make sense. De Gaulle’s call of June 18, 1944 to the French to join him and resist the Nazis would be – under this view – an example of the mens rea under the logic expressed here. A call by any sovereign to the citizens would be that mens rea. Then urban fighting which by definition places combatants in close proximity to civilians who are caught in harm’s way would always amount to human shields liability. It would seem the view should be more nuanced in terms of whether the actual unit commander is placing weapons in places with civilians with the intent to use the civilians presence as a part of the cab rant defense. If this strategy can be proved to be an overall strategy of the leaders of the military then one could assert their command responsibility.

    If one shoots weapons from places where civilians are and one calls for all to fight the enemy – a call for mass mobilization – that cannot be human shields liability per se.

    It seems a far too convenient broadening of the definition of a crime on the one hand. Just sayin’

    Moreover, the propaganda point is well taken in terms of the effort at perception management. Every alleged war crime in targeting is reframed as a war crime on the other side of using human shields and vice versa. Constraint that is the result of the inability for civilians to escape, can not mean that a combatant is committing a war crime in fighting near those civilians.

    To say otherwise is to leave the legal high ground to the country that states it is complying with the laws of war and at the same time is permitted to argue that civilian deaths are the fault if human shields by the other side.

    Truth being the first casualty of war, neither side should be given a perception management advantage through the exploitation of the interpretation as to the implications of the constraint placed on civilians.

    It makes no sense unless you are in a blame Hamas praise Israel mode which is imstrumentalization of the law jus in bello against whoever one supports fr the pint of view of jus ad bellum grounds.

  8. Response…1940 not 1944

  9. Imagine a scenario like this one. UN compound full of civilians. Hamas fighters come in with rockets and begin setting them up and tell everyone they have to leave or risk being killed by the other side. Requisitioning the space for military purposes. If the Hamas fighters hold the people there then I see the human shields liability argument. If the Hamas fighters encourage people to go then it should be different. We accept that civilian objects can become military objectives by their use – sniper in the church bell tower – and do not see that as a war crime.

    It seems to me that the constraint on the civilians is what generates the mens rea not the fact converting a civilian object into a military object.

    I am stipulating that none if the civilians take a direct part in hostilities.

    Finally, the whole Article 4(a)(2) criteria being bandied about are not the only bases for legitimate forces with combatant privileges.
    We went through this ten years or so ago with the discussion of the applicability of the Geneva conventions to detainees. I think it is troubling that we blithely deploy those criteria which themselves show a limited vision of those with the combatant’s privilege.

    I wod stipulate that things are easier to sort out in the Israeli side – at least ostensibly. Is a reservist that can be called up at anytime a civilian until called up or a properly targetable person? These are things I do not see discussed because they may be heresy to the received wisdom, but they are things that I think about.

  10. There’s no evidence in here at all as to the existence of ‘human shields’. It kind of defeats all the legalese posturing. That Reuters article you linked to and relied upon quotes Hamas officials telling people not to leave their homes. That is not using a human shield. I think the Reuters quote you are referring to is this ‘Gaza’s Interior Ministry, in a statement on Hamas radio, dismissed Israel’s warnings as “psychological warfare”. It told those who left their homes to return and others to stay put’?

    You then draw the following conclusion ‘Hamas officials admit openly and explicitly that their intention is to use the civilian population in Gaza in order to shield their rockets and operatives’. As for the MEMRITV clip, I’d really need a translation done by a non-Zionist media organization, even the BBC would suffice.

    As for Hamas saying something, the Palestinian people don’t have to obey Hamas; the rest of the article you rely on notes how ‘some 10,000 people had fled south’ to UN schools, despite Hamas’s alleged statement.

    The evidence is important. You are assuming that the Israeli officials are truthful and accurate. I am assuming they are liars. This is simply how much of the world is viewing this slaughter so if you are making accusations against Palestinian fighters, accusations which the Israeli state is hoping will stick, you need to back it up with some reliable evidence.

    The first WP, 17 July, article you quote has a journalist saying ‘But they could be seen moving small rockets into the mosque.’ Now, moving small rockets into a mosque, possibly for a very short period of time, who knows, does not constitute ‘human shields’ by any stretch of the imagination. UNRWA are doing a mighty job and have been clear in stating that when rockets have been found in their premises, the schools had either been ‘mothballed’ or vacant. You can go after the resistance for bringing weapons into schools for sure, if you haven’t noticed some mores serious crimes that are happening, but this still doesn’t equal human shields.

    Also, you draw on the UK Manual, which states that civilians are not be used to shield military objectives. But we don’t know that there were military objectives in the areas you speak of. Where is the evidence? I’m sorry but I’ve been following ‪@IsraelinUK @IDFSpokesperson etc and all they’ve got are some dumb cartoons. This blogpost of yours is sounding more like a defence of Israelis who are killing civilians than an allegation against Palestinians.

    Staying with the Manual, you focus on proportionality, but probably could do with having a look at the initial sentence: ‘Any violation by the enemy of this rule [using human shields to protect a military objective] would not relieve an attacker of his responsibility to take precautions to protect the civilians affected’… That’s Israel’s responsibility, not relieved, not a licence to increase the number of civilians you can kill…

  11. Response…The text of the HRW press release is now available on-line. It is titled OPT: Civilians Must Not Be Used to Shield Homes Against Military Attacks.
    In Sarah Leah’s emails to me she has stressed two points: (1) The point, also made in the press release, that ““Whether or not the home is a legitimate military target, knowingly asking civilians to stand in harm’s way is unlawful.”

    Since they are merely asking, it would depend upon whether or not the civilians felt they were acting under duress. Article 31 of the Rome Statute, Grounds for excluding criminal responsibility, para 1(c) stipulates that “The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected.” Israel is infamous for willful and wanton destruction of homes and property.

    Response … I have pointed out to her that by these lights, for Mandela (who was a military commander, much more than Ismail Haniyeh– who was quoted in the HRW release– ever was) to call for South Africa’s non-whites to engage in nonviolent mass actions against the apartheid regime, which were often very risky indeed, would also likewise have been considered “unlawful” or even– as HRW grandiosely terms the situation in Gaza “a war crime.”

    Like De Gaulle’s call that Ben mentioned, Mandela’s was not limited to non-violence. Mandela said the South African government had publicly offered to release him from jail on at least ten occasions, including a speech delivered by P.W. Botha to the Parliament in 1985 which called upon Mandela to publicly renounce the use of violence in exchange for his release.

    On each occasion, like Hamas, Mandela turned down the offers, while explaining that the government only wanted the onus for violence to rest on his shoulders, while he wanted to reaffirm to the world that members of his movement were only responding to violence done to them. See “Long Walk to Freedom: The Autobiography of Nelson Mandela” http://books.google.com/books?id=RHwLqVrnXgIC&lpg=PP378&pg=PT378#v=onepage&q&f=false

  12. I’m sorry but this guest post simply doesn’t maintain the same high standards of quality as, arguably, those ever posted on this blog…it is far too misleading, disingenuous

  13. Instead of creating a new article on this site, an act, which seems to add to the misleading nature of your post (an attempt at deflection perhaps?) it should simply have been made in the comments of Janina Dill’s very well written article here http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/?utm_source=feedly&utm_reader=feedly&utm_medium=rss&utm_campaign=guest-post-israels-use-law-warnings-gaza

  14. The conduct in Student was that ‘troops under his command drove a party of British prisoners of war before them, resulting in at least six of these British prisoners of war being killed by the fire of other British prisoners’ 4 LRTWC 118. The conduct in High Command was the billeting of POWs in the same building as the troops of the accused Hoth, using them to locate time bombs. With respect, that sort of conduct does not have the highly ambivalent character of locating military objectives in a built-up area, in the context of an armed conflict where the entire area of operations is effectively built-up or at any proximate to civilians and civilian objects.

    Other cases from the era tend to support Mr Davis’s point about actively directing the movement (or otherwise) of protected persons. If you look to cases where people were in fact held responsible for protected persons being killed in Allied air bombardments, I believe you will find that those people either personally or through intermediaries held those protected persons in custody (either they were slave labour or POWs) and failed to discharge a concomitant duty to protect them from the hazards of war.

  15. First, any comparison between Hamas leaders and Mandela is appalling and completely disrespectful to the memory of one of the greatest leaders of the 20th century.
    Second, I believe the authors did exactly what they said they would: offer serious legal analysis of the claim that Hamas is using human shields, an analysis that was missing in the discourse before this post and is also missing now in some of the comments. It is true that international criminal law deals with individuals and the same person must fulfill the actus reus and the mens rea of a crime. In that sense, those statements are obviously not enough to prove that those making them committed the crime of using human shields. However, this alone does not mean that they are not otherwise responsible for that crime. Certain modes of liability, such as aiding (after the act) or soliciting might become relevant in those situations and also merit serious legal, facts-based, analysis. Since we (at least I) don’t have the facts necessary to conduct such analysis I will not speculate as to whether or not they are responsible. As a side note, I find it interesting that some of those who are very quick to infer (or rather speculate) Israel’s intentions merely by looking at the results of its actions are much more reluctant and careful when analyzing Hamas’ intentions based on their widespread, systematic and years long practice of placing military assets in sensitive civilian sites. Some consistency is required.
    Lastly, I believe that the term “human shields” could be misleading as it paints a certain picture that is narrower than the crime as defined by the States-parties to the Rome Statute. There is a good reason that the crime is not just “using human shields” but rather: “Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.” If we are to take the Rome Statute seriously we must offer a serious legal analysis as to what does it mean to ” Utilizing the presence of a civilian”. I believe that the authors of this post have made an attempt for such a serious analysis.

  16. I was asking Guy how does his human shield theory square with article 19 of the fourth Geneva convention. Instead I got hostage (of all people) complaining about war propaganda.

    BTW: I can see that a lot of people doubt whether Hamas is actually using civilians as human shields. Is there any doubt that the entire crew and the patients in Shifa hospital are human shields?

  17. In the context of an article said to be on *international criminal law*, I would have thought the relevant question is: ‘Is there any doubt whether [identified individual or class thereof] is actually using civilians as human shields’. Instead it’s ‘Hamas this’ and ‘Hamas that’. My memory might be deceiving me but I could have sworn some obscure decision in the distant past said something about crimes being committed by men and not abstract entities.

  18. Response…First, any comparison between Hamas leaders and Mandela is appalling and completely disrespectful to the memory of one of the greatest leaders of the 20th century.

    Why? Mandela and the ANC refused to renounce the use of violent resistance and were placed on official lists as terrorists and terror organizations. Mandela called attention to that fact in his autobiography. The New York Times report on a meeting with Arafat and others in Zambia quoted Mandela as saying that “like the foes of apartheid, Mr. Arafat is fighting against a unique form of colonialism, and we wish him success in his struggle.” See OLD ALLIES GREET MANDELA IN ZAMBIA http://www.nytimes.com/1990/02/28/world/old-allies-greet-mandela-in-zambia.html

    You seem to be engaging in revisionist history and dissimulation.

  19. Response…Instead I got hostage (of all people) complaining about war propaganda.

    BTW: I can see that a lot of people doubt whether Hamas is actually using civilians as human shields. Is there any doubt that the entire crew and the patients in Shifa hospital are human shields?

    Of course there’s doubt, since the IDF has specifically declined to say how it determines that a military objective is located too close to a hospital and it never produces any real evidence beyond these vague allegations. It has destroyed hospitals even after the international press and the staffs have confirmed that there is no “military use” as you’ve described. See Allison Deger “Israeli military destroyed el-Wafa hospital even though it knew there were no weapons inside” http://mondoweiss.net/2014/07/military-destroyed-hospital.html

    There’s a great deal of difference between striking a hospital by accident and calling up and announcing that you intend to deliberately destroy one because there’s been fighting or rockets launched a few blocks away. We’re living in an age where we’ve seen Israel target objects as small as a Toyota and call off a strike because there’s a civilian nearby. There’s absolutely no military necessity to destroy an entire hospital full people, much less a license to do so in article 19 of the Fourth Geneva Convention, in the sort of situations we are witnessing and which you are vaguely suggesting.

  20. Wonderful post, well done!

  21. you did a great job. Very good article.

  22. A number of the talkbacks seem offended by the very concept that a scholarly article might not proceed from a starting assumption that everything Hamas claims is to be accepted without question as truth and everything Israel claims is to be discounted as lies. I find it refreshing to see an analysis that does not make these assumptions, particularly considering that post-war analysis of the last Gaza war (Operation Cast Lead in early 2009) has indicated that Israel’s figures were far more accurate than Hamas’s, even according to Hamas! See http://www.khaleejtimes.com/displayarticle.asp?xfile=data/middleeast/2010/November/middleeast_November13.xml&section=middleeast&col= (this is not, I note, an Israeli source).

  23. We would like to thank you all for the interesting comments provided.
    Considering there has been much factual debate here, we decided to split the response between factual and legal analysis.

    The following regards the legal issues raised:
    We shall first address the responses to the international criminal law issues raised in the Post. A point raised by Miles is that to prove actus reus it would be necessary to direct the civilians to stay. We cannot agree on this point. As the Elements of Crime stipulate, the question is that of utilization of civilian presence for military purposes. In fact, there is no indication in the Elements of Crime that knowledge of the utilised person of his or her utilisation is necessary at all. This leads us back to the suggested rationale of the crime: preventing abuses of IHL privileges. We would hence also agree with R. Oribatz to a certain extent that the use of the term “human shield” does not fully reflect the broader of the crime enshrined in the Rome Statute.

    Prof Davis raised a very interesting point on the border between human shields and mere civilian presence in the vicinity of military objectives. It would certainly be incorrect to assert that human shields are being used in every instance that fighting occurs in a civilian area. After all, in certain instances, quick access to civilian facilities is necessary for military facilities (see South Korea’s reservations to Article 58 to API in this regard: http://www.icrc.org/customary-ihl/eng/docs/v2_cou_kr_rule23; I would assume that De Gaulle was calling for the classic instance of levée en masse). Thus, we return to the key element in the crime is “utilizing”, and this is also reflected in the word “used” in Article 51(7) to API. Accordingly, much of the essence lies in the mens rea.

    Rob raised a point that previous case-law demonstrates far more active use of human shields. As we pointed out in the Post, what we are discussing goes beyond previous jurisprudence. Consequently, we certainly agree that Student and High Command cannot serve as practice directly regarding the subject matter of the current post. However, it would also be correct to remark that the provision – inter alia – in the Rome Statute goes beyond what was laid down in those cases and hence our analysis did so too.

    An issue raised by R. Oribatz concerned modes of liability. We would also point out that command responsibility (art. 28) has the potential to create a heavy burden upon those military personnel responsible over subordinates. After all, the utilisation of civilian presence may occur very quietly, can take place over a very long period of time and does not necessitate a large amount of forces to commit. As the commander merely “should have known” about the crime’s commission (would weapons missing from a stash be sufficient?), this appears to widen the potential for command responsibility quite broadly.

    There were also a few comments regarding proportionality and the use of human shields. Guy argued that as long as the human shields are not voluntary – and thus not DPH – the usual proportionality test applies. However, we are afraid the proportionality test is not that simple. The question of proportionality changes (at least) under customary international law, and this is reflected in the Parks article cited (see also pages 109-110 here: http://books.google.co.il/books?id=YVkqfJ0UYoUC&lpg=PP1&pg=PP1#v=onepage&q&f=false; see also Kelsen at page 78: http://books.google.co.il/books?id=BemxZuVYY6oC&printsec=frontcover#v=onepage&q&f=false). In order to prove that custom has evolved to be in line with Article 58(1) to API (which appears to adopt Guy’s stance), one would need to prove – placing an emphasis on actual practice, and not treaties or manuals (to adopt the approach of the ICJ in ¶27 in Libya/Malta and by Prof Akehurst in his seminal article Custom as a Source of International Law) – that State practice together with opinio juris is in line with Article 51(8) to API. This currently does not seem to be the case, compounded upon consideration that many of the most affected States (see approach adopted by the ICJ in ¶74 of North Sea Continental Shelf) are not party to API.

    Miles referred us to Dr Dill’s recent post (http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/), positing the argument that warnings do not change the proportionality test. This certainly raises a further interesting question as to the fluidity of the proportionality test when human shields are being used and they themselves are only subsequently made aware of that (which, as noted, is unnecessary for the human shield crime to be committed). Of course – and this applies generally – human shields (save the complex DPH question) must not be the object of attack. Moreover, there is no obligation upon civilians to leave their homes, as they are not (at least to a full extent) subjects of international law. However, while this question becomes complex considering Israel is fighting against a non-State actor, reference should be made to Article 58 to API which does call upon the defending side to remove their civilians from the vicinity of military objectives, deriving from the customary norm of distinction (see also Kelsen above). If warnings are made, actively calling for civilians not to leave their homes runs counter to this. (It is important to question whether Article 58 would have any purpose left if it would always be precluded by potential fear of chaos – after all, the fog of war is likely to fall whenever IHL becomes applicable.) It should also be noted that in Sir Hersch Lauterpacht’s 7th edition of Oppenheim’s (§158) it is very apparent that something does change in assessing the legality of a strike following warning. It could then be argued that as a consequence of a prior warning a shared burden of proportionality occurs, a fortiori when the civilians are being used – albeit initially without their knowledge – as human shields.

    We would also like to note that we purposely did not focus on the ramifications of the use of human shields vis-à-vis proportionality, if only because this subject has been discussed extensively, and we could not add to that discussion in the framework of a couple of paragraphs.

    Regarding the factual analysis, one preliminary comment (addressing the concern expressed by some regarding our reliance on translations) is that Tali is fluent in Arabic, and thus verified our sources.
    As to evidentiary issues – regarding Shifa hospital, this video (of a Finnish News Correspondent witnessing a rocket launching from the hospital) might be of some interest: http://youtu.be/Nu-e5qWXx-k. Additionally, the NY Times interview with Mr. Kaware from Khan Younis who was “going to the roof to try to prevent a bombing” is also pertinent: http://www.nytimes.com/2014/07/09/world/middleeast/by-phone-and-leaflet-israeli-attackers-warn-gazans.html?_r=0.

    These descriptions, in addition to the ones brought forth is the post, should be enough to substantiate, at this early point in time, the claim that human shields are being used in Gaza. It should be noted that in general, the international press in Gaza has hardly reported on how Hamas has operated in this round of fighting. However, fear of retaliation – including the administration of the death penalty to those suspected of collaborating with Israel (http://www.nydailynews.com/news/world/hamas-kills-suspected-collaborators-israel-gaza-article-1.1205010) – during this period of the conflict might explain the lack reporting; Palestinian journalist Radjaa Abou Dagga, for example, wrote an article for French newspaper Libération, published July 23, detailing how Hamas intimidated him, forcing him to leave Gaza, and how Hamas uses a section of Shifa hospital, just a few meters from the emergency room, as their offices. The next day, Mr. Dagga asked Libération to remove his article from their website, apparently out of fear for his family still in Gaza. Italian journalist Gabriele Barbati tweeted the following statement in English and Italian as he left Gaza: “[o]ut of Gaza far from Hamas retaliation: Misfired rocket killed children [yesterday] in Shati.” The Wall Street Journal’s Middle East correspondent based in Egypt, Tamer El-Ghobashy, tweeted a photo of rubble with the explanation: “An outside wall on the campus of Gaza’s main hospital was hit by a strike. Low level damage suggest Hamas misfire.” Soon after, El-Ghobashy deleted the tweet.

  24. We would like to thank you all for the interesting comments provided.
    Considering there has been much factual debate here, we decided to split the response between factual and legal analysis.

    The following regards the legal issues raised:
    We shall first address the responses to the international criminal law issues raised in the Post. A point raised by Miles is that to prove actus reus it would be necessary to direct the civilians to stay. We cannot agree on this point. As the Elements of Crime stipulate, the question is that of utilization of civilian presence for military purposes. In fact, there is no indication in the Elements of Crime that knowledge of the utilised person of his or her utilisation is necessary at all. This leads us back to the suggested rationale of the crime: preventing abuses of IHL privileges. We would hence also agree with R. Oribatz to a certain extent that the use of the term “human shield” does not fully reflect the broader of the crime enshrined in the Rome Statute.

    Prof Davis raised a very interesting point on the border between human shields and mere civilian presence in the vicinity of military objectives. It would certainly be incorrect to assert that human shields are being used in every instance that fighting occurs in a civilian area. After all, in certain instances, quick access to civilian facilities is necessary for military facilities (see South Korea’s reservations to Article 58 to API in this regard: http://www.icrc.org/customary-ihl/eng/docs/v2_cou_kr_rule23; I would assume that De Gaulle was calling for the classic instance of levée en masse). Thus, we return to the key element in the crime is “utilizing”, and this is also reflected in the word “used” in Article 51(7) to API. Accordingly, much of the essence lies in the mens rea.

  25. Rob raised a point that previous case-law demonstrates far more active use of human shields. As we pointed out in the Post, what we are discussing goes beyond previous jurisprudence. Consequently, we certainly agree that Student and High Command cannot serve as practice directly regarding the subject matter of the current post. However, it would also be correct to remark that the provision – inter alia – in the Rome Statute goes beyond what was laid down in those cases and hence our analysis did so too.

    An issue raised by R. Oribatz concerned modes of liability. We would also point out that command responsibility (art. 28) has the potential to create a heavy burden upon those military personnel responsible over subordinates. After all, the utilisation of civilian presence may occur very quietly, can take place over a very long period of time and does not necessitate a large amount of forces to commit. As the commander merely “should have known” about the crime’s commission (would weapons missing from a stash be sufficient?), this appears to widen the potential for command responsibility quite broadly.

    There were also a few comments regarding proportionality and the use of human shields. Guy argued that as long as the human shields are not voluntary – and thus not DPH – the usual proportionality test applies. However, we are afraid the proportionality test is not that simple. The question of proportionality changes (at least) under customary international law, and this is reflected in the Parks article cited (see also pages 109-110 here: http://books.google.co.il/books?id=YVkqfJ0UYoUC&lpg=PP1&pg=PP1#v=onepage&q&f=false; see also Kelsen at page 78: http://books.google.co.il/books?id=BemxZuVYY6oC&printsec=frontcover#v=onepage&q&f=false). In order to prove that custom has evolved to be in line with Article 58(1) to API (which appears to adopt Guy’s stance), one would need to prove – placing an emphasis on actual practice, and not treaties or manuals (to adopt the approach of the ICJ in ¶27 in Libya/Malta and by Prof Akehurst in his seminal article Custom as a Source of International Law) – that State practice together with opinio juris is in line with Article 51(8) to API. This currently does not seem to be the case, compounded upon consideration that many of the most affected States (see approach adopted by the ICJ in ¶74 of North Sea Continental Shelf) are not party to API.

    Miles referred us to Dr Dill’s recent post (http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/), positing the argument that warnings do not change the proportionality test. This certainly raises a further interesting question as to the fluidity of the proportionality test when human shields are being used and they themselves are only subsequently made aware of that (which, as noted, is unnecessary for the human shield crime to be committed). Of course – and this applies generally – human shields (save the complex DPH question) must not be the object of attack. Moreover, there is no obligation upon civilians to leave their homes, as they are not (at least to a full extent) subjects of international law. However, while this question becomes complex considering Israel is fighting against a non-State actor, reference should be made to Article 58 to API which does call upon the defending side to remove their civilians from the vicinity of military objectives, deriving from the customary norm of distinction (see also Kelsen above). If warnings are made, actively calling for civilians not to leave their homes runs counter to this. (It is important to question whether Article 58 would have any purpose left if it would always be precluded by potential fear of chaos – after all, the fog of war is likely to fall whenever IHL becomes applicable.) It should also be noted that in Sir Hersch Lauterpacht’s 7th edition of Oppenheim’s (§158) it is very apparent that something does change in assessing the legality of a strike following warning. It could then be argued that as a consequence of a prior warning a shared burden of proportionality occurs, a fortiori when the civilians are being used – albeit initially without their knowledge – as human shields.

  26. We would also like to note that we purposely did not focus on the ramifications of the use of human shields vis-à-vis proportionality, if only because this subject has been discussed extensively, and we could not add to that discussion in the framework of a couple of paragraphs.

    Regarding the factual analysis, one preliminary comment (addressing the concern expressed by some regarding our reliance on translations) is that Tali is fluent in Arabic, and thus verified our sources.
    As to evidentiary issues – regarding Shifa hospital, this video (of a Finnish News Correspondent witnessing a rocket launching from the hospital) might be of some interest: http://youtu.be/Nu-e5qWXx-k. Additionally, the NY Times interview with Mr. Kaware from Khan Younis who was “going to the roof to try to prevent a bombing” is also pertinent: http://www.nytimes.com/2014/07/09/world/middleeast/by-phone-and-leaflet-israeli-attackers-warn-gazans.html?_r=0.

    These descriptions, in addition to the ones brought forth is the post, should be enough to substantiate, at this early point in time, the claim that human shields are being used in Gaza. It should be noted that in general, the international press in Gaza has hardly reported on how Hamas has operated in this round of fighting. However, fear of retaliation – including the administration of the death penalty to those suspected of collaborating with Israel (http://www.nydailynews.com/news/world/hamas-kills-suspected-collaborators-israel-gaza-article-1.1205010) – during this period of the conflict might explain the lack reporting; Palestinian journalist Radjaa Abou Dagga, for example, wrote an article for French newspaper Libération, published July 23, detailing how Hamas intimidated him, forcing him to leave Gaza, and how Hamas uses a section of Shifa hospital, just a few meters from the emergency room, as their offices. The next day, Mr. Dagga asked Libération to remove his article from their website, apparently out of fear for his family still in Gaza. Italian journalist Gabriele Barbati tweeted the following statement in English and Italian as he left Gaza: “[o]ut of Gaza far from Hamas retaliation: Misfired rocket killed children [yesterday] in Shati.” The Wall Street Journal’s Middle East correspondent based in Egypt, Tamer El-Ghobashy, tweeted a photo of rubble with the explanation: “An outside wall on the campus of Gaza’s main hospital was hit by a strike. Low level damage suggest Hamas misfire.” Soon after, El-Ghobashy deleted the tweet.

  27. I think your whole reading of the elements of the offense regarding the use of human shields is tendentious. You can’t even reach the question in the case of voluntary acts under the explicit terms of Article 31 of the Rome Statute, but you didn’t discuss that at all. People have a right to defend their homes and supplies of food and water against looting and such and they don’t have to evacuate when their routes of escape are under fire by the IDF.

    In many cases the same reports you cite explain that UNRWA requests for a window of time to evacuate after a warning went unanswered. So the threat posed by leaving might have been much greater than remaining in a shelter or home that had not actually been “converted” for enemy military use. It isn’t a crime when your conduct is caused by a threat from circumstances beyond your control. That’s especially true when the IDF is using anti-personnel weapons, like flechette shells in built-up areas, i.e. The Rome Statute “Grounds for excluding criminal responsibility … 1(c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. … (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:(i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.

    The video from a Finnish News Correspondent doesn’t actually show any rocket launch. It’s just an unconfirmed report that a rocket was fired near the area of the hospital’s rear parking lot. That hardly constitutes grounds for determining that the hospital has been converted for military use or for example, that a person firing a weapon like an RPG was using the hospital for cover.

    I don’t think that citing newspaper accounts that merely echo the IDF spokesperson’s talking points amounts to admissible evidence. Article 19 of the Fourth Geneva Convention doesn’t allow you to blow-up a hospital because the IDF has complained that the contents of the basement are an open secret or on the grounds of an unconfirmed report of hit and run military operations nearby. After all, the IDF murdered protected persons in Gaza after the 2011 Eilat attack and never quietly dropped its claims that they were responsible after evidence that the attack was carried out by Egyptian groups came to light. See Evidence undermines gov’t’s claim that terrorists were Gazans and The IDF quietly abandons its spin on Eilat attack at +972 Magazine
    * http://972mag.com/barak-and-netanyahu%E2%80%99s-story-doesn%E2%80%99t-add-up/21347/

    * http://972mag.com/the-idf-quietly-abandons-its-eilat-spin/23652/

  28. Ori has the most legally appropriate comments here. Yes, there can be voluntary and involuntary human sheilds and other types in between. Guy’s view is incorrect. What, for example, if a military unit of 10 people is being attacked by an enemy military unit of 15 people that is using what are apparently 10 voluntary and 40 involuntary human shields? Can the unit of 10 fire as best they can at the enemy unit of 15 (and any civilians who are DPH), knowing that some of the 40 will likely be killed and wounded? Most would say yes, and the war crime would be that of the unit of 15.
    Of course, during a fluid battle operation, one will not likely know for sure what type of shield is being used in each case.

  29. Response…Ori has the most legally appropriate comments here

    Except he’s not describing the indiscriminate attacks that are being reported even the Israeli press. The AP Big Story is the UN Secretary General’s statement that says an attack that killed 10 people at a U.N. school in the Gaza Strip is a “moral outrage and a criminal act.” He called for investigation and prosecution of those responsible.

    Haaretz is also describing the attack on Rafah as completely indiscriminate: After more than 24 hours of Israeli aerial bombardments, at an average of five an hour, and heavy artillery fire on Rafah, the city’s medical facilities have had to place the bodies of the dead in cold storage designed for fruits and vegetables. This step had to be taken not only because of the high number of casualties, but because Rafah’s Yusuf al-Najar Hospital had to be evacuated after bombardments and artillery fire that endangered the lives of patients and staff. Because cemeteries and funeral processions are also being bombarded, people are afraid to bury their dead.

    After the collapse of the cease-fire Friday, about two hours after it began, Rafah residents said the Israel Defense Forces bombarded and fired on houses indiscriminately, with the inhabitants still inside. They reported that when they tried to flee they were bombarded in the street. “All the houses shook like in an earthquake, “residents told Haaretz.

    A few thousand people living in neighborhoods on the edge of Rafah fled to the Shabura refugee camp, considered “protected” from ground invasion. But at 3 A.M. Saturday a bomb dropped by an Israeli fighter jet on a number of asbestos dwellings in the camp killed eight people from three families, including three girls and three boys, a woman and a man of about 50. Fighter jets and gun boats also bombarded civilian neighborhoods in the west of the city, killing at least 20 civilians, most of them mainly children.

    Between 10 A.M. Friday and 10 A.M. Saturday about 100 air strikes and a few hundred artillery strikes were counted. In Rafah alone 123 civilians were killed, including 30 children and 14 women, according to the Palestinian Center for Human Rights.
    http://www.haaretz.com/news/diplomacy-defense/.premium-1.608532

  30. Response…As to evidentiary issues – regarding Shifa hospital, this video (of a Finnish News Correspondent witnessing a rocket launching from the hospital) might be of some interest …

    The Israeli press got hold of the story and falsely turned it into a viral story about rockets (plural). Ynet reports “After Israeli press caught wind of the video it went viral, prompting the journalist to urge: “Don’t use me as your propaganda weapon.”

  31. Here is the full statement on the bombing of the UNRWA school from the US State Department’s Jen Psaki:

    The United States is appalled by today’s disgraceful shelling outside an UNRWA school in Rafah sheltering some 3,000 displaced persons, in which at least ten more Palestinian civilians were tragically killed. The coordinates of the school, like all UN facilities in Gaza, have been repeatedly communicated to the Israeli Defense Forces. We once again stress that Israel must do more to meet its own standards and avoid civilian casualties. UN facilities, especially those sheltering civilians, must be protected, and must not be used as bases from which to launch attacks. The suspicion that militants are operating nearby does not justify strikes that put at risk the lives of so many innocent civilians. We call for a full and prompt investigation of this incident as well as the recent shelling of other UNRWA schools.

  32. Response…I don’t mean to revive a factual debate, since I don’t believe this legal blog is the place to conduct it. However, as I noted earlier, any serious attempt to define the war crime of “utilizing the presence of civilians to shield…” would need to provide a workable definition for “utilizing”. In this context, I believe that a “Hamas Combat Manual”, captured during the fighting, is illuminating. The manual explains the benefits for Hamas of conducting its military activities from within the civilian population. The Manual lists some of Hamas’ advantages from such activities: the fact that IDF soldiers must limit their use of weapons, especially support fire, in a civilian environment; the fact that the need to control the civilian population and the need to provide them with humanitarian assistance would cause problems to the IDF; and the benefits for Hamas from the destruction of civilian homes as part of the fighting. While the manual (at least the parts that were published) does not explicitly call for the utilization of civilian presence, I believe that such detailed explanation of the benefits that fighting amongst civilians entails is very strong evidence for such utilization.
    In addition, I believe that including these parts in a military manual is yet another indication that this is a policy of Hamas, allowing us (assuming other evidence exists) to place criminal responsibility on the highest commanders of Hamas.

  33. For those commenting above who denied that there is evidence that Hamas intentionally places rockets in densely populated civilian areas (other than from Israeli air and ground footage, which they presumably discount), we have begun to see videotaped evidence of precisely such tactics from – to date – New Delhi TV (NDTV) and France 24 TV . See http://www.ndtv.com/article/world/ndtv-exclusive-how-hamas-assembles-and-fires-rockets-571033 and http://www.france24.com/en/20140805-exclusive-video-hamas-rocket-launching-pad-near-gaza-homes-un-building/ , respectively.

    NDTV’s reporter Sreenivasan Jain’s report from Rafah (South Gaza) shows Hamas militants assembling and later firing a rocket from deep within a densely populated civilian neighborhood, just meters from the reporter’s hotel.

    NDTV states on its website that “[t]his report is being aired on NDTV and published on ndtv.com after our team left the Gaza strip – Hamas has not taken very kindly to any reporting of its rockets being fired. But just as we reported the devastating consequences of Israel’s offensive on Gaza’s civilians, it is equally important to report on how Hamas places those very civilians at risk by firing rockets deep from the heart of civilian zones.”

    France 24’s Correspondent Gallagher Fenwick’s report from Gaza City shows a (previously-fired from) rocket launch pad, and says that the site of the launcher is some 50 meters from a hotel where the majority of international media is staying, and just 100 meters from a UN building with its blue flag flying.

    “This type of setup is at the heart of the debate,” says Gallagher. “The Israeli army has repeatedly accused the Palestinian militants of shooting from within densely populated civilian areas and that is precisely the type of setup we have here.”

  34. T.Miller

    Thank you for posting those reports. Further reporters who have left Gaza are indeed now coming forward with statements and video footage showing Hamas use of human shields it is absolutely sickening. It seems that all the additional footage already published by Israel is clearly true. This would indicate that they are indeed responding to attacks that are originating from densely populated area, close to or from public building and even UN and media base. Shame so many ignored the evidense already available. Would these not clearly constitute War Crimes by the Palestinians/Hamas?

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