The Dangers of Depoliticizing Human Shields: A Response to Finkelstein and Votel

[Joyce Claudia Choo was a fellow at the Department of Legal Affairs, UNWRA, during the 2024-2025 Gaza war. She has an LLM in international legal studies and LLB from NYU School of Law, where she was both a Transitional Justice Scholar and Lloyd N. Cutler Salzburg Fellow.]

This post responds to Finkelstein and Votel’s January 20242 post at Just Security, which claims the ICJ’s preliminary ruling on the application of the Genocide Convention in the Gaza Strip “misses the mark” by failing to consider Hamas’s use of human shields among refugees, and by calling for an immediate cessation of hostilities allegedly denies Israel’s right to self-defense. While perhaps written in good faith, the post sorely “misses the mark” on the ICJ ruling by building its core argument on a prejudicial reading, one that views the court’s reasoning and Israel’s warfare through a lens that dehumanizes Palestinian civilians. In doing so, the author’s piece risks inserting a distorted interpretation of international humanitarian law into an already deeply polarized discourse. The essay is largely symptomatic of a wider issue within academic debate surrounding Israel’s war with Hamas, in which focus has been shifted towards justifying the large civilian cost of the war, instead of making clear assessments on the legality of how the actors conduct themselves.  

Misconstruing Human Shields under International Law 

The first issue that the post mis-constructs is the conception of human shielding within international humanitarian law, and how it has been used within its historical context. Finkelstein and Votel describe “two sets of hostages” within the current conflict, first being the Israeli hostages that were taken by Hamas during the October 7^th attack and more importantly for our analysis, the “Palestinian civilians”, which the authors assert are “tragically caught between Israel’s attempts to defend itself and Hamas’s underground infrastructure”. Both the categorization of the Palestinian refugees as hostages, alongside the way the authors phrase the circumstance of human shielding here, warrant further discussion. Firstly, the authors fail to distinguish between the hostages and human shielding as distinct acts under international humanitarian law. Hamas may use perfidy as a means of tactical warfare by embedding themselves within the civilian population, but under international law, “hostages” and “human shielding” are distinct concepts. This is an important distinction that both the ICRC (see Rule 97. Human Shields) and Van Schaack have clarified previously. Finkelstein and Votel’s conflation of the two concepts ignores this legal nuance entirely.  The authors conflating the hostages taken by Hamas and the use of civilian shielding as “hostages” is a category mistake that runs a real risk of providing the international community with a misguided interpretation of how international humanitarian law categorically applies within the current conflict.  

Finkelstein and Votel’s claims that Israel is the “moral” actor in fighting to eliminate a terrorist actor carries dangerous presumptions of shifting blame towards innocent civilians caught within this dire conflict. What must always be kept at the forefront of any academic discussion on human shielding is that even if Hamas is shown to have violated the prohibition on shielding, it does not release Israel of its wider obligations on civilian protection under IHL. The post’s most alarming claim is that Hamas bears full responsibility for civilian deaths because, supposedly, Israel must be allowed to pursue its jus ad bellum aim of eradicating an actor embedded within a civilian population. This logic dangerously absolves Israel of its legal obligations. As Schmitt has previously argued, this particular allegation of embedding within a civilian population “does not, standing alone, amount to the use of human shields.” Yet, Finkelstein and Votel conflate the law in precisely this way, falling prey to a troubling trend scholars have noted: the dehumanization of Palestinian civilians to justify Israel’s warfare under the guise of international humanitarian law. (See Agenjo, Al Attar and Sultany for examples of how scholars have picked up on this nuance.)

De-Politicizing the Rightful Historical Narrative of Conflicts Within Human Shielding 

Equally problematic is the way the post de-politicizes the narrative of the conflict, and the circumstances that predicate the current practice of human shielding. The authors mention that Hamas’s leadership reveals its ‘genocidal intent’, and cites the example of Ayman Shanaa, commenting: “Let us examine history. Let us look at Algeria, Vietnam, and other countries that we liberated. How many did they sacrifice? Millions of martyrs. Therefore I am saying that there is a high price to pay on the path to resistance, and we will bear this price.” Finkelstein and Votel forgets that for many Gazans, reference to anyone killed by the IDF is a “martyr”, as Haque has picked up on. And the claim that all these ‘martyrs’ were not innocent civilians reduces the experience of the thousands of Palestinian refugees suffering in the conflict towards a binary lens of misunderstanding how the law operates within its rightful socio-legal context. 

Further, the authors conclude that the only inference that this comment could bear is the “destruction of a group in whole or in part”, under the Genocide Convention. What the authors fail to do within their argument is locate those comments within their rightful historical and political nexus. As Gordon and Perugini have noted in the book Human Shields, the historical process of human shielding can be traced back towards anti-colonial resistance movements, where activists would (and still continue) to reject their narrative as passive actors in warfare by leveraging their vulnerability against oppressive forces. In its modern iteration, Gordon and Perugini argue, these tactics are used in wars rooted in “resistance”, and they rightfully warn against de-politizing them of their historical context, a move that risks misrepresenting their very function. 

Particularly notable is Finkelstein and Votel’s dangerous usage of this de-politization, which reduces their argument to a binary misunderstanding of “Israel’s right to self defense” against “the hostages of the Palestinian people”. In fact, by reinserting the correct political and linguistic context back into these comments, there is a plausible reading that Shanaa’s comments refer to the resistance fighters of Algeria and Vietnam, which political authors do contextualize as informing the Palestinian resistance within history.   

Within Gordon and Perugini’s discussions, they warn against conceptualizing the civilian population within acts of human shielding as passive figures within warfare. For example, they elucidate how the Johnson administration radically altered the origins of human shielding by “obscuring the political context informing the Vietnamese resistance and reconceptualizing the civilian population as hostages in the hands of the Viet Cong”. Finkelstein and Votel fall into the same binary trap, by invoking the “involuntary human shield” as a passive, exploited figure to build a legal narrative that justifies Israel’s continued violence against the civilian population, a tactic many scholars and experts have rightly condemned. 

More recently, Eghbariah has noted that the current conflict is situated within a wider background of Israeli occupation and colonization of the Palestinian territories and peoples, and removing the background of the Nakba within the current conflict leads towards an over-simplified legal argument. What Finkelstein and Votel fail to mention also is that the two 1977 Additional Protocols to the 1949 Geneva Conventions underscore the legitimacy of “irregular fighting to liberate their countries from colonial domination, racist regimes and alien occupation”. Thus, removing this background from a reading of the current day conflict is disingenuous towards the spirit of these conventions, and lends itself to an exercise of engaging in “proportionality calculations [that] become a form of dehumanization”, allowing for the legitimization and sanitization of war crimes. 

The Dangers of Weaponizing Moral Rhetoric Within the Israel/ Hamas War 

The argument also contains dangerous rhetoric of categorizing Hamas as barbaric actors and Israel as the rightful defender in the situation. The language that Finkelstein and Votel utilizes to juxtapose between “the terrorist organization” (Hamas) and the “victim state” (Israel) is symptomatic of a larger issue that many legal authors have tried to shed light towards: that international law discourse is framed within a lens of neo-colonization, and that we should be mindful to critically dismantle their dangerous rhetoric so as to not embed them further within the study of warfare. As Noura Erakat helpfully reminds the international community, international law was originally a creation attributed towards colonial states, and therefore are “structurally detrimental to people under colonial domination.” In their book, Gorden and Perugini critically pick up on this observation. By accessing human shielding in Vietnam within this light, they evaluate that this binary argument, which itself contains remnants of colonial warfare thinking, became a “way to convince the American public that their military was facing an inhumane and barbaric human-shielding enemy”, when instead, the act of resistance should be understood as “part of an effort to outlaw the right to resist foreign invaders”. Readers should be mindful that Finkelstein and Votel’s claims that Hamas is committing “genocide by human shielding” is neither grounded in the ambit of the Genocide Convention, nor a historically accurate reading of human shielding as a means of tactical warfare. To claim that Hamas is doing so would both be disingenuous towards the historical context in which this conflict takes place and expand the ambit of the Genocide Convention in a way that the legal community has never done before.     

Finkelstein and Votel’s analysis, in particular, falls into the same conceptual trap. What is notably missing from their arguments is a well-accepted understanding as has been observed in the global south: when people’s wars, adopted by liberation movements aimed at self-determination use these tactics, the concept itself acquires a “completely negative valence aimed at generating moral and legal aversion” from the state committing the attacks on the civilian population, placing full blame on the other side. Regrettably, the authors recycle the same colonial script in their attack on South Africa by accusing the state of engaging in “lawfare” that is “unsurprising […] given the proximity that South Africa appears to bear towards Hamas”. They cite evidence that ten days after the October 7 attacks, the South African Foreign Minister was apparently on a call with Hamas’s chief Ismail Haniyeh.  The conclusions the authors draw from these occurrences is deeply concerning, by accusing South Africa and the ICJ of “lending itself to the efforts of the terrorist organization” through “sympathetic state partners”, they remove the legal validity of South Africa’s claims from the debate, and once again, paint a troubling and unrealistic picture of warfare and the legal advocacy towards readers. What the authors fail to acknowledge is that South Africa, as mentioned in their briefs, and by other litigators and academics, have always shared strong historical linkages with the Palestinian cause, due to their shared histories of anti-colonial and anti-apartheid struggles. To reduce South Africa’s claims to the ICJ as the result of “proximity” to a “terrorist actor” is disappointing, bears very little legal relevance to the debate, and perpetuates harmful narratives of “moral vision” into what is already a highly polarized humanitarian catastrophe. The sub-text of their post is clear: proximity and state activism in response to Palestinian suffering is complicity, and legal resistance is delegitimized as terror.

Conclusion 

There are smaller issues with the author’s legal analysis, including their evaluation that the ICJ cannot rule on ‘proportionality’ within its genocide analysis, especially given the relevance of how the jus in bello is conducted would surely inform the court’s weighing of the merits of the genocide claims in the future. However, this response chooses critically to focus on the way Finkelstein and Votel have framed their arguments of human shielding within this conflict, and in disputing it hope to elicit to readers alternative ways of viewing the discourse from a historically correct position. As Martha Minow helpfully reminds the international community, tackling injustice requires us to do so without “demonizing our enemies”, and a useful step within that process is to humanize our conflicts and adversaries within their correct historical narratives.