International Law and Human Shield Causalities

In the current reincarnation of the Hamas-Israel war, once more, the issue of Hamas using human shields and attacking civilians, thus committing a double crime, is not the central focus of why we have civilian casualties on both sides. There is nothing in international law defined as the set of rules, norms, and standards generally recognized as binding between states that grants immunity to the party that does not “distinguish between civilian and military targets” and sacrifices its people to mobilize global opinion against the side waging a just war to protect its people from acts of genocide. One of the principal canons of international law, however, is that the side that uses human shields is responsible for the death of innocent civilians positioned in a combat zone to deter retaliation for acts of war. How can it be otherwise?

As Tobias Vestner argued in a Geneva Center for Security Studies document, Addressing the Use of Human Shields, in December 2019, civilians are increasingly used to shield military targets from attack in modern conflicts, exposing combatants to a high risk of death and severe injury. “The side using human shields confronts the opponent with a dilemma, wrote Vestner: attacking the shielded military objective incurs civilian casualties that may undermine the legitimacy of the attacker’s military operations, but refraining from attacking results in military disadvantage and increases military fatalities.” The reason why Hamas demonstrably fronts Palestinian civilians as a human shield is because it knows that international public opinion is ostensibly sensitive to the loss of lives in the Gaza- Israel wars more so than in any other conflict. In 2024, the world faces the highest number of hostilities since the Second World War. According to the Watson Institute at Brown University, wars in Iraq, Afghanistan, Yemen, Syria, and Pakistan have taken a tremendous human toll on those countries. “As of September 2021, an estimated 432 093 civilians in these countries have died violent deaths as a result of these conflicts. As of May 2023, an estimated 4.7 million civilians have perished in ethnic cleansing wars. This figure does not include jihad atrocities in India, Sudan, Bangladesh and Myanmar genocide against Muslims. The Also, beyond civilian casualties, 2 billion people — a quarter of humanity — live in places affected by 197 conflicts. Yet, in all these wars where aggrieved parties neither launch missiles at their opponents nor invade neighboring territories to commit blatant acts of genocide [do Christians in Africa assault their Islamic neighbors with a view of wiping them off the map?] do not agitate the sleep of the foreign policy ‘cognoscenti’ and the denizens of pro-Hamas constituencies, including the usual suspects: media, academia, entertainment industries, civil services, trade unions, a myriad of left political parties, ‘human rights advocates’ and NCOs. The cacophony of voices emitted by Israel’s implacable detractors not only fails to acknowledge that Jihadist agglomerations started this war but, more often than not, justify the massacres as ‘acts of resistance’ in furtherance of a new Final Solution from River to the Sea. Circumspect they are not!

Hamas uses civilians located in non-combatant infrastructure as shields to obfuscate the difference between unarmed residents and military objectives. Accordingly, the fundamental question here is what the international law says about using human shields to deter legitimate acts of self-defense.

In the recent conflict, as in previous ones, we have the launching of missiles indiscriminately aimed at Israeli civilians from the midst of Palestinian schools, mosques, hospitals, homes for the disabled, under UNRWA’s headquarters and residential areas verified by satellite, drone images, and incontrovertible evidence provided by the IDF in Gaza sectors under its control. The Israeli military recently released footage about an interrogation segment of Hamas terrorists who participated in the October 7 massacre in southern Israel. The prisoners provided detailed information, including sketches about the multi-level subterranean command control and communication infrastructure under the Shifa Hospital in Gaza City. This fact has been confirmed by US Intelligence Services and reported in the New York Times. Moreover, Israeli forces arrested the hospital’s director, Muhammad Abu Salmiya, on December 23. His interrogation revealed the extent to which Hamas used the hospital complex to direct terrorist forces, store weapons, and hold hostages. The co-location of civilians with war-fighting facilities is a war crime of the first order and a legitimate target. But Hamas knows that hospitals would never be attacked.

The use of human shields is prohibited under customary international law enshrined in the Fourth Geneva Protocol, Article 28, concerning protected civilians and civilians in general and in Additional Protocol I, Article 51[7]. Moreover, under the Statute of the International Criminal Court, Article 8[2][b][xxiii], in international conflicts, “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” constitutes a war crime. Also, Protocol Additional to the Geneva Conventions of August 12, 1949, and the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, could not be more explicit: “To ensure respect for and protection of the civilian population and civilian objects, the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

On June 27, 2018, the United Nations General Assembly, not known for its partiality to Israel, condemned Hamas for using human shields. The resolution explicitly denounced the terror group for the war crime of hiding behind women and children while attacking civilians. It also decried the use of “schools and hospitals, for military purposes such as launching attacks and storing weapons” to use “civilians to shield military objectives from attacks.” Three years later, when Hamas resumed its attacks and used human shields to prevent retaliation, the UN General Assembly Human Rights Council called Hamas rocket attacks a Double Crime on May 30, 2021 [A/HRC/47/NGO/72 General Assembly]. These were rare moments of lucidity; the august body rejects similar calls in today’s conflict.

The UN General Assembly Human Rights Council, in a rare moment of lucidity, called Hamas rocket attacks a Double Crime on May 30, 2021 [A/HRC/47/NGO/72 General Assembly

The evidence of Hamas committing Double war Crimes was as incontrovertible then as it is overwhelming so today. In addition to irrefutable satellite and drone data concerning the precise location of missiles launched at almost all major Israeli cities, there is a growing body of compelling proof against Hamas’s tactic of publicly encouraging civilians to ignore Israeli warnings of impending attacks on residential units used as military facilities. Social media is rife with images of Hamas blocking escape routes with large trucks and firing at civilians desperate to reach the safety of publicly designated areas. Again, under international law, it is a war crime and a crime against humanity to position civilians voluntarily or under duress at specific civilian or military locations from whence attacks originate to deter retaliation. Readers are encouraged to study the NATO research document Hamas and Human Shields [https://stratcomoe.org], which comprehensively documents Hamas’s war crimes since 2007.

Some Hamas apologists have said that since the Gaza-Israel Conflict is “non-international,” not between states, these prohibitions do not apply. Extraordinary as this implicit admission of guilt may be, the UN has condemned using human shields in non-international armed conflicts in Liberia, Rwanda, Sierra Leone, Somalia, Tajikistan, and former Yugoslavia. Moreover, International Humanitarian Law (IHL) provides the normative framework against which parties’ behavior in non-international armed conflicts must be assessed. As far back as 1949, states agreed, in Article 3, Common to the Four Geneva Conventions, to abide by specific minimum standards in such wars. The provisions of Common Article 3 bind all parties to non-international armed conflicts, including organized non-state armed groups, to observe elementary considerations of humanity. This matter was further clarified by several supplemental treaty provisions and customary humanitarian law governing parties’ conduct in non-international armed conflicts.

Nothing in international law confers immunity on Hamas from the military and legal consequences of firing missiles indiscriminately from the backyards of places of worship. The rules could not be more precise as to which party is responsible for the death of civilians in a civilian facility used as a missile launching platform under Customary International Law Rules 23-24. The practice of using civilians as fronts against retaliation in civilian zones is so appalling that the USA passed the “Shields Act” in 2018, requiring the President to impose sanctions on Hamas and Hezbollah terrorists using human shields.

Furthermore, Hamas can also be accused of taking Palestinians in Gaza hostage. Indeed, under international law, the use of human shields has often been equated with taking hostages, a crime against humanity firmly condemned by the Nuremberg Tribunal. Customary International Law also prohibits this practice under Rule 96.

As to terrorists dressed as civilians [Hamas’ modus opernadi], the rules laid down in Article 4 (A) of the Third Geneva Convention of 1949 dealing with the status of prisoners of war are embedded in the 1907 Hague Regulations concerning the underlying concept of “belligerent status.” Under the heading, The Qualification of Belligerents, Article 1 of the 1907 Regulations states that:

“The laws, rights, and duties of war apply not only to armies but also to militia and volunteer corps fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;
To have a fixed distinctive emblem recognizable at a distance;
To carry arms openly; and
To conduct their operations by the laws and customs of war.”

The core principle in laws and statutes cited above is to prevent the presence of civilians from rendering specific geographic locations immune from military retaliation precisely because one party uses these areas for military operations against either the military forces or civilians of an adversary. Therefore, it can be concluded that using human shields requires an intentional co-location of military objectives and civilians or persons hors de combat, with the specific intent of trying to prevent the targeting of those military objectives. The idea that a state under attack forfeits its right of self-defense simply because the aggressor uses its citizens as human shields to prevent the injured party from rendering harmless civilian installations misused for military operations is demonstrably unreasonable.

When it comes to Israel waging a just war by the norms of military conduct during hostilities, the consensus appears to be that Israel’s self-defense is a de facto war crime even though collateral civilian casualties are the result of Hamas’s time-proven use of humans as shields. But then, too many, like Alice’s Red Queen, prefer to pass “sentence first – verdict afterwards.”