The recent outcry about civilian casualties as a result of NATO bombings in
Libya and constant complaints about “collateral damage” in the war in
Afghanistan, as well as the Goldstone Report, have raised afresh a subject that
has become the most burning issue of International Humanitarian Law (IHL).
Indeed, the use of civilians as human shields during hostilities has become a
major problem facing all democracies – and primarily Israel – in contemporary
Human shields have been employed worldwide in both
international and non-international armed conflicts, including the recent
conflicts in Afghanistan, Iraq, Gaza, Lebanon and Libya. Fighting from within
densely populated areas and using the civilian population as a protective
umbrella has turned, in reality, into a routine combat tactic for irregular
The use of human shields is a popular tactic because it can
either impede a party from targeting its enemy due to moral or legal constraints
or, alternatively, compel it – at least under the prevailing interpretation – to
violate international humanitarian law. Moreover, if an attack is launched
despite the presence of human shields, the shielding party can, and often does,
weaken the support for its enemy by exploiting the harmed civilians as a means
of propaganda in the media.
While the prohibition against using civilians
as human shields is widely acknowledged under IHL, the current law and its
application have become incompatible with modern warfare and lead to undesirable
The first notable problem is that in recent conflicts, including
in Operation Cast Lead, the strongest criticism of IHL violations has been
directed at the counter- attacking party, usually an army of a democratic state,
rather than the parties that utilized civilians in order to shield themselves,
usually forces of a non-democratic state or irregular organizations such as
al-Qaida or Hamas. This relative lack of response – as exemplified by the
Goldstone Report – renders the prohibition merely theoretical. The
counterattackers are vilified; the shielders are ignored or even
The second problem is that the current application of the law
encourages the belligerent to use human shields against military
counter-attacks. According to IHL as generally interpreted, even if a party to a
conflict attacks while illegally shielding itself with civilians, the
counter-attacking party must still take the usual precautions against harming
civilians, which may nullify the purpose of its offensive. This leads directly
to unfortunate results, since under the principle of proportionality (i.e., the
assessment of whether collateral damage is excessive in relation to the
anticipated specific and direct military advantage), the flagrant use of human
shields can effectively prevent an attack on a legitimate enemy
THE CURRENT accepted rules serve to benefit those parties willing
to utilize civilian casualties to achieve military advantages. In order to
curtail the use of this dreadful tactic, some modification of the interpretation
of IHL is critical.
We propose a twofold solution.
shielding party’s obligations must be treated more seriously. As opposed to the
current atmosphere, the international community, NGOs and the global media must
direct their monitoring and condemnation also toward those shielding parties.
Additionally it ought to be clarified that both parties will be held accountable
for criminal IHL violations arising from any use of human shields, and also that
international tribunals will adopt a strong and balanced stance against such
Second, with regard to the counterattacking party’s obligations,
a structural change in the application of the proportionality principle is
required in order to cope with the realities of asymmetrical wars. The
proportionality assessment cannot be detached from the shielding party’s actions
and ought to take into account the incentive to illegally use human
Thus we propose that the proportionality assessment must be
adjusted when the use of human shields is part of a widespread or systematic
policy, or when the military objective protected by human shields poses a clear
and present danger to the adversary troops or population.
military objects – such as guns or rocket launchers – proportionality should
mean that any degree of force that suffices to silence the enemy fire would fall
under the proportionality principle, unless it is shown that this purpose could
have been achieved by alternative means, less costly in terms of incidental harm
to civilians. Otherwise, we would eliminate the principle of selfdefense during
battle – a step that would, in effect, eviscerate the conceptual foundation of
the laws of war.
These adjustments would deprive human-shield-users of
their current advantages, ultimately enhancing civilian protection during armed
The current international law as applied not only increases
the risk to innocent civilians, but also jeopardizes the credibility of the laws
of war. “It would not be right,” Winston Churchill wrote, “that the Aggressor
Power should gain one set of advantages by tearing up all laws, and another set
by sheltering behind the innate respect for law of its opponents.”
international community’s focus must be readjusted to reality. Nowadays, the
values have been reversed. The democratic states defending themselves have found
themselves under relentless criticism, while there is an almost complete lack of
attention to the parties that originally violate IHL by intentionally
jeopardizing civilians in order to achieve military benefits. This attitude
creates a danger for all those who cherish human rights and democratic
Moreover, the IHL rule of proportionality must be given a
realistic interpretation. A “proportionate proportionality” must be introduced.
We accept the limitation that when facing war or terrorism, the democratic state
“must often fight with one hand tied behind its back” – as Justice Aharon Barak
has put it. However, the current rules and their application have allowed the
blatant use of human shields to successfully tie both hands of a democratic
state by preventing it from defending itself.
Amnon Rubinstein is a
professor of law at the Interdisciplinary Center, Herzliya, a former minister of
education and Knesset member, and the recipient of the 2006 Israel Prize in Law.
Yaniv Roznai is a PhD candidate at the London
School of Economics (LSE).