Now that a somewhat fragile cease-fire has silenced the rockets in southern
Israel, it is appropriate to comment on a major problem both the US, NATO and
Israel are facing in their asymmetrical wars against non-armies and non-states.
In Gaza, Afghanistan, Yemen and Waziristan, the use of human shields has become
a major issue in international humanitarian law.
The law is clear: the
use of human shields in any armed conflict is a war crime. The party which
attacks a military target so shielded, however, must do so according to strict
rules of proportionality.
The Goldstone Report adopted this principle and
blamed Israel for ignoring it in operation Cast Lead.
government, although criticizing this report in strong language, now acts
according to the principles spelled out by this report. The instructions given
to the IDF were clear: avoid bombing all civilian targets; use your technology
and attack Hamas missile launchers and other purely military
There were, of course, cases where civilians – including women
and children – were killed in Gaza by Israeli aerial bombardment, but generally
this was either the result of navigational errors or because civilians were
caught in crossfire because of their presence at a purely military
Thus, the Israel Air Force did not resort to carpet-bombing areas
from which missiles were launched against Israeli civilian targets. Had the air
force done this, the results perhaps would have been more beneficial for Israel
and the number of alarms and direct hits would, in all likelihood, have
decreased, but then Israel would have been condemned by the international
community and media for slaughtering innocent civilians.
Thus, a party
attacked by human-shielded weapons is damned if it disregards the human shield
and damned for its weakness by its suffering civilians if it doesn’t.
issues need clarification: first, the media and international lawyers have
literally forgotten that any party using human shields – whether the Taliban or
Hamas – is guilty of a war crime at least equal in severity to the party which
attacks a target so shielded.
Secondly, the issue of proportionality
should be balanced against the right of self-defense. In other words, a state
fighting an asymmetrical war against non-armies has a duty not to react
disproportionately to attacks against its civilians, but also has the right
under international law to defend these civilians (or soldiers) against enemy
How can we balance the two duties? There are two possible answers
to this painful question: one is censuring and bringing legal action against a
party that uses human shields. Secondly, we should interpret proportionality
differently in cases of self-defense as compared to cases in which a military
target which does not endanger the lives of your civilians or soldiers is
In an article published in the Stanford Review of Law and
Policy, this author, together with Yaniv Roznai, an expert in international law,
suggested that while retaining the duty to caution civilians who may be attacked
because of their proximity to military targets, proportionality in cases of
self-defense should acquire a specific meaning, i.e. that the attacking (and
menaced) party will not exceed the amount of force required to silence the enemy
fire – even when protected by human shields. This interpretation will reduce the
distance between legal theory and military reality.
The writer is a
professor of law at the Interdisciplinary Center Herzliya (Israel), a former
minister of education and Knesset Member, as well as the recipient of the 2006
Israel Prize in Law.