The Paradox of Using Human Shields in War

Human shields drive state armies to distraction. Bound by international law and their own military ethos, state armies find themselves hamstrung when confronting guerrilla armies willing to draw their own civilians into battle. From the viewpoint of state armies, human shields represent a gross violation of the laws of armed conflict. From the perspective of guerrilla organizations, human shields offer a rational strategy to offset their organization’s military weakness.

Clips aired by Israel during the 2008-2009 war in Gaza show how Hamas placed civilians on rooftops to protect buildings suspected of housing arms, and used children to protect militants from attack. In each case, Israel held back. (Indeed, the clips by the Israeli army are entitled: “Preventing Harm to Civilian Bystanders.”) However, these clips also make perfectly clear that human shields are remarkably effective and offered Hamas a very low-cost tool to deter conventional attacks. May guerrillas use human shields? The short answer is yes, but not always.

Shielding works when state armies respect the immunity of noncombatants. We must remember, however, that noncombatant immunity does not protect civilians from all harm. During war, civilians suffer from collateral harm when an army attacks a legitimate military target and cannot avoid civilian casualties. Think about an army attacking an arms depot, the subject of one of the video clips. Civilians living nearby may die when an arms depot is attacked. How many civilians may permissibly lose their lives is the crucial question. The answer is “not many.” Most likely, a single arms depot is not a decisive target. Similar sites abound and rather than cause excessive or “disproportionate” harm to civilians, an attacker is better off looking for another target.

Examples of successful shielding, like those in the clips, offer the first rule of shielding: Seeing to the safety of shields. Human shields only work when guerrillas can bring sufficient numbers of civilians to protect relatively minor targets (such as an arms depot or single militant). Shielding works because both sides immediately recognize that any attack on the shielded site will cause disproportionate harm. It demands careful attention to proportionality and prohibits guerrillas from using shields to deliberately provoke a severe, disproportionate response to stoke world opinion.

The second rule of human shielding speaks to the rights of shields. International law proscribes shielding because it puts noncombatants in grave danger. This is certainly true when militants force prisoners of war to shield their assets. But what about compatriot shields? Can guerrillas conscript their own civilians to shield? As before, the answer is yes, but only if shields give consent and guerrillas conduct shielding effectively by adhering to the first rule of shielding.

Demanding consent immediately creates a problem. If civilians volunteer to shield, they take an active role in the conflict and are no longer noncombatants. This makes them legitimate targets and thus useless as shields. If, on the other hand, civilians are forced onto rooftops at gunpoint or entirely uninformed about their roles as shields (as when militants fire from near a school) then they can hardly be said to give consent. This is the shielding paradox.

Solving this paradox requires us to look at shielding in the same way we look at conscription. A conscript is forced to serve; otherwise he or she faces punishment. Among states, this is justifiable when conscripts serve in a just war (such as a war of self-defense), the burden of conscription is distributed fairly across classes, the punishment for opting out is not extremely onerous (such as the threat of execution), and the body politic assents to conscription. Collective assent legitimizes the coercion of specific individuals.

The same may be said for conscripting human shields. But these conditions are not easy for guerrillas to meet. A just guerrilla war turns on the fight for a dignified life and the struggle for self-determination. As they fight, guerrilla leaders must enjoy sufficient authority to enlist fighters, levy taxes and impose fines and, when necessary, conscript civilians to shield. But as they turn to shields, guerrillas remain bound to utilize shields sparingly, must take care to distribute the hazards of war as widely as feasible, protect minors, and avoid harshly punishing those who refuse to shield.

When guerrillas comply with the first and second rules of human shielding, permissible shielding is as good as, if not better than, conventional deterrence. The table below shows why. It describes how deterrence differs from human shielding with respect to (1) the state of war and proximity of danger, (2) the population at risk, (3) the consent this population gives, and (4) whether civilians are killed or left to die at the hands of others.

DETERRENCE AND HUMAN SHIELDS

Conventional deterrence looks to the future to protect a state (or non-state) by threatening its enemy’s civilians with widespread death and destruction. Clearly, enemy civilians do not consent to being used in this way. Human shields, on the other hand, address a clear and present danger – armed attack. To do so they put compatriots in danger, not enemy civilians, gain their consent and only let them die when their enemy proves intransigent. By these counts, human shielding is superior to conventional deterrence. If the latter is a permissible strategy of war, then so is the former.

Human shielding is neither decisive nor effective in all situations. Fears that state armies are unable to fight shields are unfounded. Human shields are only effective when guerrillas can bring large numbers of civilians to shield targets of less than overwhelming military significance. Shields will not protect a missile launcher primed to fire. This was clear from the latest round of fighting in Gaza. Nevertheless, shielding has its legitimate uses. Arms depots, mid-level command headquarters, communication sites are all amenable to effective shielding that provides guerrillas with a low cost and effective tactic to counter the military might of their adversaries.