Portal de Periódicos da CAPES

Israel’s Human Shields Defense

2015; Duke University Press; Volume: 30; Issue: 4 Linguagem: Inglês

10.1215/08879982-3328817

2164-0041

Ovadia Ezra,

International Law and Human Rights

The israeli-palestinian confrontation has reached the phase where no one seems to care any longer about jus in bello (justice in the course of warfare), let alone reducing the levels of brutality. Restoring trust or fidelity between the belligerents seems irrelevant to the parties concerned—the most we can hope for is restoring sanity, especially with regard to mercy and sensitivity toward human life and suffering. However, such a process requires sincere and honest efforts currently unavailable, so it seems the only way to restore a semblance of restraint is to force both sides to follow the requirements of international law. In this category I include the Geneva Conventions (and their additional protocols), the Hague Conventions, and first and foremost, the Rome Statute of the International Criminal Court.I concern myself here with one particular example of the aggression and brutality of the conflict: the Israeli accusation that Palestinians used civilians as human shields during “Operation Protective Edge,” the Israeli military’s code name for the confrontation that raged in the summer of 2014. This accusation, and the actions that the Israeli army attempted to justify with it, make clear the desperate need for belligerents in Israel/Palestine to abide by jus in bello as it is defined by international humanitarian law.There is no doubt about the most conspicuous and disturbing characteristic of Operation Protective Edge: both sides totally ignored noncombatant immunity. There was, however, no symmetry, no moral equivalence. The Palestinians routinely lobbed mortar shells and primitive missiles toward Israeli towns, cities, and settlements. By way of stark contrast, Israelis used the latest fighter-bombers, assault helicopters, artillery, tanks, and gunboats against Palestinian targets. Both sides acted indiscriminately. However, Israeli citizens were somewhat protected by bomb shelters and other secure spaces. In addition, a very efficient antimissile system known as the “Iron Dome” intercepted over 90 percent of the primitive Palestinian weapons. Civilians in Gaza, on the other hand, were totally exposed to bombing and shooting.Not surprisingly, the numbers and proportions of casualties sustained by each side are significantly different. According to the UN (BBC, September 1, 2014), seventy-two Israelis (sixty-six soldiers and six civilians) and one Thai citizen were killed. The UN also reported that at least 2,104 Palestinians died, including 1,462 civilians (among them 495 children and 253 women). Although an Israeli government official told the BBC that 1,000 “terrorists” were killed, the UN figures suggest that 69 percent of Palestinian deaths were of civilians.In short, by ignoring noncombatant immunity, Israeli operations indiscriminately destroyed much of Gaza’s life-sustaining infrastructure. The UN estimates that around 18,000 housing units were destroyed or severely damaged, leaving 108,000 Palestinians homeless. These events merit a separate discussion, one devoted to determining the circumstances that compelled the Palestinian decision to attack civilian targets first (for example, the lack of discriminate or accurate weapons, particularly for long distances, or their complete military inferiority, which caused them to choose guerrilla fighting tactics, etc.). However, I am interested here in analyzing just one part of this broader picture: the political context of the Israeli accusation that Palestinian insurgents used civilians—if not the Gazan infrastructure itself—as a human shield. The Israeli Ministry of Foreign Affairs claimed that Palestinians tried “to prevent the Israeli Air Force from attacking operatives’ houses” and from attacking other targets of military value by resorting to the use of human shields.Before returning to a consideration of Operation Protective Edge and Israeli allegations about the use of human shields, a brief survey of the origins of this tactic in combat will be helpful for understanding the prohibition against using human shields in warfare, and the limitations and restraints this prohibition imposes on combat.The logic of using a human shield is grounded on the assumption that your enemy respects the conventions of war. These conventions, according to Michael Walzer’s Just and Unjust Wars, “rest more deeply on a certain view of noncombatants, which holds that they are men and women with rights and that they cannot be used for some military purpose, even if it is a legitimate purpose.” This idea requires, first and foremost, that “noncombatants cannot be attacked at any time. They can never be the objects or the targets of military activity.”Walzer’s view is a reasonable interpretation of Article 51 of the Additional Protocol I to the Geneva Convention, adopted June 8, 1977, which declares that 1) “the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations,” and 2) “the civilian population as such, as well as individual civilians, shall not be the object of attack.” Article 13 of Additional Protocol II reiterates both of these injunctions.An exception is sometimes claimed to these international accords: in the event that noncombatant immunity is strictly respected by one belligerent, the other belligerent—especially when it suffers from military inferiority—may use civilians as human shields, to prevent the other side from attacking targets whose damage or destruction might cause noncombatant injury. In my view, such a use of civilians is one of the most blatant violations of the declaration of the 1899 Hague Convention, which refers to noncombatant immunity. This exception exploits noncombatants.The prohibition against using civilians as human shields is anchored in several other legal sources, such as the Third Geneva Convention, Article 23, which mandates that “no prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.” Additionally, the Fourth Geneva Convention, Article 28, mandates that “the presence of a protected person may not be used to render certain points or areas immune from military operations.” Finally, Article 12 of additional Protocol I to the Geneva Convention insists, “Under no circumstances shall medical units be used in an attempt to shield military objectives from attack.”Moreover, the Rome Statute of the International Criminal Court, Article 8, states that it is a war crime to utilize “the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.” Perhaps the most relevant prohibition regarding the use of civilians as human shields in a military operation is Article 51 of Additional Protocol I. This paragraph states:Moreover, the Customary International Humanitarian Law, Rule 97, specifically refers to human shields and prohibits their use. Accordingly, such tactics are condemned.But did the Palestinians actually use civilians as human shields? Reporters in Gaza at that time said they did not see any evidence that would have supported Israeli accusations in this regard. Anne Barnard and Jodi Rudoren wrote in The New York Times (July 24, 2014), “Nothing is ever so clear in the complex and often brutal calculus of urban warfare. There is no evidence that Hamas and other militants force civilians to stay in areas that are under attack.” A similar claim was raised by Jeremy Bowen (The New Statesman, July 22, 2014), who “saw no evidence during [his] week in Gaza of Israel’s accusation that Hamas uses Palestinians as human shields.” On the other hand, Barnard and Rudoren admit that “it is indisputable that Gaza militants operate in civilian areas, draw return fire to civilian structures, and on some level benefit in the diplomatic arena from the rising casualties. They also have at times encouraged residents not to flee their homes when alerted by Israel to a pending strike and, having prepared extensively for war, did not build civilian bomb shelters.”At this juncture, I will not dig deeper into the legal dispute about whether civilians should be coerced into becoming human shields. At this point, a neglected question emerges: could Hamas have used open spaces or unpopulated areas for its military forces to reduce the huge number of casualties? Israeli forces failed to ask: did Gazan civilians have anywhere to escape while Hamas launched missiles from their neighborhoods?The answers to these questions may be found by examining a map. The population of the Gaza strip is approximately 1.8 million people, and its total area is 360 square kilometers. For the sake of comparison, the largest U.S. military base, Fort Bragg, occupies 163,000 acres, or about 650 square kilometers—nearly twice the area of Gaza. Forty-three percent of this dense population is composed of children under fourteen. These data, together with some other details (for example, there is no airport or naval port from which civilians can leave the area) demonstrate a tragic situation in which people cannot find shelter or escape to a safer place. They are, de facto, confined to their houses and neighbor-hoods. In Gaza City, for example, the only open space to which people can escape is the beach. According to Reuters (July 16, 2014), children playing soccer on Gaza’s beach were bombed by an Israeli ship. Four of them died.What’s salient is that the people in Gaza were not moved or forced by anybody to serve as human shields. What’s tragically overlooked is that they could not move anywhere else while Hamas launched missiles and rockets from their vicinity. In some sense they became virtual hostages of Hamas—there were no other options. However, they could have been relatively safe if Israeli attacks had been discriminate and precise. A reasonable and precautionary response by the Israeli military forces could easily have reduced the number of noncombatant casualties. The fact that the Israeli army (according to Haaretz, August 15, 2014) indiscriminately fired at least 32,000 artillery shells shows that the Israelis ignored thousands of civilian casualties. Likewise, Israeli forces cavalierly demolished houses and civilian infrastructure. Gaza civilians were de facto hostages—helpless victims of indiscriminate Israeli tactics.Could Israel’s indiscriminate tactics be justified by those who accept the doctrine of “military necessity”? Walzer explains that this doctrine “justifies not only whatever is necessary to win the war, but also whatever is necessary to reduce the risk of losing, or simply to reduce losses or the likelihood of losses in the course of the war.” However, the overall number of casualties and losses cannot be justified by saving the lives of Israeli troops. There was no existential threat to Israel.Another possible justification for Israel’s indiscriminate tactics could have been “the doctrine of double effect.” As Walzer explains,It is permitted to perform an act likely to have evil consequences (the killing of noncombatants) provided the following four conditions hold:The Israelis may claim that the direct effect they anticipated was destroying the launchers and putting an end to the launching of missiles toward Israel. However, reference to missile launch statistics reveals no significant changes in the numbers of missiles launched toward Israel over the fifty days of the operation. So this justification fails. Another possible effect may have been the killing of Hamas fighters, but this claim is not consistent with the Israeli assertion that most of the fighters and commanders were hiding in underground bunkers and shelters. The only vulnerable victims were the noncombatants.With no good justification, Israel tried to blame the Palestinians for the disastrous killing of civilians by arguing that they were used as human shields. As I have pointed out, this is an unfair accusation, given Gaza’s geography and demography. And even if it were the case, the Israelis should have restrained their reaction and used more discriminating weapons during the course of warfare. The Rome Statute of the International Criminal Court could thus be used to accuse Israel of causing war crimes by failing to do so. For example, Article 8, Section 2 (b) in part defines as war crimes any actions ofTo be sure, these are not the only protocols that could be used to define the Israeli indiscriminate bombing as war crimes. Even if we accept the accusation that Palestinian civilians were exploited as human shields, a question remains: what should the Israelis have done? As Asa Kasher, the author of the IDF ethics code, argues in the Jewish Review of Books (Fall 2014), “Human shields may be attacked together with the terrorists, but attempts should be made to minimize collateral damage among them, even though those who act willingly are, in fact, accomplices of Hamas.”And what of the claim that Hamas was the first to violate the war conventions? Even if this were the case, a simple precept of ethics should be clear: two wrongs do not make a right. Using human shields does not justify another violation of the conventions of war in response. Both violations should be judged, but I think that the number of noncombatant casualties on the Palestinian side strongly suggests that Israelis intentionally hit civilian targets—a crime worthy of the World Court’s attention.