http://www.commondreams.org/views/2016/08/30/human-shields-preemptive-legal-defense-killing-civilians
Published on
Tuesday, August 30, 2016
by
Common Dreams
Human Shields as Preemptive Legal Defense for Killing Civilians
by
Neve Gordon, Nicola Perugini
An aerial image shows civilians leaving the town of Manbij, Syria,
purportedly with Isis using the convoy as a shield for their
retreating fighters. Photograph: SDF
Human shields have been making headlines for some time. Before the
recent fray between ISIS and Iraqi governmental forces in Fallujah,
the United Press International released an article entitled “Iraqi
forces halt Fallujah advance amid fears for 50,000 human shields.”
Indeed, not a day has passed in the last several months without an
array of newspapers mentioning human shields in different theatres of
violence: from Syria, where ISIS fighters fled Manbij in convoys
apparently using human shields, through Kashmir, where “army and
police used civilians as human shields in operations against
militants,” to Ukraine, where pro-Russian separatists were accused of
using international observers as shields.
Moreover, the phrase human shields is not only used to describe the
use of civilians in the midst of war, but also to depict civilians in
protests from Ferguson in the US to Zimbabwe and Ethiopia.
The trope is promulgated by an array of actors. Liberal democratic
states are not the only ones who are warning the world of the
increasing use of human shields; rather authoritarian regimes as well
as a variety of local and international organizations of different
kinds, from the Red Cross and human rights NGOs to the United Nations
are also invoking the term. In a recent confidential United Nations
report, Houthi rebels were blamed for concealing “fighters and
equipment in or close to civilians with the deliberate aim of avoiding
attack.”
Allowing killing
Although different forms of human shielding have likely been mobilized
since the invention of war, its quotidian use is a completely novel
phenomenon. Why, one might ask, has this term suddenly become so
pervasive?
Legally speaking, human shields refer to the use of civilians as
defensive weapons in order to render combatants or military sites
immune from attacks. The idea behind the term is that civilians, who
are protected under international law, should not be exploited to gain
a military advantage.
While most people will undoubtedly be familiar with this definition,
less known is the fact that international law not only prohibits the
use of human shields but also renders it legitimate for militaries to
attack areas being “protected” by human shields.
The US Air Force, for example, maintains that "lawful targets shielded
with protected civilians may be attacked, and the protected civilians
may be considered as collateral damage, provided that the collateral
damage is not excessive compared to the concrete and direct military
advantage anticipated by the attack." Along similar lines, the 2015
Department of Defense Law of War Manual underscores the importance of
the principle of proportionality, it also notes that, “otherwise
lawful targets involuntarily shielded with protected civilians may be
attacked… provided that the collateral damage is not excessive
compared to the concrete and direct military advantage anticipated by
the attack.”
What all this means, quite simply, is that human shields can be
legally killed so long as the deployment of violence does not breach
the principle of proportionality—which requires belligerents to
refrain from causing damage disproportionate to the military advantage
to be gained.
It now appears that police forces the world over are adopting a
similar perspective as they confront protests and riots. The
motivation behind the adoption of such guidelines by domestic and
international actors is clear: it allows security forces to relax the
rules of engagement, while framing those who deploy shields as morally
deplorable and in breach of international law.
Preemptive Legal Defense
Given the strategic and pervasive adoption of the phrase human
shields, it seems clear that the term is not only being deployed as a
descriptive expression to depict the use of civilians as weapons, but
also as a kind of preemptive legal defense against the accusations of
having killed or injured them. Put differently, if any one of
Fallujah’s 50,000 civilians is killed during an anti-ISIS onslaught,
then it is not the US-backed attacking forces that are to blame, but
rather ISIS itself, which illegally and immorally used civilians as
shields. Moreover, it increasingly appears that it is enough to
claim--in advance-- that the enemy is using human shields in order to
warrant the killing of non-combatants.
Even though it is undeniable that many militaries and non-state armed
groups do, in fact, use human shields, the potential ramifications of
the mere accusation are extremely worrisome. In other words, by
claiming that the other side is using human shields, the attacking
force provides itself with a preemptive legal defense.
To understand fully the implications of this framing it is imperative
to take into account that urban areas, as Stephen Graham from
Newcastle University put it, "have become the lightning conductors for
our planet's political violence." The fact that warfare currently
shapes urban life in many areas around the globe means that civilians
occupy and will continue to occupy the front lines of much of the
fighting. This leaves them extremely vulnerable to being framed as
human shields, since it would be enough to say in advance that the
residents of a city are shields for their deaths to be legal and
justified.
Insofar as this is the case, then the preemptive legal defense may
very well be used as part of a horrifying process aimed at legalizing
and normalizing the massive slaughtering of civilians.
This article first appeared on Al-Jazeera.
Received on Thu Sep 08 2016 - 21:07:53 EDT