“Active” Human Shielding and the Law of Armed Conflict
To counter Israel Defense Force (IDF) superiority, Hamas long ago adopted the strategy of human shielding, one widely condemned as unlawful (see, e.g., here, here, and here). But reports have also emerged concerning an alleged practice by some IDF ground units labeled the “Mosquito Protocol,” in which Palestinian civilians in Gaza reportedly have been compelled to enter dangerous areas ahead of soldiers.
An in-depth New York Times (NYT) report on the practice published last October is of particular note. The NYT reported that
Detainees have been forced to scout and film inside tunnel networks where soldiers believed fighters were still hiding. They have entered buildings rigged with mines to find hidden explosives. They have been told to pick up or move objects like generators and water tanks that Israeli soldiers feared concealed tunnel entrances or booby traps.
In one incident, a 17-year-old Palestinian detainee was supposedly forced to walk handcuffed through rubble in Khan Younis, searching for explosives before IDF soldiers moved through the area. The NYT concluded that “Israeli soldiers and intelligence agents throughout the war in Gaza have regularly forced captured Palestinians … to conduct life-threatening reconnaissance missions to avoid putting Israeli soldiers at risk on the battlefield.”
Unfortunately, allegations of such conduct continue to surface (see, e.g., here, here, here, and here). For instance, in late March, CBS News interviewed an IDF soldier who claimed that his commander ordered his unit to use civilians instead of dogs to search buildings for booby traps. When the unit’s soldiers protested, they were ordered to do so.
The Israeli military has responded to the allegations by noting that its own directives and guidelines “strictly prohibit the use of detained Gaza civilians for military operations.” Accordingly, the IDF has launched criminal investigations, as required by the law of armed conflict (LOAC) (see Schmitt). While the extent to which this so-called Mosquito Protocol is in widespread or systemic use is uncertain, there is no denying that the number of reports is especially troubling.
Most of the human shielding by Hamas has been “passive” in nature, in the sense that the presence of civilians is exploited by Hamas fighters to prevent Israeli attacks or to create a situation in which the IDF will be condemned for conducting an attack resulting in high civilian casualties. Classic examples include intentionally traveling among civilians and operating from residential buildings (see a previous analysis here).
In this post, we examine the other side of the coin, “active” human shielding, from the perspective of LOAC and international criminal law. In such situations, an armed force actively uses civilians or other protected persons to act in a manner that shields or otherwise directly supports their military operations.
It must be cautioned that our purpose is not to assess individual allegations against the IDF but rather to examine the law that applies to active human shielding more generally. We leave it to those with greater access to the facts to draw their own conclusions regarding IDF conduct. Moreover, at the outset, we must caution that the classification of the conflict is a matter of some dispute, as is the question of whether Gaza is under belligerent occupation. Although we consider the conflict non-international (see here), it is not unreasonable to view it as international in character and occupied, at least in part (see, e.g., here). Therefore, the analysis that follows examines the law applicable in each of these cases, highlighting the limits on its reach.
The Law of Shielding Generally
It is unquestionable that LOAC prohibits human shielding as a general matter. Indeed, numerous LOAC treaty provisions expressly ban such practice. Of key relevance during international armed conflict is Article 28 of Geneva Convention IV (GC IV), which prohibits the use as shields of “protected persons,” a term encompassing civilians “who, at a given moment and in any manner whatsoever, find themselves in the hands of a Party to the conflict or Occupying Power of which they are not nationals” (art. 4). As explained in the article itself, “[t]he presence of a protected person may not be used to render certain points or areas immune from military operations.”
Article 28 was a response to the widespread use of civilians as shields in occupied territory during the Second World War. A 1958 Commentary to the article offers the examples of “belligerents compelling civilians to remain in places of strategic importance (such as railway stations, viaducts, dams, power stations or factories), or to accompany military convoys, or again, to serve as a protective screen for the fighting troops.” Because all three examples involve “compelled” actions, as distinct from merely taking advantage of the presence of civilians, they constitute active shielding akin to the incidents highlighted in the introduction to this post.
Not only does the prohibition bind parties to GC IV, it is recognized as reflecting customary international law. Indeed, the International Court of Justice has labeled the fundamental rules set forth in the 1949 Geneva Conventions as “intransgressible principles of international law” (Nuclear Weapons Advisory Opinion, para. 79; see also Israeli Supreme Court, Public Committee against Torture, para. 4). While the Court was not addressing human shielding as such, it appears clear that using those individuals qualifying as protected persons under GC IV in that manner undeniably violates the article’s customary LOAC rule counterpart.
More recently, the 1977 Additional Protocol I to the 1949 Geneva Conventions bans the practice for parties to the instrument during an international armed conflict (IAC) (Israel and the United States are not parties). Specifically, Article 51(7) provides
The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.
The article applies to the whole civilian population, not just those civilians benefiting from the protection of GC IV, Article 28. Obviously, active shielding involves favoring one’s own military operations and impeding those of the enemy. Indeed, the essence of active shielding is to protect military operations by identifying threats before they unfold. An International Committee of the Red Cross (ICRC) Commentary to the provision also makes the point that the term “movements” includes that which “takes place in accordance with instructions from the competent authorities” (para. 1988), which would apply to compelling individual civilians to proceed ahead of one’s own forces.
There is no provision directly on point in the treaty law governing non-international armed conflicts (NIAC). However, Common Article 3 to the 1949 Geneva Conventions requires that “persons taking no active part in hostilities … shall in all circumstances be treated humanely.” Among the examples cited in the article are “violence to life and person.” It is at least arguable that active shielding qualifies, for it places the individual involved at significant risk of death or serious injury, even though it is not the shielding that is the violent act causing harm. The only practicable purpose of such use is to preclude risk for the soldiers involved by transferring that risk to civilians. The article was originally intended to address NIACs but is now acknowledged to extend to IAC (see Dinstein’s explanation, para. 148).
For parties to the instrument, Article 13 of Additional Protocol II, which applies to certain NIACs in which an organized armed group controls significant territory (art. 1), similarly requires humane treatment. In particular, “civilians enjoy general protection against the dangers arising from military operations.” It is self-evident that the active use of civilians as shields in dangerous situations would violate this provision, although it must be noted that neither Israel nor the United States is party to the Protocol.
In our view, however, it is beyond question that the prohibition on human shielding reflects customary international law regardless of conflict characterization. The ICRC has asserted such in Rule 97 of its Customary International Humanitarian Law study, stating that “the use of human shields is prohibited” during both IACs and NIACs. It is an assertion well-supported by the treaties, other instruments, military manuals, national legislation, verbal practice, and national and international case law cataloged by the ICRC to support the rule’s customary status (see, e.g., U.S. Department of Defense (DoD) Law of War Manual, § 5.16; San Remo NIAC Manual, § 2.3.8).
Beyond shielding as such, LOAC prohibits compelling the participation of civilians in military operations. Article 23(h) of the Regulations annexed to the 1907 Hague Convention IV notes that a “belligerent is … forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country.” This prohibition extends to any national of the enemy but only applies during an IAC. Note that violation of the rule occurs through mere compelled participation; there is no requirement, as with shielding (see below), of an intent to render anything or anyone immune from enemy operations. Active shielding plainly violates the prohibition, as it involves compelling civilians to perform functions that members of the armed forces would regularly carry out. In the cases cited in the introduction, for example, a soldier would have had to enter a potentially booby-trapped building or tunnel had a civilian not been compelled to do so.
Along similar lines, Article 52 of the Hague Regulations bars occupying powers from demanding that the occupied population engage in activities that amount to “taking part in military operations against their own country.” The Hague Regulations are generally considered to reflect customary international law (Nuremberg International Military Tribunal Judgment; Nuclear Weapons Advisory Opinion, para. 80). Therefore, the prohibition extends to States that are not party to the instrument, like Israel.
A similar prohibition subsequently appeared in Article 51 of GC IV, which provides, “Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in military operations.” Like Hague Regulations Articles 23 and 52, it prohibits active involuntary use of civilians to enhance military operations or shield them, although it only applies during IACs and in occupied territory with respect to individuals who qualify as “protected persons.” The ICRC has opined in Rule 95 of its Customary International Humanitarian Law study that the prohibition applies to international and non-international armed conflicts. Based on the supporting evidence the ICRC sets forth, we agree.
In addition to violating LOAC, using civilians to shield is a war crime during an IAC. The Rome Statute, for instance, criminalizes “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” (art. 8(2)(b)(xxiii)). And Article 8(2)(b)(xv)characterizes compelling participation in military operations at the level of coercion as a war crime (see elements). It merits note that Israel is not a party to the Statute. Still, the International Criminal Court’s Prosecutor has opened investigations and issued arrest warrants concerning the conduct of both sides of the conflict, a highly controversial move (see here and here).
Though human shielding is not expressly listed as a grave breach in Article 147 of GC IV, “inhuman treatment” is, which—as discussed above—likely encompasses the active use of protected persons as shields. Further, there is case law supporting the characterization of human shielding as a war crime under customary international law (see, e.g., von Leeb (U.S. Military Tribunal, Nuremberg); Karadžić and Mladić, Blaškić, and Naletilić and Martinović (ICTY)). As such, all States could prosecute the offense under the doctrine of universal jurisdiction. Some states, such as the United States, have criminalized the use of human shields under domestic law (see, e.g., 10 U.S.C. § 950t).
Although there is no comparable provision in the Rome Statute explicitly addressing human shielding during NIACs, the Rome Statute criminalizes “violence to life and person,” which, as noted above in the LOAC context, active shielding arguably illustrates (art. 8(2)(c)(i)).
Legal Nuance Relevant to Active Shielding
Unlawful shielding has an intent requirement. As noted in the DoD Law of War Manual, “[i]n the absence of purposeful action to put protected persons and objects at risk of harm from enemy military operations, there would be no violation” (§ 5.16.2). This is critical in determining whether conduct qualifies as passive shielding. Consider the case of Hamas’s extensive operations from civilian structures. It is not unlawful to use these structures for valid military reasons, such as mounting ambushes, storing supplies, or serving as a location from which to exercise command and control, unless the building enjoys special protection, as in the case of medical facilities. However, if Hamas fighters operate from a building containing civilians in the hope that the IDF will refrain from attacking it due to their presence, the conduct is unlawful.
By contrast, in cases of active shielding, the decision to employ civilians to avoid risk to one’s forces is, by definition, intentional. Accordingly, the more legally problematic issue is the purpose of the action. This is because civilians are sometimes used not to shield soldiers from direct attack or other risks, like booby-traps, but instead for different purposes, as in the case of interrogating civilians to obtain militarily actionable information. With respect to active shielding, an interesting case is the use of civilians to warn other civilians to leave an area or to de-escalate a situation.
The Israeli Supreme Court, sitting as the High Court of Justice, addressed this issue in its 2005 Adalah v. GOC Central Command judgment. Although raising complex issues, inter alia, of occupation, conflict classification, and customary law, the case is helpful in understanding the scope of the active shielding prohibition.
Adalah involved alleged IDF active shielding similar to that mentioned in the introduction, dealing with it by reference to the law set forth above. However, it also examined the IDF’s “early warning procedure,” sometimes referred to as the “neighbor procedure” (which the IDF had discontinued by the time the case was heard). The Early Warning Directive that authorized the practice explained,
‘Early Warning’ is an operational procedure, employed in operations to arrest wanted persons, allowing solicitation of a local Palestinian resident’s assistance in order to minimize the danger of wounding innocent civilians and the wanted persons themselves (allowing their arrest without bloodshed). Assistance by a local resident is intended to grant an early warning to the residents of the house, in order to allow the innocent to leave the building and the wanted persons to turn themselves in, before it becomes necessary to use force, which is liable to endanger human life (para. 5).
To begin, the Court observed that,
a basic principle, which passes as a common thread running through all of the law of belligerent occupation, is the prohibition of use of protected residents as a part of the war effort of the occupying army. The civilian population is not to be used for the military needs of the occupying army. They are not to be ‘volunteered’ for cooperation with the army (para. 24).
The principle would self-evidently encompass involuntary active human shielding.
The Court’s conclusion is consistent with the general approach to coercion found in LOAC. For example, Article 31 of GC IV provides that during an occupation, “no physical or moral coercion shall be exercised against protected persons.” A 1958 Commentary to the article explains that it “covers all cases, whether the pressure is direct or indirect, obvious or hidden … . Furthermore, coercion is forbidden for any purpose or motive what[so]ever.” As an example, it cites as being prohibited “the custom, hitherto accepted in practice but disputed in theory, that an invasion army may force the inhabitants of an occupied territory to serve as ‘guides.’”
But what of civilians who are not being “forced”? The early warning procedure involved soliciting assistance to de-escalate the situation, minimize the risk to civilians, and secure their acquiescence. However, the court rejected the notion that those involved had consented in a manner that would render their use lawful.
[I]n light of the inequality between the occupying force and the local resident, it is not to be expected that the local resident will reject the request that he relay a warning to the person whom the army wishes to arrest. A procedure is not to be based upon consent, when in many cases the consent will not be real (para. 24).
In other words, consent in such cases is inherently suspect. The Court went even further, holding that an individual is “not permitted to waive his rights pursuant to the humanitarian law” (LOAC), in this case, the protection to which protected persons are entitled under the law of belligerent occupation (para. 23).
Of course, such cases must be distinguished from genuinely voluntary shields. The paradigmatic case is that of civilians rushing to a military objective following a warning that it is about to be attacked, a situation the Israelis have often faced. Moreover, civilians can sometimes collaborate with “enemy” forces, as when they do so for ideological or monetary reasons.
A debate has long raged over whether individuals who voluntarily shield military objectives or enemy personnel are “directly participating in hostilities” and, therefore, lose the protections to which they would otherwise be entitled under LOAC targeting rules (see symposium in the NYU Journal of International Law & Policy, vol. 42:3). In our estimation, voluntary human shields are direct participants, a position supported by the United States, Israel, and many prominent scholars (DoD Law of War Manual, § 5.12.3.4; Schmitt and Merriam, p. 118-19; Dinstein, p. 209). But whatever position one takes on the direct participation issue, it would seem incongruous to us to suggest that civilians who act voluntarily on their own accord render their actions an unlawful use of human shields. That said, for the very reasons cited in the Adalah judgment, the voluntariness must be truly genuine, not tainted by the actions of the party using them.
Concluding Thoughts
The law of armed conflict unequivocally prohibits using human shielding as a method of warfare in international and non-international armed conflicts. This prohibition includes active human shielding, whereby civilians or other protected persons are used to shield or otherwise support military operations. Accordingly, the Israeli military’s decision to initiate investigations into the so-called Mosquito Protocol is consistent with its obligations under international law. Taking action to ensure its forces do not engage in active shielding in the future is not only a further legal obligation, but also an endeavor of strategic consequence.
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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.
Major Alex Hernandez is an active-duty Army judge advocate and a military professor assigned to the Stockton Center for International Law in Newport, Rhode Island.
The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: IDF Spokesperson’s Unit
