Letter to the Editor: Human Shields in the DPH Guidance

[Editor’s Note: Ryan Goodman responds to Professor Haque’s letter to the editor in a subsequent post.]

In his recent post, Ryan Goodman writes that the ICRC adopts the view that all voluntary human shields (as Goodman defines them) are direct participants in hostilities and thus valid military targets, citing page 56 of the DPH Guidance. With respect, this is incorrect.  According to the DPH Guidance, civilians directly participate in hostilities when they voluntarily create physical obstacles to military operations (p.56), but not when they are merely voluntarily present in or near military objectives (p.57).  In addition, the DPH Guidance indicates that civilians who are merely voluntarily present in or near military objectives do not thereby lose their legal protection from excessive incidental harm, although as a factual matter they “are particularly exposed to the dangers of military operations and, therefore, incur an increased risk of suffering incidental death or injury during attacks against those objectives” (p.57).

Since Palestinian civilians in or near Hamas targets do not create physical obstacles to IDF air and artillery strikes it follows that, according to the ICRC, these civilians are not directly participating in hostilities.  The IDF may not deliberately target these civilians, must take all feasible precautions to avoid harming these civilians, and may not foreseeably inflict excessive incidental harm on these civilians.

Adil Ahmad Haque is a Professor of Law at the Rutgers School of Law.  

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