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Human Shields and the DOD Law of War Manual: Can’t We Improve the Debate?

In a recent post, Prof. Adil Ahmad Haque attacked the new Defense Department Law of War Manual’s position on proportionality and human shields. Evidently, Haque thinks that the manual says that the US military “may lawfully kill an unlimited number of civilians forced to serve as involuntary human shields in order to achieve even a trivial military advantage.” Of course, that is hardly the case. In my view, we can (and must) do better in laying out the facts and the law because this debate is just too important.

Let’s begin by clarifying what the manual actually says about hostages (which is how I would categorize Haque’s “civilians forced to serve as involuntary human shields.”) The manual repeatedly makes the point that hostage-taking is prohibited by international law (e.g., paragraphs. 2.5.3.3, 5.16.3, 10.5.1.4, and 11.6.1) and that “civilians must not be used as shields or as hostages.” It also makes it clear in paragraph 5.3.2 that that civilians — including hostages — must not be made the object of an attack.

Importantly, contrary to what Haque’s post suggests, the manual does not exempt the US military from the affirmative duty “to take feasible precautions to reduce the risk of harm to the civilian population and other protected persons and objects” and to incorporate such precautions “when planning and conducting” attacks (para. 5.3.3). More specifically, the manual insists in paragraph 5.3.3.2 that a “wanton disregard for civilian casualties or harm to other protected persons and objects is clearly prohibited.” 

The manual recognizes that “in some cases, a party to a conflict may attempt to use the presence or movement of the civilian population or individual civilians in order to shield military objectives from seizure or attack.” It counsels however — and this is critical — that when “enemy persons engage in such behavior, commanders should continue to seek to discriminate in conducting attacks and to take feasible precautions to reduce the risk of harm to the civilian population and civilian objects” (para. 5.4.4) (emphasis added).

Regarding, human shields in particular, the manual states (emphasis added):

5.12.3.3 Harm to Human Shields. Use of human shields violates the rule that civilians may not be used to shield, favor, or impede military operations. The party that employs human shields in an attempt to shield military objectives from attack assumes responsibility for their injury, provided that the attacker takes feasible precautions in conducting its attack.

If the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields and allow violations by the defending force to increase the legal obligations on the attacking force.

So Haque’s heated and overstated accusation is legally deficient as there are plenty of precautions aimed at protecting civilians memorialized in the manual’s text. Regardless of where one might stand on the manual, shouldn’t we all be concerned that nowhere in his legal analysis does Haque even mention “feasible precautions” despite their being embedded (repeatedly) in the manual as a legal requirement? Isn’t that a pretty significant omission?

But I am especially troubled by Haque’s readiness to characterize the view of DOD personnel as “morally unintelligible” and to charge that their assessment as to how to best protect civilians in war as having “no obvious basis” in “morality” — however he may define that term.

It is one thing to throw the proverbial “red flag” about a provocative position another party takes, but quite another to launch an ad hominem attack by denigrating the “morality” of those who take a different view as to how to accomplish what seems to be the same end sought by Haque: the protection of civilians.

Haque dismisses DOD’s common-sense view that allowing unscrupulous defenders to succeed in deterring attacks through the use of human shields would “perversely encourage the use of human shields.”

Haque’s contends that:

[A]ttacking combatants despite the presence of involuntary shields will not make those combatants any worse off than they would have been without those shields. On the contrary, if defending forces expect additional (say, political) benefits and no additional costs from using involuntary shields then killing these involuntary shields will not deter their use.

If you accept this logic, then you are buying into the idea that even if targets come to accept that they will not be protected from attack by surrounding themselves with hostages, they will nevertheless continue to burden themselves by acquiring, guarding, feeding, housing, and otherwise supporting hostages. Moreover, they will do so even though the very presence of hostages increases their “footprint” (and therefore their chances of being detected by a variety of surveillance capabilities), diminishes their own reputation for fearlessness, risks strategic “backfire”, hardens public opinion against them, and can put them in conflict with religious beliefs. In truth, there are considerable costs to keeping human shields, especially under circumstances where they won’t, in fact, actually constitute a shield.

Nevertheless, Haque speculates that targets still would perceive that they could “expect” additional “political” benefits from keeping hostages, presumably from propagandizing hostages who might be killed in strikes. This is wrong for two reasons: 1) thanks to advances in technology, targets can no longer assume that simply being close to civilians will mean that civilians will die in an attack (consider that even though terrorists targeted in drone operations have tried to do that, civilian casualties from drone strikes are actually rare these days); and 2) even when hostages are killed in attacks (as was the case earlier this year), public support for such strikes remains strong despite concerns among the populace that the attacks could endanger the lives of innocent Americans.

Furthermore, I find Haque’s logic flawed not just because it is at odds with the hard truths of the real world, but also because it seems oblivious to the obvious moral issue his position invites: Who is to be “morally” accountable for the civilian deaths that will inevitably occur when an attack is unnecessarily forgone and the target lives on to orchestrate further mayhem against untold numbers of civilians? Indeed, how many people should we “morally” allow to be killed while waiting for the human shields to be absent?

Consider, for example, that the most recent UN report for Afghanistan found that 72% of civilian casualties were caused by “anti-government forces” (e.g., the Taliban, al-Qaeda, and others). Killing those who do the vast majority of the killing of civilians can save lives. It really can be that simple.

Experience shows that well-meaning efforts to curb the use of force can have disastrous effects on civilians. Think about the restrictions on airstrikes imposed by Gen. Stanley McChrystal in Afghanistan in mid-2009. The result? By the time he was fired a year later in June 2010, civilian casualties had jumped a heart-rending 31% entirely because of increased killings by anti-government forces. (In addition, casualties among friendly troops hit an all-time high in 2010.)

When Gen. David Petraeus took command in mid-2010, he took a different, more aggressive approach. While still scrupulously adhering to the law of war, he clarified the rules of engagement in a way that produced a tripling of the number of airstrikes. The result? The increase in civilian casualties was cut in half to 15% by the end of 2010. Under Petraeus’ more permissive interpretation of the use of force against the Taliban and other anti-government forces, the increase the following year was cut almost in half again to 8% (and losses of friendly troops fell 20%). To reiterate, although counterintuitive to some critics, restricting force by law or policy can actually jeopardize the lives of the civilians everyone wants to protect.

My sense is that some outside the US government will continue to have difficulty with parts of the manual because, among other things, they do not have the US’s 15-plus years of experience as a “specially affected state” fighting brutal engagements in some of the most dangerous places on the planet, nor do they have the kind of responsibility that only a nation-state bears for the safety and security of its citizens, its allies, and others who depend upon it.

The manual is not — and should not be — designed to win arguments in faculty lounges or editorial boardrooms: rather, it is designed to win wars in a lawful way that fully internalizes, as it says itself on several occasions, the “realties of war.”

Of course, it should be scrutinized and debated — including this thought-provoking interpretation of the application of proportionality rules — but that discussion must be informed by at least a modicum of understanding of the “realities of war” that are faced by American troops and their allies every day. And before anyone starts accusing the military of moral or legal failings, keep in mind that the public has significantly more confidence in it than in any organized religion or any legal institution (to include the Supreme Court). Debating the Law of War Manual is vitally important, but it has to be done the right way.

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About the Author

Professor of the Practice of Law and Executive Director of the Center on Law, Ethics and National Security at Duke Law School He retired from the Air Force in 2010 as a Major General.