In a series of interventions, Adil Ahmad Haque and Charlie Dunlap have debated the Defense Department Law of War Manual’s position on human shields (here, here, and here). Claiming that the manual does not draw a distinction between voluntary and involuntary human shields, Haque maintains that it ignores the principle of proportionality, thus permitting the killing of defenseless civilians who are used as involuntary shields. Dunlap, however, insists that the manual includes all the necessary precautions for protecting civilians used as shields by enemy combatants, and argues that the adoption of Haque’s approach would actually encourage the enemy to increase the deployment of involuntary human shields. The two scholars clearly disagree on a number of legal issues, and yet they both treat human shielding as an ahistorical phenomenon and therefore fail to address a much more fundamental question: Why does the Law of War Manual suddenly include clauses dealing with human shields? Why in 2015 and not before?

At first glance, this might seem like an irrelevant question. However, if one considers that human shields were neither mentioned in the 1956 Department of the Army Field Manual, which preceded the new manual, nor in much more recent manuals published by the DOD (such as the 2009 US Army/Marine Corps Counterinsurgency Field Manual, where human shields are extremely relevant), it becomes clear that the introduction of human shields clauses in the new manual has great legal and political significance.

This is not to say that DOD has never mentioned the use of human shields in its manuals. In the 2005 Law of War Handbook, one clause is dedicated to human shields, but it is significantly different from the clauses in the new manual. It reads: “Civilians may not be used as ‘human shields’ in an attempt to immunize an otherwise lawful military objective. However, violation of this rule by a party to the conflict does not relieve the opponent of the obligation to do everything feasible to implement the concept of distinction.” But, other than that, DOD has not weighed in on the use of human shields until its latest manual.

This becomes even more striking once one takes into account that human shielding is not a new phenomenon and, at least theoretically, could have appeared in all the previous manuals. Already by 1867, immediately after the Civil War, Gen. William Tecumseh Sherman explained the advantage of using human shields on the battlefield. He wrote:

[I]f torpedoes [land mines] are found in the possession of an enemy to our rear, you may cause them to be put on the ground, and tested by wagon loads of prisoners, or if need be, by citizens implicated in their use. In like manner, if a [land mine] is suspected on any part of the road, order the point to be tested by a car-load of prisoners, or citizens implicated, drawn by a long rope. Of course an enemy cannot complain of his own traps.

During World War II, the Allies bombed Nazi trains carrying ammunition even though they were aware that civilian prisoners were being used to shield the trains from aerial attacks. Indeed, immediately following the war, at the Military Tribunal at Nuremberg, German armed forces were accused of human shielding. In Vietnam, the killing of hundreds of thousands of civilians spurred international legal debates (on the eve of the 1977 Additional Protocols to the Geneva Conventions) about the status of civilian populations in wartime and their use as shields. And, in the 1990s, Saddam Hussein’s and Slobodan Milosevic’s use of human shields garnered considerable media attention.

Given this long history, the question of why human shields suddenly appeared in the 2015 Law of War Manual urgently needs to be addressed. Our counterintuitive hypothesis is that human shields are not only being deployed as a weapon of the weak against high tech states (the underlying assumption of both Haque and Dunlap), but that the legal phrase “human shield” has also been mobilized by strong states to legitimize the increasing deaths of civilians on the battlefield. This has become especially true following the so-called “War on Terror” and new US military occupations.

To better understand our claim, it is crucial to acknowledge the exponential increase in civilian casualties in warfare, which is due both to the development of modern weaponry and to the fact that, following decolonization, non-whites have acquired the previously denied status of civilians; therefore, their deaths have also begun to be counted. The increasing civilian death toll has, in turn, led to the emergence of firmer protections through various international conventions, all of which categorize wanton civilian deaths as a war crime. Despite these legal innovations, the arenas of war continue to expand, while more and more civilians are being killed, including by liberal western armies. And it is precisely in this postcolonial legal and political setting that the US and other western governments want to preserve a position of moral superiority.

This, we suggest, is the reason why the category of human shield has acquired such an important role. The manual states:

5.5.4 [I]n 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. 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. However, the ability to discriminate and to reduce the risk of harm to the civilian population likely will be diminished by such enemy conduct. In addition, such conduct by the adversary does not increase the legal obligations of the attacking party to discriminate in conducting attacks against the enemy.

Insofar as human shielding limits the ability to discriminate, it legitimizes the increase of harm to civilians. Therefore, even if the manual would have explicitly stated that the killing of civilians framed as human shields should be subjected to the principle of proportionality (Haque’s suggestion), the main problem would not have been resolved because when a person on a battlefield is defined as a human shield — a vulnerable civilian body that willingly or even unwillingly becomes a technology of warfare whose function is to render a military target immune — he or she irreversibly loses some of the protections traditionally assigned to civilians by international humanitarian law (IHL). Once IHL draws a distinction between civilians and human shields (whether voluntary or not), this distinction can easily be marshaled to relax the test of excessive injury to civilians — meaning that the principle of proportionality works differently when civilians are framed as shields.

Several liberal commenters and even prominent humanitarian institutions believe that a distinction between civilians and human shields is important. Legal scholar Yoram Dinstein writes that the “appraisal of whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that—if an attempt is made to shield military objectives with civilians—civilian casualties will be higher than usual.” Even the International Committee of the Red Cross claims, in a manual entitled Fight it Right, that the “attacking commander is required to do his best to protect [human shields] but he is entitled to take the defending commander’s actions into account when considering the rule of proportionality.” Killing human shields is, in other words, not the same as killing civilians.

A slightly different line of argument, whose consequences also underscore the implication of framing civilians as human shields, has been voiced by several just war theorists from Michael Walzer to Asa Kasher. Analyzing Israel’s recent wars in Gaza, Walzer and Kasher concur that Palestinian human shields are indeed civilians, but they maintain that even though Israel killed them, the country is not responsible for their deaths. Hamas, these just war theorists aver, shoulders a double responsibility: for attacking Israeli civilians and for the deaths of Palestinian civilians it uses as shields.

In this context, it is not surprising that the new Law of War Manual introduced human shielding clauses. The manual provides the US military with a new tool, allowing it to construe enemy civilians as human shields. Irrespective of the question of proportionality and its case-by-case interpretation, the manual enables as well as justifies a higher degree of violence and “collateral” damage during warfare. From this point of view, the introduction of the human shield clauses should be understood as the introduction of a legal technology that shields the strong from potential accusations of having committed war crimes.