Since the Defense Department published its new Law of War Manual, major media outlets have scrutinized its treatment of journalists while ignoring its treatment of ordinary civilians. I applaud Neve Gordon and Nicola Perugini for drawing further attention to the DOD’s position that harm to civilians forced to serve as human shields can never render an attack unlawfully disproportionate, no matter how great the expected harm to those civilians or how small the anticipated military advantage. I challenged the merits of this position in an earlier post, to which Gordon and Perugini refer in passing.
Gordon and Perugini ask: “Why does the Law of War Manual suddenly include clauses dealing with human shields? Why in 2015 and not before?” Gordon and Perugini hypothesize that these clauses were introduced to “legitimize the increasing deaths of civilians on the battlefield” especially following “the so-called ‘War on Terror’ and new US military occupations.” I hope to shed some light on this question, albeit from a different angle.
The manual’s provisions on human shields closely track a 1990 law review article by W. Hayes Parks titled Air War and the Law of War. Parks, by most accounts, was a principal author of the manual from its inception in 1996 until his retirement in 2010. I suspect that Parks and his colleagues incorporated his views directly into the manual, likely at an early stage and without significant amendment. I find this possibility deeply disturbing. In my view, Parks’ article did not reflect customary international law as it was in 1990. Certainly, the manual does not reflect customary international law as it is today.
In his 1990 article, Parks quotes himself for the proposition that
c. Excluded in determination of collateral civilian casualties are: … civilians injured or killed as a result of the enemy placing them around a lawful target in an effort to shield it from attack. (p.174)
Putting the same position in different terms, the manual asserts the following:
Harm to the following categories of persons and objects would be understood not to prohibit attacks under the proportionality rule: … (3) human shields.
Importantly, the manual shares not only Parks’ substantive position — that human shields count for nothing under the proportionality rule — but also Parks’ underlying rationale. In his article, Parks writes that
While an attacker facing a target shielded from attack by civilians is not relieved from his duty to exercise reasonable precautions to minimize the loss of civilian life, neither is he obligated to assume any additional responsibility as a result of the illegal acts of the defender. Were an attacker to do so, his erroneous assumption of additional responsibility with regard to protecting the civilians shielding a lawful target would serve as an incentive for a defender to continue to violate the law of war by exposing other innocent civilians to similar risk. (p.163)
In strikingly similar terms, the manual states that
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.
If the manual reflects Parks’ views then the manual rests on an unstable foundation. In a forthcoming article on the manual, I spend some pages examining Parks’ 1990 article, arguing that it contains a series of legal and logical errors. Rather than summarize those arguments here, I will simply suggest that any statement of customary international law written in 1990 should be viewed skeptically in 2015. State practice and opinio juris — including that of the United States — evolved in the intervening decades. The manual “is intended to be a description of the law as of the date of the manual’s promulgation.” In my view, the manual describes a law of war that no longer exists, if it ever did.
To its great credit, the US Joint Chiefs of Staff maintained the opposing, legally correct position — that civilians forced to serve as involuntary human shields retain their ordinary legal protection under the proportionality rule — from 2002 to 2013 (see here, here, and here). In other words, the Joint Chiefs did not seek “to legitimize the increasing deaths of civilians on the battlefield” even at the height of “the so-called ‘War on Terror’ and new US military occupations.” It is a great pity that the manual reflects Parks’ view rather than that of the Joint Chiefs (not to mention that of all of our major military allies).