As avid readers of Just Security may recall, last summer Professor Adil Ahmad Haque and I engaged in an animated discussion about the new Defense Department Law of War Manual’s treatment of human shields (here, here, and here).

Subsequent to this colloquy, two more notable posts appeared on Just Security about human shields. The first, with the very intriguing title Human Shields: Weapon of the Strong, is by Neve Gordon (a political scientist) and Nicola Perugini (an anthropologist). In their essay, they bring an extraordinarily useful interdisciplinary voice to the dialogue, critiquing both Haque and myself by arguing we “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?”

They also argue that “human shielding is not a new phenomenon” and go on to propose an answer to their own question by saying:

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.

Gordon and Perugini, who recently sponsored a terrific conference on this subject at Brown University, are certainly correct that human shields have been used in the past. But frequency of a particular issue arising matters when military manuals are being written. With respect to human shields, Mike Schmitt in his work on the subject says the phenomena is “endemic in contemporary conflicts,” but he also cites a quote from Jean Pictet’s celebrated commentaries on the Geneva Conventions who said at that time (1958) that such instances were “fortunately rare.” Specific phenomena are understandably treated more extensively when as they become “endemic,” purely as a matter of military practicality rather than for any untoward reasons.

Thus, military professionals who use the manual would likely not be surprised as to why it addresses human shields in more detail than did previous documents. Previous uses of human shields just did not prove to be the deterrent to attack that they have become today (this is also likely why the instances were in Pictet’s assessment, “rare”). Why the change? The truly unprecedented sensitivity to any civilian casualties that we see in current operations just did not exist in earlier eras. And that sensitivity is not due to new legal impediments per se, but it is drive by today’s policy restraints, which go beyond what the law of armed conflict (LOAC) requires.

It is easy to understand why the use of human shields has proliferated in today’s conflicts. As I discussed over on War on the Rocks, the Obama administration created — and publicized — policy standards that demand not just a determination (as international law would have it) that the expected casualties in an attack not be “excessive” in relation to the anticipated military advantage, but rather a “near certainty” that no civilian casualties will occur. I observed in that essay that while using human shields is “a serious violation of international law,” such was “hardly an impediment to al-Qaeda, especially if violating it might ensure policy-induced protection against airstrikes or other uses of force.” Though the administration said in the fall of 2014 that the restrictive policies would not apply to operations against the Islamic State, it appears that equally limiting standards have nevertheless been in place.

Predictably, given the announced policy standards, today’s adversaries have concluded that using human shields will “work” because they assume — for understandable reasons — that they will protect them from attack or give them a propaganda windfall. A Syrian activist insisted last summer, for example, that the Islamic State “uses civilians as human shields to claim that the US-led coalition is targeting innocent people during the strikes.”

ISIS’s use of human shields is an expression of a version of what I call “lawfare” whereby a party to a conflict creates the perception of illegality in order to serve a belligerent purpose. In other words, the use of human shields at various times in the past simply never developed into the reliably effective military tactic that needed to be addressed as it does today. The fact is that such abuse of civilians did not necessarily deter attackers in earlier eras, and the employers of human shields were vulnerable to having their own people treated similarly. It rarely worked then; it often works now.

Furthermore, the pervasiveness of 21st Century information technologies simply did not exist in previous wars. Belligerents lacked the technical means to exploit the deaths of the human shields as easily as can be done today. That reality, combined with the fact that in earlier eras human shields did not deter most attacks, can readily explain why human shields were not previously discussed as they are in the new manual. Personally, I have never heard anyone — let alone a military professional — ever suggest anything remotely along the “legitimize-civilian-deaths” lines Gordon and Perugini hypothesize about.

This suggests a further issue with Gordon’s and Perugini’s hypothesis: The absence of evidence that any sort of norm is arising demonstrating that “strong states” have “mobilized” the human shields phenomena to “legitimize the increasing deaths of civilians on the battlefield.” That said, it occurred to me at the conference (and from their writings), that Gordon and Perugini may be extrapolating their view of Israel’s operations in the Gaza context to a supposition about “strong states” more generally.

At the risk of oversimplification, my sense is that Gordon and Perugini have concluded that Israel has essentially declared the entire area of Gaza as one where all (or at least many) civilians are being actively used as human shields. This characterization, they seem to contend, has allowed Israel not only to declare all civilian deaths as result of Israeli attacks to be the responsibility of Hamas for illegally using human shields, but also to permit Israel to relieve itself of the targeting precautions in any proportionality analysis that LOAC would otherwise require. I don’t read the DOD manual as endorsing such a broad interpretation of human shielding, but I gather they do.

To be clear, I am not necessarily agreeing with what seems to be their interpretation of Israel’s use of force in Gaza, but if accurate, Israeli actions would be hard to square with the law. Rather, I believe that even if true, Israel’s actions are not themselves enough to establish an international norm vis-à-vis human shields. Personally, I view much of the legal aspects of the Israeli-Palestinian situation as sui generis, and of limited LOAC application beyond its rather specific and unique circumstances.

In any event, as the far as the US is concerned, it instituted policies — as wrong-headed (albeit well-intended) as they may be — that are plainly the opposite, i.e., they are aimed at the quixotic goal of a “near certainty” of zero civilian deaths, not any “legitimization” of them. These overly restrictive policies — expressed in rules of engagement — have actually inhibited the application of force against, for example, ISIS that would otherwise be permitted by the LOAC. (After the Paris terrorist attacks, the administration is now considering loosening the rules for the air campaign against ISIS that has not been as aggressive as it needs to be in order to defeat the organization.)

Moreover, since 9/11, it has been the case that the vast majority of civilian casualties have not been caused by “strong states.” To the contrary, it is non-state adversaries (whose disregard for the LOAC typically goes beyond merely the unlawful use of human shields) who are overwhelmingly responsible. For example, in its August 2015 report about civilian deaths in Afghanistan, the UN “documented a 78 per cent increase in civilian casualties attributed to Anti-Government Elements from complex and suicide attacks and a 57 per cent increase in civilian casualties from targeted killings.” The UN also “attributed 94 per cent of all civilian casualties from targeted killings to Anti-Government Elements.”

Such facts just don’t support the idea that the US as a “strong state” is responsible for “increasing civilian deaths on battlefields.” Indeed, as grim as the statistics are, they serve as an empirical counterpoint to any American effort at “legitimization” of civilian causalities. To the contrary, it is evidence that the view of human shields as reflected in the manual is not interpreted or used by US forces to accomplish the nefarious end Gordon and Perugini allege, notwithstanding whatever may be the case with the Israelis.

The second of the new postings on this topic was by Haque himself. While he applauded Gordon and Perugini’s essay, he went on to speculate that the current manual’s approach to human shields is sourced in a 1990 law review article authored by the renowned LOAC expert Hays Parks. Suffice it to say, there is no evidence to support the notion that Parks — who retired from government in 2010 — had anything to do with this section of the manual (even assuming Haque is correct in his analysis of the Parks article). As I have pointed out previously, the language to which Haque objects comes from a 1991 State Department response to the ICRC. Unless Parks or a manual drafter says something different, Haque’s contention remains in the realm of imagination.

Haque also claims that the manual’s “position” is that “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.” Yet nowhere does he cite any text that explicitly reflects this alleged “position.” More importantly, it diametrically conflicts with the manual’s many statements (e.g., para. requiring attackers — including in situations where human shields are involved — to take all feasible precautions to prevent harm to civilians. In connection with “feasible precautions,” the manual cites with approval the US’s 1992 Final Report on the Persian Gulf War conclusion that a “nation confronted with callous actions by its opponent (such as the use of ‘human shields’) is not released from its obligation to exercise reasonable precaution to minimize collateral injury to the civilian population or damage to civilian objects” (page 198, footnote 84).

Regarding proportionality, in an essay I am writing for the Stockton Center for the Study of International Law, I offer a construct about human shields that considers the proportionality analysis certainly differently than Haque — and perhaps even different than the manual’s drafters. Briefly, I suggest that where the object of an attack is a military force employing human shields, and the military necessity for the attack rests not so much on the desire to halt the use of human shields because it is an inhuman and illegal action, per se, but rather because the use of human shields has become in a given conflict has become a regularized, explicit, and effective method of warfare for a particular enemy, the calculus necessarily changes, and perhaps even dramatically so. There is some precedent for this view: In his book on targeting, Bill Boothby, while not addressing the approach I take, nevertheless observes that in an attack on a military object protected by human shields, “the increased numbers of expected civilian casualties will not necessarily be excessive given the deliberate placing of civilians there.”

Consequently, the proportionality analysis as to what might be “excessive” in order to achieve that specific anticipated military advantage (that is, halting the enemy’s use of a tactic that may have shown real military success in discouraging the use of force against them to include by coalition partners), would fit within that extant mandate of the manual to do everything “feasible” to avoid harm to civilians. In short, the estimate of what might be “excessive” in the more common circumstance involving civilians (but not their deliberate employment as human shields), could be different from that made when they are being purposely used in a way that intensifies into a significant military advantage accruing to an unscrupulous defender.

This approach is related to the concept of reprisal, but not coterminous with it. Obviously, it does not involve — or permit — actually targeting human shields, but it also does not depend upon determining whether the human shields are truly voluntary or not — something that may be a practical impossibility in many or even most circumstances. Causing an adversary to abandon this method of warfare can produce a concrete and direct military advantage that also serves to protect civilians who might be employed as human shields in the future were the tactic be allowed to be effective.

There are, however, much more orthodox explanations for the manual’s approach. One is the time-honored norm of international law that there are certain categories of persons — munitions workers for example — whose proximity to an otherwise legitimate target is “understood not to prohibit attacks under the proportionality rule” (para. Furthermore, the manual restates the long-standing US view that a “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” (para.

Understandably, one might want to distinguish (as I would like to) between voluntary and involuntary human shields, but the chaos of battlefield reality is that such delineations among civilians are often not any more practicable to make than would be the case with voluntary/involuntary munitions workers in a production complex. Parenthetically, it is worth noting with respect to voluntariness, that the LOAC (as Butch Bracknell recently observed) makes no exception for non-volunteers conscripted or coerced into a belligerent’s armed forces. They are subject to targeting under the LOAC simply because of their status, even if it could be conclusively shown that their military service is involuntary.

Still, under the LOAC does an involuntary human shield have distinct individual rights independent of the behavior of belligerents? No, as that is simply not how the LOAC works — it mainly concerns parties to a conflict, not the private rights of individuals. Even if the LOAC was somehow rejiggered to center on individual human rights, it is not clear that the apparently preferred outcome of Haque, et al., for human shields would result because one would also have to consider the individual human rights of combatants to live, not mention the rights of civilians who would be imperiled by the continued unrestrained use of human shields.

Moreover, critics seem to want a LOAC rule that would, in effect, permit a clever and unprincipled adversary with access to enough human shields to create a legal “fortress” around all or a significant part of his critical military capability where virtually all attacks would be legally prohibited. To reward a belligerent for flaunting the LOAC in that way is flatly contrary to the principle of international law expressed in the axiom that legal rights should not be understood to result from the commission of wrongful acts.

This does not mean, as Gordon and Perugini seem to fear, that the entire battlespace can be transformed into an area where the normal proportionality rules and other precautions do not apply irrespective of the actual location of specific military capabilities. Rather, it is to simply make the point that proliferate use of illegal human shields in a militarily significant way cannot be allowed to create a force of legally-protected military objects that cannot be otherwise feasibly attacked. In this context, the “feasibility” determination would take into account how militarily important and effective the enemy’s use of human shields has become. If their use is sporadic, and the impact is only minimal in a particular situation, the “feasibility” requirement may limit an attack or even bar it altogether.

Nevertheless, the axiom is particularly relevant with respect to human shields because critics do not offer any option for militaries confronted with their systematized use as a method of war, except to expect them accept whatever setbacks and even defeats that the illicit tactic can produce. International law recognizes that states will not accept tactical or, especially, strategic defeat because of some legal construct that allows a lawbreaker to use a criminal means to achieve victory over them with impunity.

The law understands that at the end of the day, even uniquely unpalatable and undesired actions may nevertheless be required. A form of this concept, I would argue, underlays the International Court of Justice’s opinion the Nuclear Weapons case wherein the court spent considerable time decrying the weapons but finally concluded that they could not say their use, as horrific as it might be, would be illegal under extreme circumstances.

Of course, this is not to imply that the use of human shields would typically engage the exigencies of nuclear weapons employment, but it does illustrate the importance of international law — and especially the LOAC — remaining workable and sensible to law-abiding nations. A good example is how the 1936 London Charter regarding submarine warfare proved impractical in combat, and has been subsequently interpreted (not without some controversy) in a way that honorable nations are not disadvantaged.

Given that the law has proven almost totally impotent in restraining today’s adversaries who routinely violate the LOAC in exquisitely barbaric ways, we should be very sensitive to — and resistant of — any reading of the LOAC that seems to result in privileging such lawbreakers because of their lawbreaking. To do so would invite the unravelling of the LOAC regime if states conclude it produces such anomalous — and dangerous — results.

There is no doubt that human shields represent a devilishly complicated issue with no perfect answers. In many or most cases a commander would not, for policy reasons, conduct an attack where human shields of any type exist. But the DOD manual principally aims not to make fact-dependent policy decisions, but rather to describe what existing law permits. And I do think that circumstances could arise where, for example, the use of human shields escalates to the point where extraordinary action must be taken to stop their use as a means or method of warfare.

As the Paris attacks tragically illustrate, we already live in a world where the worst of humankind exhibit a stunning contempt for the law. The manual — very wisely in my judgment — avoids incentivizing further wrongdoing through the use of human shields, something which would be the inevitable result of the adoption of the critics’ views. It is imperative that the LOAC not be allowed to be manipulated by war criminals so as to give de facto immunity to their desired way of war. Such a situation would leave the fate of civilians to monsters whose very use of human shields visibly illustrates their gross indifference to human life.