Daesh’s inhumanity seems to know no bounds. For its latest depravity, the group has forcibly expelled hundreds of civilians from nearby villages and forced them to serve as involuntary human shields in Mosul. At the same time, Daesh is forcibly preventing the residents of Mosul from fleeing the city, using them as involuntary human shields as well. It should go without saying that using civilians as human shields flagrantly violates the law of armed conflict.
Unfortunately, the Statute of the International Criminal Court (ICC) recognizes using civilians as human shields as a war crime when committed in international armed conflict but not when committed in non-international armed conflict. Accordingly, even if Iraq were to submit itself to the ICC and transfer Daesh fighters for prosecution—or if some Daesh fighters are nationals of a party to the ICC—their criminal liability may depend on the classification of the conflict. Alternatively, domestic prosecution remains possible, as well as prosecution before an ad hoc international or hybrid tribunal.
What are the legal obligations of the US and its partners to Iraqi civilians forced to serve as involuntary human shields?
As Just Security readers know, I think the US Joint Chiefs of Staff were correct in 2002, 2007 (quoted below), and 2013:
a defender may not use civilians as human shields in an attempt to protect, conceal, or render military objects immune from military operations or force them to leave their homes or shelters to disrupt the movement of an adversary. In these cases, the civilians have not lost their protected status and joint force responsibilities during such situations are driven by the principle of proportionality as mentioned above. In such cases, otherwise lawful targets shielded with protected civilians may be attacked, and the protected civilians may be considered as collateral damage, provided that the collateral damage is not excessive compared to the concrete and direct military advantage anticipated by the attack.
On this view, US and coalition forces must weigh the harm that they reasonably expect to inflict on civilians—including involuntary human shields—against the concrete and direct military advantage that they reasonably anticipate from an attack. If a military target is very important (say, a senior Daesh commander), then collateral harm to many civilians may be proportionate. If a military target is not very important (say, a single Daesh fighter), then collateral harm to many civilians would be disproportionate.
Unfortunately, in 2015 the US Department of Defense issued its Law of War Manual, which states that “[h]arm to the following categories of persons and objects [including human shields] would be understood not to prohibit attacks under the proportionality rule.” It seems that, according to the Manual, it would be lawful to kill scores of Iraqi civilians forced to shield targets of little military importance. As Just Security readers know, I find this view both legally and morally indefensible. Since I have written an article on various problems with the Manual, I won’t belabor the point here.
Fortunately, we have good reason to believe that US forces do not and will not follow the Manual in practice. For one thing, our coalition partners reject the Manual’s view on this point. We also have the expert insight of the recently retired Richard Jackson, Former Special Assistant to the U.S. Army Judge Advocate General for the Law of War Matters (his comments start at 23:19 in the video below) :
I believe that our armed forces have the integrity and good sense not to follow the DoD down this moral blind alley. The UN High Commissioner for Human Rights has said what we all know to be true, namely that Daesh “has no regard for human life.” The law does. We must.