On January 8, four hours after launching ballistic missiles at two Iraqi military bases hosting U.S. armed forces, the Iranian military shot down Ukraine International Airlines flight 752. Apparently, a single Iranian officer spotted the plane but could not identify it as civilian or military. After trying for less than one minute to obtain guidance from his command center, he fired two anti-aircraft missiles at the plane, killing all 176 people onboard.
In an earlier article, Evelyne Schmid persuasively argued that, by downing the passenger plane, Iran likely violated the law of armed conflict in two ways. Iran was required to take ‘active’ precautions, most importantly, to do everything feasible to verify that the plane was not civilian and to refrain from attack in case of substantial doubt. Iran was also required to take ‘passive’ precautions to protect civilians under its control, in this case, by suspending civilian flights while its armed forces were on high alert for incoming U.S. aircraft and missiles.
Why didn’t Iran suspend civilian flights? According to a new report by the New York Times,
Gen. Amir Ali Hajizadeh, commander of the Guards’ Aerospace Force, said later that his units had asked officials in Tehran to close Iran’s airspace and ground all flights, to no avail.
Iranian officials feared that shutting down the airport would create mass panic that war with the United States was imminent, members of the Guards and other officials told The Times. They also hoped that the presence of passenger jets could act as a deterrent against an American attack on the airport or the nearby military base, effectively turning planeloads of unsuspecting travelers into human shields.
Like the failure to take active and passive precautions, using civilians as human shields violates the law of armed conflict. Unlike the failure to take active and passive precautions, using civilians as human shields is also a war crime. This post examines some important legal questions raised by the reported facts, building on an earlier exchange with Schmid and human rights lawyer Gissou Nia.
Paradigmatically, the use of civilians as human shields involves intentionally moving civilians near specific military targets (‘active’ shielding) or intentionally moving specific military targets near civilians (‘passive’ shielding). Typically, this involves taking specific action to change the status quo. The Iranian case seems different. It seems that Iran failed to take specific action (suspending flights) to change the status quo (flights operating more or less as usual).
Perhaps things are not as they seem. After all, each time Iranian air traffic controllers approved a civilian flight for takeoff, that specific action changed the status quo for that plane. True, Iranian air traffic controllers did not approve any particular plane for takeoff with the intent that its flight path shield a specific military target. But perhaps the reported intent of Iranian officials—to use the general movement of civilian aircraft to deter U.S. airstrikes on several potential targets—can be imputed to each specific approval. Alternatively, perhaps the general operation of the airport amounts to a continuous action by Iran, to which the same reported intent may be imputed.
Be that as it may, I want to develop the more intuitive thought that the decision by Iranian officials not to suspend civilian flights, with the intent to deter U.S. airstrikes, unlawfully used those civilians as human shields. The conduct and intent of the same officials is then imputed to Iran as a State. Importantly, the conduct and intent of the same officials may also ground their individual criminal liability. On this approach, Iran and its officials used civilians as human shields by omission.
In general terms, if a State (i) fails to take passive precautions to protect civilians under its control (ii) with the intent to use their presence or movements to shield military targets from attack, then that State unlawfully uses those civilians as human shields by omission. This approach reflects a general principle of law: an omission to perform a legal duty is legally equivalent to an action.
If Iran resists this approach, it may find an unlikely ally in the United States. The U.S. Department of Defense Law of War Manual states that:
The essence of this rule [prohibiting the use of civilians to shield military operations] is to refrain from deliberately endangering protected persons or objects for the purpose of deterring enemy military operations. This absolute duty to refrain from purposeful misconduct may be contrasted with the affirmative obligation that parties have to take feasible precautions to separate the civilian population … from the dangers of military operations. . . .
On the other hand, in the absence of purposeful action to put protected persons and objects at risk of harm from enemy military operations, there would be no violation of this rule.
We should reject this view. Civilians may be deliberately endangered both by purposeful action that puts them at risk and by purposeful inaction that leaves them at risk. The absolute duty to refrain from using civilians should not be contrasted with the affirmative obligation to protect civilians. Breach of the affirmative obligation, for the purpose of deterring enemy military operations, breaches the absolute duty as well.
Like the U.S., Iran has signed but not ratified Additional Protocol I to the Geneva Conventions, but remains bound by the customary international law of armed conflict. To my knowledge, no country argues that the customary rule prohibiting the use of human shields substantially differs from the Protocol I rule. Even the U.S. seems to regard the customary and treaty rules as coextensive. So let us begin with Protocol I, which provides that:
The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.
The first sentence lays down a general prohibition on using civilians as shields, while the second sentence underscores one specific application. After all, directing the movement of civilians to shield military targets necessarily uses those civilians to shield those targets. Yet the two sentences are not redundant. After all, it is possible to use civilians as shields without directing their movements, as in the paradigmatic form of passive shielding. At the same time, the first sentence does not specifically prohibit, say, ‘directing the movement of military objectives or operations near civilians in order to shield those objectives or operations from attack’. The terms, and the likely intent, seem broader. The first sentence seems to prohibit more than paradigmatic active and passive shielding. But what?
Tellingly, Protocol I comes closest to addressing paradigmatic passive shielding in article 58, regarding passive precautions:
The Parties to the conflict shall, to the maximum extent feasible:
a) … endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;
b) avoid locating military objectives within or near densely populated areas;
c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.
If a party to a conflict locates military objectives within or near densely populated areas when it could have feasibly avoided doing so, then it violates 58(b). If the party violates 58(b) with the intent to shield those military objectives from attack, then it unlawfully uses the civilians in those areas as human shields. The other passive precautions rules perform the same function, filling in the specific content of the general rule prohibiting ‘using’ civilians as human shields.
On this view, failing to remove civilians from the vicinity of military objectives, when it is feasible to do so, violates 58(a). Violating 58(a) with the intent to shield those military objectives from attack unlawfully uses those civilians as human shields. Failing to take other necessary precautions to protect civilians under your control against the dangers resulting from military operations, when it is feasible to do so, violates 58(c). Violating 58(a) with the intent to shield your military operations, or to shield yourself from your adversary’s military operations, unlawfully uses those civilians as human shields. And so on.
According to the International Criminal Court, the war crime of using protected persons as shields includes, among its elements, that the perpetrator “moved or otherwise took advantage of the location of one or more civilians.” Similarly, at least one State (Peru) understands the law of armed conflict to prohibit parties “to force civilians to shield military operations or take advantage of the movement of civilians to shield military operations.” A party that violates its precautionary duties in order to deter attacks by its adversary unlawfully takes advantage of the location or moment of civilians. It is not merely unwilling to bear the costs of their protection. It intends to benefit from their exposure to harm. It treats civilians, not indifferently, but instrumentally, not as burdens or obstacles or distractions but as opportunities to exploit for its own advantage.
In some cases, it may not be feasible to take certain passive precautions. Feasible precautions are “those precautions which are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” A precaution may be practically impossible if a party lacks the technology or expertise to take it effectively. A practically possible precaution may offer little benefit to civilians while placing the armed forces at a serious military disadvantage to the adversary. In such cases, the humanitarian considerations in favor of taking a precaution may be outweighed by the military considerations against taking it. If it is not feasible to take a precaution, then the failure to do so violates no legal obligation, and does not unlawfully use civilians as human shields.
But it was feasible for Iran to suspend civilian flights. It was obviously within Iran’s power to suspend civilian flights. Iranian officials were well aware of the humanitarian considerations in favor of doing so, as Schmid observes. Their reported fear that “shutting down the airport would create mass panic” does not, on its face, reflect a military consideration against doing so. Military considerations are simply considerations of military advantage. As one group of experts explains,
Military advantage refers only to advantage which is directly related to military operations and does not refer to other forms of advantage which may in some way relate to the conflict more generally. Military advantage does not refer to advantage which is solely political, psychological, economic, financial, social, or moral in nature.
The ‘mass panic’ feared may have been a legitimate political, psychological, or social consideration, but it was not a military consideration capable of outweighing the humanitarian considerations in favor of suspending civilian flights. Panic is temporary. Death is not.
The Iranian officials may argue that their decision was driven more by fear of mass panic than by hope of deterring U.S. airstrikes. But when Protocol I requires “primary purpose” (article 51(2)) or “sole purpose” (articles 56(5), 59(3), 60(4)) it does so explicitly. Where wrongful intention makes the difference between lawful and unlawful conduct, cases involving ‘mixed motives’ may give us pause. But where, as here, wrongful intention makes the difference between two forms of unlawful conduct, legally irrelevant motives and legally impermissible motives do not become legally exculpatory when mixed together.
Iran violated its legal obligations to take passive precautions to protect civilians under its control, with the intent that those civilians shield military targets from attack. Iran thereby used civilian passengers as human shields. The omission was unlawful. The intent was criminal. The 176 victims are lost forever. Justice is not enough. But justice is all that remains.