International Law Is Not Keeping Up With How Hamas Exploits Human Shields (Daled Amos) (UPDATED)

Hamas terrorists may very well have elevated the exploitation of human shields to an art. For years, they have taken advantage of the civilian population in Gaza by hiding among them, while targeting the civilian population of Israel with their rockets.

Now Hamas has done something new. The media would have you believe that Gazans in general, and Hamas in particular, are experimenting for the first time with peaceful protests, reminiscent of Martin Luther King and Selma. In reality, what is new is that Hamas has been using tens of thousands of Gazans -- including children -- as cover while trying to infiltrate Israel, both on land by breaching border fences and by air using kites carrying Molotov cocktails.

Palestinian child throwing rocks at IDF forces and the Gaza security fence during Gaza border riot.
Source: IDF Spokesperson's Unit)

One response to this breach of International Humanitarian Law (IHL) was reported last month, that Shurat HaDin was going to try to get the International Criminal Court to take action against Hamas:

The Shurat Hadin Israel Law Center is seeking International Criminal Court action against Hamas over the terrorist group’s use of children as human shields in the riots that have taken place over the past month on the Israel-Gaza Strip border

The Rome Statute that established The International Criminal Court is clear that violations of International Law in an international conflict include:

Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations
(ICC Statute, Article 8(2)(b)(xxiii))

But that is not the statute that Shurat HaDin is going to use.

Instead:

The lawsuit is based on a clause in the Rome Statute, the treaty that established the ICC’s work, which says that recruiting children under the age of 15 to any militant organization is a war crime.

Why?

The use of Human Shields, like IHL in general, is contested. Even putting aside that both journalists and the man on the street like to consider themselves experts to the extent that they state opinions as fact, even those who are actually expert in IHL do not agree always agree.

For example, in her article Human Shields in International Humanitarian Law: A Guide to the Legal Framework, Beth Schaack, Visiting Professor in Human Rights at Stanford Law School writes about the Geneva Convention:

The presence of a protected person may not be used to render certain points or areas immune from military operations. GC IV, Article 28. This rule applies to civilians as well as combatants who are hors de combat, such as prisoners of war. No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations. GC III, Article 23. Note: the Geneva Conventions in general protect only those individuals who are “in the hands of a Party … of which they are not nationals,” which may limit their application to individuals who are utilized as human shields by their co-nationals. GC IV, Article 4. (emphasis added)

In other words, based on the wording of the Geneva Convention, when IHL forbids the use of Human Shields, it is talking about using citizens of the enemy country - not one's own citizens.

The actual wording of the relevant article of the Geneva Convention would seem to bear this out:

DEFINITION OF PROTECTED PERSONS
ARTICLE 4

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

Going a step further, based on the above, since Hamas is not a party to the Geneva Conventions, could it be that Gazans are not protected by the Geneva Convention from being used as Human Shields even if it applies to nationals?

I asked Dr. Robert P. Barnidge about this. He is Lecturer and Coordinator of International Relations at Webster University and Affiliated Professor at the University of Haifa. He is also the author of Self-Determination, Statehood, and the Law of Negotiation: The Case of Palestine. Dr. Barnidge clarified some of the points:

• Parties to an armed conflict, be the armed conflict an international armed conflict or a non-international armed conflict, cannot lawfully use human shields.
• While Hamas is not a High Contracting Party to the Geneva Conventions, meaning that it's not bound by the terms of the General Conventions, it's nonetheless bound by customary international humanitarian law.
• According to Rule 97 of the ICRC's Customary International Humanitarian Law Study, there is nothing to suggest its non-applicability when a state's own nationals are being used as human shields.

This law study is the interpretation of the Geneva Convention by the International Red Cross. Reading Rule 97, it is clear that the law regarding Human Shields applies across the board to both non-nationals and nationals.

This is important because while it’s true that the Geneva Conventions only bind states, in practice, the interpretation of the Geneva Conventions by the ICRC "holds a certain persuasive weight".

So far, so good.

But the Dr. Barnidge also pointed out:

• Although the authority of the ICRC could be seen as an extension of the same mandate the ICRC has from the signatories to the Convention, the ICRC’s interpretation of the Geneva Conventions is not binding per se. 
• The interpretation of International Humanitarian Law principles in practice is a contested terrain.

No one is going to argue against the ICRC and claim that an army is allowed to simply treat all civilians as combatants and attack them. However, there are variables such as the degree of participation in hostilities and the ability to distinguish civilians from combatants.

Keep in mind that in a previous post, What does the ICRC say about civilians rioting in support of a military objective? we saw that experts differed on the paradigm to be applied in the case of Human Shields -- the conduct of hostilities, law enforcement or a combination of the two.

Maybe the lack of absolute clarity in the area of Human Shields explains why Shurat HaDin is pursuing the lawsuit in terms of the recruitment of children, an issue more likely to generate a consensus from the ICC.

Shurat HaDin, in fact, has been working to shed light on the intersection of International Law and War. It has been holding conferences - "Towards a New Law of War."

In 2015, during one panel, "Confronting the Challenge of Human Shields: When Civilians Protect Weapons," Colonel Richard Kemp, suggested a solution to the problem of Human Shields. According to the summary of Col. Kemp's presentation:

How to stop the use of human shields? “Most people agree that the way to deter kidnappers is not to pay ransom, or grant them the concessions they demand,” he said. “The only reason kidnapping continue” is that “ransoms are paid and concessions are met,” he said.

“It’s exactly the same with human shields,” which “work very effectively,” Kemp said. “The only way to stop them is to stop their effectiveness.”

Militaries must be less deterred by human shields, he said, cautioning that “I’m not in any way advocating the unlawful slaughter of civilians on the battlefield, even when they are human shields.” In situations involving human shields, militaries should allow for greater collateral damage than they would normally accept. [emphasis added]

Watch the segment below, excerpted to play the relevant portion of Col Kemp's presentation:



He goes on to examine how the Rome Statute might allow for more leeway.

Yet, three years later, we seem no closer to a military-legal solution of how to deal with Human Shields in a way that will dissuade their use.

On the other hand, Hamas has refined their use, incorporating civilians into riots on Israel's borders to provide cover for terrorism -- riots that the media is all too willing to present as peaceful protests.

But don't give Hamas all of the credit.

Maj. Gen. (res.) Gershon Hacohen writes about this new strategy of using civilians for stategic goals:

Over the past decade, the use of civilians as an operational stratagem has assumed a major role in conflict zones. For instance, the Russian government is using local separatists from the civilian population to spearhead the warfare in the Ukrainian region of Donetsk. Similarly, Beijing is making use of thousands of civilian fishing boats in its efforts to extend its sovereignty over the South China Sea. The combined use of civilians at the overt level and of the military system at the covert level, in a supportive secondary effort, is what has given this phenomenon its elusive characteristics. In the West, this is described as “hybrid warfare.” Russian military thinking, which sees an inherent advantage in the ambiguity stemming from combining civilians and soldiers, refers to this phenomenon as the “warfare of the new generation.”

He goes on to describe to what has become known in the military world as the "Gerasimov doctrine." The Russians used this new strategy in Georgia, Crimea and Ukraine, where military force was used in combination with civilian activity. For example, in Georgia the pro-Russia citizens of Georgia seized tunnels and bridges on the expressway leading to the capital, Tbilisi. This enabled armed forces to enter the north of the country.

Screenshot of General of the Russian Army Valeriy Gerasimov

He concludes with a comparison with Hamas:

Against this backdrop, the images arriving from the confrontation along the Gaza fence need not be interpreted as IDF units suppressing civilian protests but as IDF forces protecting the kindergartens and civilians of the Nahal Oz and Kerem Shalom kibbutzim, which are about 200 meters from the fence and under threat from a terror organization in civilian guise.

Gerasimov himself writes in The Value of Science Is in the Foresight: New Challenges Demand Rethinking the Forms and Methods of Carrying out Combat Operations

The focus of applied methods of conflict has altered in the direction of the broad use of political, economic, informational, humanitarian, and other nonmilitary measures—applied in coordination with the protest potential of the population [emphasis added].

Colonel Kemp's suggestion, seemingly extreme when he first offered it, may no longer be enough just 3 years later.

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