Friday, June 25, 2021

  • Friday, June 25, 2021
  • Elder of Ziyon


In 2018, Congress passed the ‘‘Sanctioning the Use of Civilians as Defenseless Shields Act’’. It is meant "To impose sanctions with respect to foreign persons that are responsible for using civilians as human shields, and for other purposes."

Orde Kittrie, writing for Foundation for Defense of Democracies, argues that Hamas used human shields during the 11 day war in May, and therefore President Biden (or his delegates) should invoke this act and put further sanctions on Hamas.

This should be a slam dunk. The ICRC, in its Customary IHL Database, defines human shields this way:

The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.
This means that Hamas, by purposefully placing military targets in civilian areas in order to dissuade Israel from attacking them, is clearly guilty of "using the presence of civilians to render areas immune from military operations."

But the examples given do not include the purposeful placing of military targets among civilians. 
Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks. The military manuals of New Zealand and the United Kingdom give as examples the placing of persons in or next to ammunition trains. There were many condemnations of the threat by Iraq to round up and place prisoners of war and civilians in strategic sites and around military defence points. Other condemnations on the basis of this prohibition related to rounding up civilians and putting them in front of military units in the conflicts in the former Yugoslavia and Liberia. 

These seem to indicate that Hamas must coerce civilians to protect military sites, or at the very least not allow them to leave, to be guilty of human shielding. 

Placing military targets among civilians is still a war crime - mentioned as such in the Rome Statute Article 8 (2) (b) (xxiii) - but it is unclear if it is considered human shielding. The ICC's explanation of that law indicates that it is:

Article 8 (2) (b) (xxiii)
War crime of using protected persons as shields

Elements

1. The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict.

2. The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations.

3. The conduct took place in the context of and was associated with an international armed conflict.

4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

I cannot find a clear answer on whether placing military objects in civilian areas is human shielding. The wording of the ICRC and ICC explanations indicates it is, but no one mentions this an an example. 

However, the Shields Act of Congress seems to limit itself only to cases where people are actively placed in danger:

Each foreign person that the President determines, on or after the date of the enactment of this Act— ... (A) is a member of Hamas or is knowingly acting on behalf of Hamas; and

(B) knowingly orders, controls, or otherwise directs the use of civilians protected as such by the law of war to shield military objectives from attack. 

 Hamas has done this in the past - threatening people not to leave an area after Israel dropped leaflets warning them to leave - but I have not read about any coercion in last month's war, which the Shields Act seems to require for sanctions.

It seems that Hamas did commit the crime of human shielding last month - we saw tunnels deliberately built under apartment complexes, schools and shops - but did not violate the conditions mentioned in the Shields Act.

It seems the Shields Act needs to be re-written to include the more expansive definition of human shields.









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