The Use of Human Shields in Contemporary Armed Conflicts

The 21st century has brought about multiple problems for democracies engaged in armed conflicts. One such major problem that has caught the attention of international humanitarian watchdogs is the use of civilians as human shields during hostilities. Despite existing regulations, the modern-day battleground has shifted closer to urban areas, with high density of civilian population. This, as a result, has drastically increased the involvement of civilians in hostilities, so too their use as ‘human shields.’ The use of civilians as human shields has become a significant instrument in waging contemporary armed conflict, a type of warfare that ‘relies on the belligerent’s observance of international law.’1 States such as India, which typically consider most international treaties and conventions as ‘non-binding obligations’ – to be fulfilled whenever possible,2 has popularized the international discourse of international law being marginalized by states working towards ‘national security.’ Contemporary international armed conflicts have witnessed a rise in the use of human shields for states to achieve military advantages, as observed in the case of Russia and Ukraine, Israel and Palestine, and India and Kashmir. Multiple accounts of data recorded by the United Nations from the Office of the High Commissioner for Human Rights (OHCHR) and other human rights groups indicate the use of civilians as ‘human shields,’ however, over the past few decades, the international community has failed to address as a matter of fact that, ‘the human shield charge has been routinely used by warring parties in numerous theatres of violence as a preemptive legal defense to justify the killing of civilians.’3

According to international law, using human shields constitutes a war crime, while the party responsible for the death of human shields is not the one killing them – if the attack is proportionate – but instead, the one deploying them. Article 51(7) of the 1977 Additional Protocol I states that, ‘the presence or movement 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, favor 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 attack or to shield military operations.’4

In light of the above mentioned accountability, Russia has accused Ukraine of committing war crimes and using human shields. Earlier this year, Russian authorities accused Ukraine of holding a group of 6,000 Indian students and other foreign nationals as ‘human shields.’ Meanwhile, in July, 2022 a UN report from OHCHR further confirmed that the Ukrainian Army is purposefully putting civilians in harm’s way as ‘human shields.’ The human rights group’s researchers found that Ukrainian forces were using some schools and hospitals as bases; they were firing near houses and sometimes on those living in residential flats.5 These claims have been debunked by the Ukrainian authorities. Ukraine’s Deputy Defense Minister referred to it as ‘distorting the real picture’ and failing to understand the situation on the ground.6 However, following Article 51(7) Additional protocol, these accusations ultimately give space to the Russian claim that it is not legally responsible for the civilians it kills. The human shield accusation has actually become an increasingly common defense when states act immorally during conflicts. The events of Russia-Ukraine war demonstrate the length of legal ambiguities of who should be held responsible for this, as David Crane, a former American Defense Department official and a veteran of numerous international war crime investigations said that, ‘the bottom-line rule is that civilians cannot intentionally be targeted. The Ukrainians placed those people in a situation which was a killing zone. And you can’t do that.’7

The tragedy in this case is that the use of human shields is not a new phenomenon, Gordon and Perugini in their book Human Shields: A History of People in the Line of Fire thoroughly describe the strategy of human shielding as dating back to the American Civil War, the Franco-German war and remaining present in the most recent conflicts involving states such as Saudi Arabia, Syria, Israel, Sri Lanka, and India that have deployed the argument to justify high civilian casualties in recent years. Unwinding almost 150 years of conflict, Gordon and Perugini identify the loopholes in international law that become apparent when it struggles to balance humanitarian protections with legitimation of military attacks.8

Much like the humanitarian crisis being developed in the Russian Ukraine conflict, the recent escalations of Israeli attacks on Palestine has raised accusations of Israeli forces using human shields. Up until 2005, the use of Palestinians as human shields by the Israeli forces was a common practice that was made illegal by international law in 2005.9 However, since then, not only has the Israeli defense ministry repeatedly argued to reverse this verdict (in particular to its application on the occupied West Bank) but also extensive evidence has been produced to show that Israeli forces have continued this practice, most recently observed in a report released by Defense for Children International Palestine (DCIP).10

There are then states like India, who as mentioned previously, consider international treaties as ‘non-binding obligations’, allowing the state to justify violations in the conduct of war. Over the years of its occupation of Kashmir, India has recurrently shown unwillingness to protect laws favoring human rights. India is a signatory to the Geneva Convention; however, it has not signed the Additional Protocol. This shows hesitation on the part of the Indian State to implement any laws favoring the protection of human rights. To further legitimize its actions, the Indian Armed Forces Special Powers Act 1990 states: ‘…for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death…’11 Many reports have suggested that the generalized use of the word ‘force’ has granted the armed forces through this Special Powers Act a range of disproportionate powers and has actually encouraged Indian Armed Forces to take more brutal actions.12

Regardless of the increase of using human shields without the question of proportionality and military advantage in the contemporary warfare, there has unfortunately been no real discussion of how, over the past decade, the human shield charge has been routinely used. The state of recent actions shows that the belligerent forces have exploited the legal ambiguities to rationalize their own acts of violence making further note that, ‘human shields have emerged as one of the key legal figures marshalled to legitimize the use of lethal force against innocent people.’13 The lack of international response and the lack of international actors problematizing the frequent use of human shielding in contemporary conflicts has now normalized the use of force against those protected by law. With countless examples reiterating decades of problematic human shielding accusations, the international muteness on this issue has perhaps created a ‘customary legal consensus.’14 Without serious reconsiderations and amendments these laws will prove to emerge as a tool of manipulating the rule of proportionality and legitimize force against innocent people.

About the Author

Verda Ahmed

The author is a Junior Research Fellow at Roads Initiative.