In a recent development that has the potential to transform key aspects of warfare, the US Department of Defense (DoD) – in its Law of War manual published in June 2015 – explicitly countered the prevalent narrative that a distinction must always be drawn between ‘voluntary’ and ‘involuntary’ human shields in warfare. While addressing the issue of human shields, the manual does not classify the civilians in question as either those trapped against their will as hostages or those intentionally aiding the enemy as non-combatant shields, removing the need for that separation altogether in US military operations. It will take ‘feasible precautions’ as always in the conduct of war, but will not allow that distinction to control its strategic options against an enemy. The manual represents the legal views of the Department of Defense and will no doubt be subject to a lot of journalistic and scholarly attention in the days to come.
The issue of human shields is, whether we realize it or not, an absolutely central part of the public perception about war, especially in the age of social media
This might seem trivial to a lay-person, but it has enormous ramifications for the future of warfare all over the world. As an international community, our accepted standards of conduct in battle have transformed radically over the last half-century. We are no longer as understanding of the brutal realities of war and are even less tolerant of gratuitous harm and degrading treatment meted out to civilians at the hands of armed soldiers. Public discourse about war today demands that it be sanitized as much as possible, and our inherent assumption that more laws will lead to better conditions on the battlefield adds to the notion that war ought to be stringently regulated. In the case of human shields, the international practice has been that States must always determine whether the civilians involved are doing so of their own volition. If they are, they are not entitled to the protections non-combatants enjoy in conflict, since they deliberately placed themselves in danger. If they are not, the laws of war still protect them as they are not willing participants in the struggle.
While this seems laudable in theory, it has frequently led to law-abiding, democratic countries finding themselves shackled in combat, while giving ruthless insurgent groups more incentive than ever before to blur the lines between civilians and combatants. Since States are bound by international laws and pressures, their options on a battlefield have become significantly limited against adversaries who force civilians into the line of fire, while non-state actors against whom there is no mechanism to enforce the laws of war rampantly use civilians as a barrier between themselves and the adversary’s path of attack.
The issue of human shields is, whether we realize it or not, an absolutely central part of the public perception about war, especially in the age of social media. One would only have to look at the coverage of war (any war) to realize our conflict narratives are largely determined by images of dead civilians and accusations of genocidal intentions. States like Israel and Sri Lanka have often found themselves on the receiving end of widespread criticism by international human rights bodies for the large numbers of civilian deaths in their counterterrorism operations. Images of charred bodies and maimed children serve as an active recruitment platform for the modern insurgent. Human shields have thus become a useful propaganda tool in addition to being a tactical one. It gives insurgents a win-win formula. If the State proceeds with its attack, the resulting humanitarian catastrophe can be used to recruit more fighters against the State and used to portray it as a genocidal, mass-murdering war machine. If the State decides not to attack, the human shields have served their purpose as shields.
The DoD’s decisions to move away from the present consensus drew sharp criticism from some legal quarters, with accusations that its position was legally and morally indefensible. This is understandable, given that it would enable the US Army – and more importantly other countries that will inevitably follow suit – to justify direct attacks on centers like schools, hospitals and clusters of civilians fleeing the war, claiming they shielded the adversary. It would also mean civilians involuntarily used as human shields are deprived of their rightful protection even when they have not done anything to disqualify themselves from non-combatant status. A group of hostages forced to shield an armed terrorist might not have been attacked by an American soldier earlier, but it would be consistent with military doctrine to do so now.
These fears should be a serious concern for anyone interested in security, and only time will tell if they were unfounded or not. However, there is a chance – and this may seem unpalatable to some – that this departure will ultimately have a positive impact on the protection of civilians than a negative one. It robs non-state actors of their incentive to use civilians as shields and of their ‘win-win’ luxury. Taking the above example of a group of civilians used to shield a terrorist, it is indeed true that it is grossly unfair to strip them of their rights as non-combatants. But in the larger, long-term scheme of things, such people might find themselves less likely to be used as a shield, since it no longer provides that insurmountable tactical advantage in a battlefield. Insurgents require a certain amount of public support to thrive as well. If they are not protected by the presence of civilians, it is possible that incorporating unwilling civilians into their plans will no longer seem as attractive.
If the global position thus evolves in the direction the US is now headed, and we assert that culpability for all civilian deaths must lie with the party that employs shields, provided the attacker took “feasible precautions” in the conduct of the attack, this could result in a drastic decrease in the use of human shields, for strategic if not ethical compulsions. Yes, the propaganda value of endangering civilians will still exist, thus making the total eradication of the practice impossible. It could however, drastically decrease its utility and thus, its frequency. While no doubt an uncomfortable issue to grapple with, this potentially paradigm-shifting moment in the security discourse might ironically turn out to be the most significant decision in the protection of civilians in warzones. Those who protest this move as a serious attempt to undermine human rights are justified in their apprehension, but the future may not indeed be as bleak as their fears suggest.