The Status of Voluntary Human Shields in IHL: Lessons from Gaza

INTRODUCTION

Operation Protective Edge, Israel’s 2014 military operation in Gaza, involved many of the consequences of desperate and destructive urban and asymmetrical warfare that characterizes each hot flare up of the Israeli/Palestinian conflict. One of the charges often levied during the 2014 round of hostilities is the use of human shields, voluntary and involuntary, by both sides. Though the narrative of Palestinian use of human shields holds sway in most forms of media and analysis of the conflict, these allegations provide useful ground to discuss the role of human shields in International Humanitarian Law (“IHL”) generally. Reviewing the available information, the claims of use of human shields in Palestine focus on civilian volunteers who may occupy a space or building in order to disrupt Israel military decision making. These voluntary human shields demand to be properly categorized in IHL to combat any unfounded and unhelpful allegations of violations of the laws of war.

To do so, Part II of this paper reviews the background of the conflict and the claims of the use of human shields on both sides. Part III then reviews the claims made about the use of human shields and after determining that the claims of Hamas’ use of human shields was more tangential than those made against Israel and of those who acted as human shields many appear to have done so voluntarily. To understand the voluntary human shield (“VHS”) this paper then analyzes the applicable IHL provisions that apply to voluntary human shields specifically focusing on the status of civilians and combatants under Additional Protocol I (API) and the International Committee of the Red Cross’ (“ICRC”) Direct Participation in Hostilities (“DPH”) study. This analysis concludes that voluntary human shields are civilians not directly taking part in hostilities and therefore do not use their immunity from attack, nor is it a violation to call for volunteers so long as no one is compelled by force to do so. This has important impacts for the dynamic of the conflict in Gaza, so Part VI recommends that IHL commentators and experts who assist in defining the scope of the laws of war take into account the interplay between humanitarian concerns and military advantage regarding the obligations that parties have to VHS and how such actions, especially in the conditions of the Israeli/Palestinian conflict, may assist in balancing asymmetrical warfare while still minimizing causalities and destruction.

BACKGROUND

Operation Protective Edge

In 2014 Israel launched its most recent engagement in Gaza known as Operation Protective Edge.[1] Launched on the 8th of July after the end of Operation Brother’s Keeper, a previous Israeli Defense Forces (“IDF”) operation in Gaza rhetorically based on the kidnapping of Israeli teenagers by Palestinian groups,[2] the incursion into Gaza caused Hamas to turn to unguided rocket attacks which then prompted seven weeks of Israeli military operations.[3] Over the course of those seven weeks serious damage was done to Gazan infrastructure and homes.[4] The combination of urban ground fighting and heavy airstrikes also resulted in the deaths of thousands of people, the majority of which were Gazan civilians.[5]

The precise reason for the conflict remains a mystery. Ostensibly Israel wanted to stop continued rocket fire from Gaza received in response to Brother’s Keeper.[6] Conversely, Hamas’ goal was to bring international pressure to bear to lift Israel’s blockade of the Gaza Strip, end Israel’s offensive, obtain a third party to monitor and guarantee compliance with a ceasefire,[7] release Palestinian prisoners, and overcome its political isolation.[8] Whether Israel was the first to break the ceasefire agreement that had been in place since November 2012[9] or Gazan rocket fire[10] is to blame is still in dispute.

There is truth to both sides. On July 7th, Hamas admitted it fired several dozen rockets into Israel after, depending on the source, either an Israeli airstrike killed seven fighters in a tunnel in Khan Yunis[11] or an accidental explosion of munitions.[12] The operation officially began the following day and by July 17th expanded from an air campaign into a ground invasion of Gaza with the stated aim of destroying Gaza’s tunnel system.[13] Apparently completing that goal, Israeli ground forces withdrew on August 5th.[14] On August 26th, 2014 both sides agreed to an open-ended ceasefire. By that date, the IDF reported over 4,500 rockets and mortars had been fired from Gaza into Israel.[15] During the seven weeks of the operation the IDF attacked over 5,000 targets in Gaza including over 30 tunnels and a majority of Hamas’ rocket arsenal was left unavailable for use.[16] One claim that came through the fog of war was that Hamas had used human shields and civilian buildings in violation of IHL.

Background on the claims of use of human shields during the 2014 Gaza War

Both sides of the conflict have been accused of using human shields. However, the accusations differ as to how and why the shields are used. While claims of Hamas’ use remain burned into public memory, less well-reported claims of IDF use of Palestinian human shields has also been reported. What characterizes these differences is the purpose for the human shield and the intent of each person who becomes a shield. On the Palestinian side, claims of involuntary human shielding comes in the form of the use of civilian objects of military purposes which civilians may either be unaware of, or are somehow compelled to ignore that use. However, other claims of the use of human shields come about after civilian volunteers occupy spaces to change Israeli military calculations under the principles of distinction and proportionality. The IDF, on the contrary, had on occasion compelled Palestinian civilians in the proximity to a suspected target to move with IDF forces acting as interpreters or to encourage others to refrain from firing to avoid killing fellow Palestinians. Other reports have acknowledged even more egregious examples of that form of compelled cooperation with IDF operations, though much more of a rarity. Still, with both Hamas and the IDF, the use of compelled human shields is quite clearly a violation of the IHL.

Claims of Palestinian Use of Human Shields

Claims of Palestinian use of civilian persons and objects is well known. The main form of this criticism comes in two forms: use of civilian objects, and the use of or call for voluntary human shields. Some of these claims are enshrined in Congressional records. For instance, while the battle raged in Gaza in July 2014, the US House of Representatives passed a resolution condemning Hamas for using civilians as human shields.[17] It further lays blame for the conflict and the civilian deaths on Hamas and praising Israel for warning residents to flee before conducting airstrikes in civilian neighborhoods.[18] The European Union followed suit and condemned Hamas’ “calls on the civilian population of Gaza to provide themselves as human shields.”[19] These claims usually take a form such as that reported by Janis Frayer of Canada’s CTV who claims to have witnessed Hamas gunman dressed in a woman’s headscarf with a “tip of a gun poked out from under cloak.”[20]

Likely the most infamous incident of VHS occurred when on July 8th, 2014, Hamas spokesman Sami Abu Zuhri called upon Gaza civilians on Hamas-owned Al-Aqsa Television to stay put in areas under fire by Israel.[21] Though this has been cited as an example of the use of human shields, Amnesty International stated that the call to remain in place may have been “motivated by a desire to avoid further panic” among civilians after others who heeded IDF’s warnings had become casualties of Israeli air strikes and ground attacks.[22] In another event, human shields amassed to protect a home targeted by Israel.[23] According to Zuhri, witnesses reported a large gathering of people going to the Kawari family house.[24] After an Israeli drone fired a flare at the roof of the three-story home as more neighbors came to act as voluntary human shields, some even going to the roof to try to prevent a bombing.[25] Still, even with the presence of these VHS, the house was bombed not long after the flare was fired.[26] According to reports from the Palestinian Health Ministry in Gaza, seven civilians were killed in the bombing, as well as 25 others wounded, many severely.[27] Zuhri, though making no claims that those VHS were called to occupy the space, claimed that “the policy of people confronting the Israeli warplanes with their bare chests in order to protect their homes has proven effective against the occupation,” and stated it matter-of-factly: “We in Hamas call upon our people to adopt this policy.”[28]

To further bolster their claims of this practice, the IDF reported on its blog that IDF soldiers had found a manual for human shielding while fighting in Gaza.[29] In a portion entitled “Limiting the Use of Weapons,” the manual explains correctly that the soldiers and commanders of the IDF have a duty to limit their use of weapons and tactics that may lead to unnecessary loss of life and destruction of civilian facilities.[30] The manual goes on to explain that “the presence of civilians creates many pockets of resistance against advancing [IDF] troops, and this causes difficulties, such as: (1) Problems opening fire, (2) Problems controlling the civilian population during operations and afterward, (3) Providing assistance and first aid to civilians.”[31] Lastly, the manual discusses the benefits for Hamas in the section titled “The Destruction of Civilian Homes” which states such home destruction has, perhaps ironically, a positive effect as it “increases the hatred of the citizens towards the attackers and increases their gathering around the city defenders (resistance forces).” Though this narrative gained much currency in international news, another set of allegations has been levied against Israel.

Claims of Israeli use of human shields

There have been several claims of use of human shields by IDF forces in 2014. These claims usually involve a house sweep or similar operations in which the risk of surprise attack is high. Believing that the proximity of a civilian will deter a quick attack, IDF soldiers use these civilian shields less to simply stop bullets, though they certainly have been subject to such a use, but that they may also be able to either convince someone against an attack or provide real time intel in terms of what the shield may or may not tell the target of the raid. For instance, video testimony released by the Euro-Mid Observer for Human Rights, Palestinian civilian Ramadan Muhammad Qdeih recounted how on July 25th, 2014, IDF soldiers stormed his home in Khuzaa, where around sixty members of his extended family were sheltered in the basement.[32] According to Odeih, the soldiers forcibly positioned members of his family, including children, at the windows of his home and proceeded to fire from behind them.[33] In another incident, on July 23rd, 17-year-old Ahmad Jamal Abu Reeda claimed to have been restrained by Israeli troops who for five days threatened to kill him.[34] The troops ordered Abu Reeda to walk in front of them at gunpoint as they searched houses and other buildings, sometimes ordering him to dig in near areas of suspected tunnels.[35]

This practice was formerly IDF policy.[36] UN Committee on the Rights of the child released a report a year before the conflict accusing Israeli forces of using Palestinian children as human shields, and alleging that detained children in some cases face torture, solitary confinement, and threats of sexual assault.[37] This activity was specifically addressed in Adalah et al. v. GOC Central Command, IDF Judgment by the Israeli High Court which found that the IDF practice of picking a civilian at random, forcing them to protect soldiers with their body and do dangerous tasks for soldiers was a violation of its international obligations under IHL.[38] Examples of this practice include soldiers ordering Palestinians to enter buildings to check if they are booby-trapped or to remove the occupants, to remove suspicious objects from roads, stand inside houses where soldiers set up military positions, walk in front of soldiers to shield them from gunfire or to allow soldiers to fire over their shoulders.[39] Surprisingly, the soldiers in the field often did not initiate this practice ad hoc but received orders to use civilians as a means of protection from senior army officials.[40] According to defense officials, the IDF made use of the ‘human shield’ procedure on 1,200 occasions the last five years it was in use.[41]

Indeed, in 2009 Wikileaks published an Israeli government memo stating:

Individual Palestinians also testified to IDF abuses such as looting, beatings, vandalism of property and the use of the local population as human shields. But by far the strongest reverberation in Israel was that created by the Israeli organization “Breaking the Silence,” which collected testimony from 26 unnamed IDF soldiers. All of the soldiers had been involved in Operation Cast Lead in the Gaza Strip, and testified to instances where Gazans were used as human shields, incendiary phosphorous shells were fired over civilian population areas, and other examples of excessive firepower that caused unnecessary fatalities and destruction of property.[42]

The ultimate result of the review of the claims made by both sides is that Israel has a history and a former policy of using local civilians as human shields in raids and other dangerous operations. While Hamas may indeed by storing weapons in or around civilian objects, the tight, urban nature of Gaza makes such actions nearly impossible to completely avoid. Therefore, claims of compelling or forcing civilians to shield military targets must be evaluated with the available objective evidence. In doing so, one finds that these claims tend to lack much in verifiable evidence or corroboration on either side. Still, if the claims of civilian voluntary human shields were found to be justified by the evidence, their status under IHL must still be defined and compared against other concerns, both military and legal, that each side must weigh when conducting military operations such as Protective Edge.

ANALYSIS

To learn the necessary lessons from Gaza, one must first test whether the claims that raise the issue are valid. Doing so in an area as fraught with ideology, politics, disinformation, and rhetoric as the Israeli/Palestinian conflict is particularly difficult. Therefore, though some claims of the use of human shields appear to be verified, many remain seemingly unverifiable. However, assuming that the only ambiguous form of humans shielding under IHL is the voluntary human shield, understanding the difference between voluntary and involuntary human shields brings one to the borders of IHL. This is effective at determining not only where such limits are, but also how much farther they should stretch.

Veracity of the Claims of the Use of Human Shields

The New York Times conceded that despite all the rhetorical claims, “there is no evidence that Hamas and other militants force civilians to stay in areas that are under attack.”[43] The BBC’s Middle East editor at the time, Jeremy Bowen, similarly declared, “I saw no evidence during my week in Gaza of Israel’s accusation that Hamas uses Palestinians as human shields.”[44] In a 2014 interview, senior Hamas official Khaled Meshaal told CNN that the group did not use its people as human shields.[45] In interviews with Gazan refugees, reporters for The Independent and The Guardian concluded claims that Hamas forced civilians to stay in areas under attack against their misconstrue the situation.[46] Many refugees told them they refused to heed the IDF’s warnings because even areas Israel had declared safe for refugees had been shelled.[47] The Guardian reported that “dispatches from the ground have presented complex reasons why some residents did not evacuate from Shujai’iya and other areas targeted by the IDF. Many said nowhere in Gaza was safe, so they saw little point in abandoning their homes.”[48] Rather than evidence of coercion, sources reported tens of thousands of people heeding the warnings and fleeing their homes.[49] UNRWA reported that more than 140,000 people sought shelter in its properties and that these civilians feared for their lives from Israeli bombing and shelling rather than threats from Hamas.[50]

Amnesty International investigated IDF claims of human shielding conducted by Hamas and other Palestinian groups and found that no evidence showed that Palestinian civilians had been intentionally used by Hamas or Palestinian armed groups during the current hostilities to “shield” specific locations or military personnel or equipment from Israeli attacks.[51]  They did note the reports of Hamas urging residents to ignore Israeli warnings to evacuate.[52] “However, these calls may have been motivated by a desire to minimize panic and displacement, in any case, such statements are not the same as directing specific civilians to remain in their homes as ‘human shields’ for fighters, munitions, or military equipment.”[53] AI then rightly notes that even if human shields are being used, the obligations to protect those civilians under IHL would still apply as they have not lost their protection from attack.[54] This is repeated by in the UNHRC report on the conflict.[55]

Claims of Israeli use of civilians is also difficult to verify. However, unlike claims made by the IDF and Israeli government regarding Palestinian use of humans shields which come from scant evidence and no verifiable eyewitness accounts, those levied against Israel come with testimonies by the victims and witnesses which bear close similarity to one another.[56] Given the previous policy of the IDF regarding the use of civilians and the continued allowance under IDF military guidelines to employ the use of civilian “volunteers” combine to make the claims of Israeli use of involuntary human shields more believable that those levied against Palestinian groups.[57]

The Use of Involuntary Human Shields is a Violation of IHL

The human shield, though a sickening thought when assumed to be at gunpoint, has an interesting role to play in modern warfare. The reasoning behind either being or using human shields is clear: if there is sufficient civilian presence on a target subject to attack such presence would cause incidental loss of civilian life if the object was indeed attacked. Assuming such an attack was not on a purely military objective, the deaths of several civilians would be more easily be considered excessive when matched against the concrete and direct military advantage.[58]

Article 51 of Additional Protocol I states the prohibition of the use of human shields rather straightforwardly.[59] It prohibits the direction of civilians to be present at a target to prevent an attack against that target.[60] Article 51(7) echoes to the general rule of distinction between enemy combatants and military objectives with civilians and civilian objects contained in Article 48,[61] as well as Article 51(1), which provides that “[t]he civilian population and individuals civilians shall enjoy general protection against dangers arising from military operations.”[62] Indeed, Paragraph 8 of Article 51 notes that civilians that function as shields and are present at the site of an attack do not “release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians….”

Article 58 of Additional Protocol I imposes an affirmative obligation on Parties to “endeavor to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives,” which appears to complement the prohibition on using civilian shields. However, both Article 51 and 58 are qualified by the caveat “to the maximum extent feasible,” which forces an evaluation of the particular conditions of the conflict. Therefore there are two coordinated obligations regarding civilian shields: 1) to refrain from directing civilians to act as shields, and; 2) to prevent civilians from occupying military objectives by removal to the maximum extent possible.

As codified in Additional Protocol I, which only apply in International Armed Conflicts (“IACs”), these provisions cannot specifically prohibit human shielding in non-international armed conflicts (“NIACs”).[63] However, as Rule 97 of the International Committee of the Red Cross’ International Customary International Humanitarian Law study provides, “[t]he use of human shields is prohibited,” and contends the norm applies in both IAC and NIAC.[64] It further asserts that, “each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas,” and “to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives.”[65] In NIACs, the rules are “arguably” customary.[66]

Case law regarding human shields focuses on the involuntary and clearly provides that it is a violation of both treaty-based and customary IHL. For instance, in ICTY’s most recent and well-known judgment against Radovan Karadzic found the former President of the Bosnian-Serb area of Bosnia guilty of persecution for holding UN peacekeepers against their will at potential NATO air targets[67] in order to render those locations immune from NATO airstrikes in 1995.[68] It is this and the more traditional notion of shields, such as those during Operation Iraqi Freedom where members of irregular Iraqi forces often engaged Coalition forces from behind women and children many of whom were forcibly seized, which is specifically prohibited by the Articles 51 and 58.[69] These are relatively straightforward violations of IHL. What remains more difficult to categorize is the civilian volunteer who, rather than being directed, takes action on their own or answers a non-military call for volunteers to protect some object that is subject to potential attack.

The Use of Voluntary Human Shields not a violation of IHL

In order to understand the legal position of a VHS one must first review the difference between a civilian and a combatant and when a civilian loses their immunity from attack. The importance of this difference is why the ICRCs first customary rule of IHL is the principle of distinction: “The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”[70] This correlates with a related principle, proportionality, which prohibits launching an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination of those, “which would be excessive in relation to the concrete and direct military advantage anticipated.”[71]

Therefore, when discussing VHS one must first categorize the person into one of three categories: a civilian, a non-combatant, or a direct participant in hostilities. Placing the VHS in the correct class will thereby define the obligations and protections owed to the VHS. Understanding the obligation to refrain from attacking civilians and to refrain from attacks calculated to cause more civilian death and destruction than military advantage makes this categorization paramount. If the VHS never loses their immunity from direct attack, then attacking a military target protected by VHS would be a violation of the principle of distinction, but under the principle of proportionality the obligation to refrain from indirectly attacking civilians must be weighed against the military advantage gained and therefore may, under extreme circumstances, allows a serious attack which leaves untold numbers of civilian VHS dead so long as the objective is of overriding military necessity.

Civilians Defined

Rule 5 of the ICRC’s Customary IHL Study follows Article 50 of API and defines civilians negatively: a civilian is any person who is not members of the armed forces.[72] The immunity of civilians from direct attack is a general principle going back to the sharp rise in civilian deaths following the American Civil War and the Two World Wars.[73] Article 51(3) of Additional Protocol I states that civilians are absolutely immune from attack, “unless and for such time as they take a direct part in hostilities.”[74] Any member of the military, a combatant, by default cannot be considered a VHS as their status as a combatant provides neither them, nor any object used for military purposes, with immunity from attack. Therefore, one must assume that any VHS is, a priori, a civilian. But other suggestions may be made for the status of a VHS such as a non-combatant or as a DPH when they conduct VHS operations under the notion that doing so meets the required elements to lose immunity.

Non-Combatant Status

Customary Rule 3, following the general thrust of the Geneva Conventions and specifically enumerated in Article 43(2) of Additional Protocol I, defines a combatant as “all members of the armed forces of a party to the conflict …except medical and religious personnel.”[75] Medical and religious personnel are considered non-combatants. According to the First Geneva Convention, temporary medical personnel have to be respected and protected as non-combatants only as long as the medical assignment lasts.[76]  Some military manuals (such as Germany’s Military Manual) state that using a weapons system or platform is the defining characteristic of a combatant, therefore, “persons who are members of the armed forces but do not have any combat mission, such as judges, government officials and blue-collar workers, are non-combatants.”[77]  Therefore, the VHS that uses their presence and their status as a civilian, rather than any weapons system, is not a combatant under this definition. And though not usually a uniformed member of the armed forces, one may argue that the VHS is essentially “recruited” for the VHS operation and ought to be considered a member of the military forces when they answer a call.

Giving the voluntary human shield status equivalent to a non-combatant member of the opposing armed force does capture some of the nature of the contribution made by VHS, but other features are simply incoherent. While their activities have military objectives, they are not assumed to be directly involved in front-line conduct of hostilities as would a regular member of the armed forces, nor do they carry weapons. Considering VHS as non-combatants would give them the status of a member of an armed force and therefore a legitimate military target for attack, but on what basis is this claim made given the lack of weapons used by VHS?[78] While one can argue medical personnel (and to a lesser degree chaplains) are necessary for the war effort, the VHS is certainly not a requirement for the parties to the conflict, though it may provide some advantage in limited circumstances. Rather than a necessity, like doctors and medics, VHS are not consistent members of armed forces, under the control of a military apparatus or hierarchy, or specifically trained groups connected to a military structure. Considering VHSs members of the armed forces though they lack even the most basic characteristics of traditional members of armed forces is merely an attempt to bootstrap the concept of a non-combatant (with its own clear limits) specifically and only to allow attacks on what would otherwise be a civilian VHS. This simply has no basis in logic, custom, or law. Therefore, the only way to argue that VHS loses immunity from attack is to argue that the VHS is directly taking part in hostilities.

Voluntary Shields as Direct Participants in Hostilities

In 2009 the ICRC published its Interpretive Guidance on the Notion of Direct Participation in Hostilities which was the culmination of almost a decade of meetings between legal experts and military officials aimed at defining the contours of this often-confusing notion in IHL.[79] Recall that a civilian is at all times immune from direct attack, but loses this protection if they either become part of the armed forces of a party to the conflict or directly take part in hostilities.[80] Therefore, it is crucial to understand exactly what actions qualify as DPHing and thereby provide the threshold for loss of civilian immunity that involve human shielding. The DPH study outlines two main constitutive elements of DPHing: 1) a threshold regarding the harm likely to result from the act, 2) a relationship of direct causation between the act and the expected harm.[81] For the purposes of VHS the first element is most important. The ICRC guidance provides two forms of harm necessary for DPH: 1) causing harm of a specifically military nature, or; 2) by inflicting death, injury, or destruction on persons or objects protected against direct attack.[82] The second of these two is rather straightforward. The most common notion of DPHing is the civilian who picks up a rifle and fires at another party to the conflict, thus aiming at inflicting death, injury or destruction.[83] The first, in contrast, is something entirely different.

Purely military harm, rather than inflicting death and destruction, appears to be precisely calculated to combat what has become known as “lawfare.” The guidance defines military harm as “essentially any consequence adversely affecting the military operations or military capacity of a party to the conflict.”[84] The footnote explains this by way of citing wide agreement at the expert meetings in 2005 that this military harm did not necessitate the use of armed force or the causation of death, injury or destruction.[85] Indeed, instead of a limited form (which would still cover human shields) the scope of this form of harm is wide.[86] The guidance oddly focuses on issues that appear much more straightforward (“sabotage and other armed or unarmed activities restricting or disturbing deployments, logistics and communications”)[87] but fails to mention if this scope covers the VHS.

The Guidance does mention VHS in discussing the directness of harm.[88] It states it unequivocally that when “civilians voluntarily and deliberately position themselves to create a physical obstacle to military operations of a party to the conflict, they could directly cause the threshold of harm required for a qualification as direct participation in hostilities.[89] However, the Guidance then qualifies the seemingly large scope of military harm “in operations involving more powerful weaponry, such as artillery or air attacks.”[90] At least in the context of asymmetrical warfare, the ICRC states that the mere presence of VHS does not inflict the requisite military harm because it “often has no adverse impact on the capacity of the attacker to identify and destroy the shielded military objective.” Therefore military harm is defined only that which actually inhibits the ability of the adverse party to conduct its operations, not the parameters of the proportionality assessment that must be made, even if it has an adverse effect.[91] The presence of VHS inhibits the will of attacker, not the fighting ability.[92] Rather than sabotage or deliberate interference with logistical operations, VHSing merely adjusts the parameters of decision making by increasing the probability of expected incidental harm which, if excessive in relation to the anticipated military advantage, is a violation of IHL.[93] Since there is no actual inhibition of the ability of the attacker, the relationship between the presence of VHS and the resulting harm is indirect, even if their presences leads to the cancellation or suspension of an operation by the attacker.[94] As mentioned above, the VHS must recall that the nature of the objective targeted is paramount. Voluntary presence near legitimate military objectives leaves VHSs particularly exposed to the dangers of military operations and decreases the value of their presence as it may not serve to widely adjust the proportionality assessment of the attackers.[95]

Some have been critical of the ICRC’s analysis and expressed reservations at the expert meetings.[96] These critiques suggest that the guidance fails to balance military necessity with humanitarian concern.[97] However, characterizing this as a “failure to balance” suggests that the ICRC is weighting humanitarian concerns too heavily.[98] Schmitt asks why IHL would distinguish between those who physically protect a military objective (such as guards) from those who intentionally misuse the law’s protective provisions to prevent an otherwise lawful attack.[99] Perhaps it is he who misbalances the concerns of IHL. The primary motivation of IHL is teleological, to protect life and property from senseless attack, not merely existential. IHL does not exist merely to weigh the ability for one party to use force against the tactics of another, but to ensure that no one is unnecessarily killed or no building destroyed without cause. Focusing only on the military harm to the attacker compared to the relative direct physical harm to the victims of an attack is precisely what IHL attempts to avoid. Indeed Schmitt misunderstands how that principle applies to this analysis and attempts to suggest that that voluntary human shields should be treated as direct participants not because the attacker desires for the VHSs to be subject to attack, “but rather because it will preclude the inclusion of their death or injury in the proportionality calculation.”[100]

Doing so confuses the calculation as a matter of fact. Precluding VHSs from the proportionality calculation makes the necessity for such a calculation moot. Already decisions are being made that show the willingness to cause significant civilian damage, whether or not the attacker desires to attack the civilians, if the target is determined to be of such high value that the loss of civilian life is considered proportional.[101] The military necessity/humanitarian considerations balance that is so crucial to Schmitt will be, if the analysis of the guidance is ignored, wholly unbalance in favor of military necessity and will therefore result in an increased in ultimately unnecessary deaths. Even if not considered DPHing, if the military advantage of any object protected by VHS is so valuable, the presence of VHS would still not preclude the attack under the principles of proportionality and necessity and therefore provides no valid reason to re-categorizes a civilian VHS as anything other than that: a civilian.

RECOMMENDATIONS

Voluntary Human Shields are not necessarily a new phenomenon, but one that has every potential of being a factor in almost every new conflict that emerges. Partially because of the urban environment that is the scene of, or guerrilla tactics used in NIACs, the potential ease of use and value that is provided by human shields makes for there to be every incentive to use them when faced with an asymmetrical threat or in the course of some ideological or historical struggle. While one must understand the nature, role, and legality of VHS by recalling the main thrust of IHL and its main principles, the VHS presents a difficult challenge as it demands that these principles be weighed against one another and where one comes out tends to show their allegiance to one or the other principle.

While one ought not to ignore the calculus of the military planner, and the need for forces to be able to operate in their most effective capacities and in the most import locations, there should be serious doubt about the continued veracity of IHL if the humanitarian component is left subservient to the more powerful party’s military wishes. While there is a serious advantage to highly developed weapons and delivery systems, the iron will of a population may be one of the only effective counter measures. Denying this possibility wholesale limits the ability of the weaker party to, as it were, fight fire with water.

Indeed, conflicts such as those in Gaza are exactly the situations in which human shields become most effective. The serious asymmetry of the forces, the crowded urban centers which make up much of Gaza, the danger poised to the civilian population as a matter of course, and the desperation that such a conflict brings to the situation all combine to provide every incentive for the weaker side, Palestine, to use its most effective means of combating advanced Israeli weapon systems: the laws of war. However understandable and incentivized this activity may be, it does not allow military commanders or personnel to take advantage of the resolve of their people by resort to force or coercion. Nor does it allow any sort of militarily-organized brigade who receives training on techniques for human shielding. A party to conflict cannot direct civilians (either by force or coercion or incentives) to become VHS such as cash payments or at the barrel of a gun.

However, once on the scene, the armed forces of a party to the conflict have the responsibility, as much as they are able, to remove civilians from danger. This brings up a conundrum and tests the limits of IHL. If the armed forces of a party notify civilians that a certain object is to be the subject of an attack, it mandates that the other party, no doubt also notified, remove civilians from the area, but if the presence of civilians provides a military advantage through lawfare, there is little incentive to remove the civilians. Given this situation, how much force is necessary to remove the civilians? Does the qualification of the obligation only to the “greatest extent possible” presuppose that during the course of a military operation the armed forces of a state must remove VHS even if doing so presents real and present danger either by the possibility of attack from ground or air forces?

These questions are precisely why VHS must be better defined in IHL. The attempts to classify VHS in the paradigms of IHL currently simply fail to recognize the role, costs, and status of VHS in modern conflicts. Though the general principles and thrust of IHL need not be amended greatly, the scope of some of its important typological questions must be expanded or contracted given the consequences posed by so doing. Knowing the full scope of the obligations a party has to either removing or preventing VHSing would give guidance to forces engaged in such activity, rather than leaving the question open for rancorous, rhetorical redefinitions. When VHSs are involved, the need to scrupulously apply principles of proportionality and distinction by limiting the use of voluntary human shields is paramount, but may be unavoidable.

To that end, it should be clear that VHS are civilians who are neither non-combatants nor DPHing. As such they retain their immunity from attack and must be calculated for in the proportionality and distinction tests of any force planning an attack. Therefore, if a planned target is protected by VHS, they must be taken into account when determining the relative advantage of conducting the attack to military campaign and the resulting civilian deaths. Given this paradigm, there may be instances where the presence of VHS does not disallow an attack, but are considered proportional collateral damage. This must be understood in concert with the obligation to protect civilians for which VHS provide assistance. That means that a VHS must be removed from the field as soon as possible so long as doing so is militarily feasible. This qualification allows the forces to allow VHSs to perform their function only and until there is the possibility of removing them when one takes into account all circumstances ruling at the time, including humanitarian and military considerations. However, because it is the presence of VHS and the humanitarian risks of an attack that connotes a military advantage, in an urban environment like Gaza, keeping the VHS in place may be the more prudent move both militarily and humanitarianly given the dangers posed to civilians generally both by the environment of the conflict and the conduct of the both parties.

CONCLUSION

Operation Protective Edge is merely the latest round of hostilities in the Israeli/Palestinian conflict, but each time there is a flare up and kinetic force is used, allegations of violations of IHL understandably follow. In 2014 a major theme in the conflict was the use of human shields and the use of civilian objects by Hamas which, according to some, accounts for the serious loss of Gazan life during the seven weeks of fighting. All concerns about blaming the victim aside, the claims that Hamas uses human shields consistently is, though well repeated, a misnomer at best and a lie at worst. The way the issue has been reported suggests that Hamas stands behind civilians or fires rockets and other munitions from commandeered bedrooms which normally house children or the elderly. While some weapons were placed in proximity to civilian objects, rather than merely taking advantage of their protected status, these actions appear to be more out of necessity than malice aforethought. Even so, the claims of physically enforced human shielding appears to be more corroborated on the Israeli, rather than Palestinian side, as little to no evidence can be given for those claims of such involuntary shields by Hamas. What has been confirmed is the call for civilian volunteers to act as human shields for targets subject to Israeli attacks by seemingly civilian organs, and those calls being answered, thereby demanding clear categorization of those VHS and to the role and scope of VHS in IHL.

As explained above, VHS are civilians who have not lost their immunity from attack and must be considered in the proportionality calculation. As non-members of armed forces, not non-combatants such as clergy or medical personnel, or are they DPHing and thereby lose their immunity from attack by doing so. Unarmed DPHing demands a physical impediment to attack such as burning tires to block visual imaging, sabotaging rail lines, or cutting brake lines on convoy vehicles. While not inflicting death or destruction, these are directly physical impediments to the ability of a party to conduct military operations. Instead, VHS simply change the legal decision making under the principle of proportionality, and as such do not provide a physical barrier, but a test of will to the other side. However, the presence of VHS does not, on its own, prevent objects from being attacked, but rather demands that if such an attack is conducted, the military advantage gained by doing so must be overwhelming thereby making those civilians killed in such an attack proportional collateral damage.

The VHS also tests the limits of the qualification that each party to the conflict must, to the extent feasible, minimize risk to civilians. This limit demands that each side do what it can, given the humanitarian and military concerns especially when they conflict with one another, to reduce unnecessary damage and death. If the VHS is truly voluntary, and the objects which are subject to attack are assumedly not sufficiently valuable to risk the civilian casualties, then the obligation to remove the civilians, especially in urban areas, is low as their presence in sum may provide more protection than they would have generally. If the risk of attack, even with VHS present, is unknown, the party supported by VHS must do everything they can to minimize the threat of civilian casualties, including, if possible, removing them from the site. However, if this action would put both civilian and armed forces at unnecessary or disproportionate risk than if the civilian remains, then the obligation to remove the civilian bears less weight on the responsibility of the supported armed forces as it may be safer for civilians to remain as VHS. Again, this entire calculation is based on the particulars of the situation on the ground and the reasonable analysis of those fighting. While one cannot discount the role of the fog of war in allowing soldiers and commanders to make ultimately poor decisions, doing so does not absolve anyone from responsibility for actions they knew or should have known would violate IHL and mandates that those who do so be judged appropriately for their actions and decisions. Nowhere is this principle more important or more needed than in armed conflict.

[1] See e.g. UNHCR, Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict, A/HRC/29/52, June 24 2015, http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoIGaza/A-HRC-29-52_en.doc; Israeli Ministry of Foreign Affairs, 2014 Gaza Conflict (2014), http://mfa.gov.il/ProtectiveEdge/Documents/2014GazaConflictFullReport.pdf; and Israeli Defense Forces, Operation Protective Edge, IDFBlog, https://www.idfblog.com/operationgaza2014/; Michael Thomas, Operation Protective Edge The War Crimes Case Against Israel’s Leaders, Middle East Research and Information Project, Oct. 26, 2015, http://www.meriatorg/mero/mero102615; Institute for Middle East Understanding, 50 Days of Death & Destruction: Israel’s “Operation Protective Edge,” Sept. 10, 2014, http://imeu.org/article/50-days-of-death-destruction-israels-operation-protective-edge; and also Eitan Shamir, Rethinking Operation Protective Edge, The 2014 Gaza War, Middle East Quarterly, Spring 2015, http://www.meforum.org/5084/rethinking-operation-protective-edge.

[2] IDF, Operation Brother’s Keeper, IDFBlog, https://www.idfblog.com/blog/tag/operation-brothers-keeper/

[3] See IDFBlog, Operation Protective Edge at Note 1.

[4] See UNHCR Report at Note 1.

[5] Office for the Coordination of Humanitarian Affairs, Occupied Palestinian Territory: Gaza Emergency Situation Report, September 4 2014, https://www.ochaopt.org/documents/ocha_opt_sitrep_04_09_2014.pdf

[6] See IDFBlog, Operation Protective Edge at Note 1.

[7] Ehab Zahriyeh, Citing past failures, Hamas demands an enforceable cease-fire, Al-Jazeera, Jul. 16, 2014.

[8] Ed. Bd, Hamas and Israel cling to their war aims, Deutsche Welle, Jul. 23 2014

[9] James Marc Leas, Attack First, Kill First and Claim Self-Defense: Palestine Subcommittee Submission to UN Independent Commission of Inquiry on the 2014 Gaza Conflict, Council for the National Interest, Jan. 21, 2015.

[10] Ed. Bd., Hamas ‘ready for Gaza ceasefire’ if Israeli raids stop, BBC News, Jul. 4, 2014.

[11] Yoav Zitun, IDF: We uncovered Gaza terror tunnel leading to Israel, Ynet, Jul. 7, 2014.

[12] IDFBlog, Operation Protective Edge at Note 1.

[13] See Ed. Bd., Gaza conflict: Israel and Palestinians agree long-term truce, BBC News, Aug. 27, 2014; and IDFBlog, Operation Protective Edge at Note 1.

[14] See Israeli Ministry of Foreign Affairs Report at Note 1.

[15] IDF, Hamas Launches Rockets on Civilians in Gaza, IDFBlog, https://web.archive.org/web/20140822025714/http://www.idfblog.com/blog/2014/07/31/hamas-launches-rockets-civilians-gaza/

[16] Ed. Bd., Operation Protective Edge in numbers, Ynet, Aug. 27th, 2014, http://www.ynetnews.com/articles/0,7340,L-4564678,00.html

[17] Denouncing the Use of Civilians As Human Shields By Hamas and Other Terrorist Organizations in Violation of International Humanitarian Law., H.R. Res. 107, 113th Cong. (2014) (enacted) (“Whereas  Hamas  has  urged  the  residents  of  Gaza  to  ignore the  Israeli  warnings  and  to  remain  in  their  houses  and has  encouraged  Palestinians  to  gather  on  the  roofs  of their homes to act as human shields”).

[18] Id.

[19] Council of the European Union Press Release, 3330th Council meeting of EU Foreign Affairs, 12091/14, Jul. 22, 2014.

[20] Ed. Bd., Hamas Intimidates Press in Gaza Strip, Times of Israel, Jul. 29, 2014, http://blog.camera.org/archives/2014/07/hamas_intimidates_press_in_gaz_1.html

[21] Ed. Bd., Hamas spokesman calls on Palestinians to create human shields, Palestinian Media Watch, 14 Jul. 2014, https://www.youtube.com/watch?v=jbKcw6BkKEo

[22] Amnesty International, Israel And The Occupied Palestinian Territories: Israel/Gaza Conflict, July 2014 (Report), Jul. 17, 2014.

[23] Daniel Greenfield, Hamas Spokesman Urges Gazans to Act as Human Shields for Hamas Leaders, Front Page Mag, Jul. 9, 2014, http://www.frontpagemag.com/point/235946/hamas-spokesman-urges-gazans-act-human-shields-daniel-greenfield.

[24] Id.

[25] Id.

[26] Id.

[27] Steven Erlanger and Fares Akram, Israel Warns Gaza Targets by Phone and Leaflet, New York Times, Jul. 8, 2014, http://www.nytimes.com/2014/07/09/world/middleeast/by-phone-and-leaflet-israeli-attackers-warn-gazans.html?_r=0

[28] See Greenfield at Note 23.

[29] Captured Hamas Combat Manual Explains Benefits of Human Shields, IDFblog, Aug. 4, 2014, https://www.idfblog.com/blog/2014/08/04/captured-hamas-combat-manual-explains-benefits-human-shields/

[30] Id.

[31] Id.

[32] Ed. Bd., Euro-Med Documents Israel’s Use of Human Shields in Gaza, Euro-Mediterranean Human Rights Monitor, Aug. 10, 2014; Rania Khalek, Israeli army uses Gaza children as human shields, Electronic Intifada,  Aug. 11, 2014, https://electronicintifada.net/blogs/rania-khalek/israeli-army-uses-gaza-children-human-shields

[33] Id.

[34] Ed. Bd., Euro-Med Documents Israel’s Use of Human Shields in Gaza, Euro-Mediterranean Human Rights Monitor, Aug. 10, 2014.

[35] Id.

[36] See Adalah et al. v. GOC Central Command, IDF Judgment, HCJ 3799/02, High Court of Israel (Israeli defense leaders put a halt to the policy after a petition was filed to the High Court of Justice by several civil society and human rights groups demanding a judgment on the legality of the policy).

[37] UN Committee on the Rights of the Child, Concluding Observations On The Second To Fourth Periodic Reports Of Israel, Adopted By The Committee At Its Sixty-Third Session (27 May –14 June 2013), CRC/C/ISR/CO/2-4, Jul. 4, 2013 (“The State party’s soldiers have used Palestinian children to enter potentially dangerous buildings ahead of them and to stand in front of military vehicles in order to stop the throwing of stones against those vehicles as observed by the Special Rapporteur on the Promotion  and  Protection  of  Human  Rights  and  Fundamental  Freedoms  while  Countering Terrorism (citing A/HRC/6/17/Add.4, para.48); (b)Almost  all  those  using  children  as  human  shields and  informants  have remained unpunished and that the  soldiers convicted for having forced at  gunpoint a  nine-year old child to search bags suspected of containing explosives only received a suspended sentence of three months and were demoted”).

[38] Adalah et al. v. GOC Central Command, HCJ 3799/02 (ruling that the military’s use of Palestinian residents as “human shields” is unlawful and contradicts the provisions of international law: following a petition filed by seven human rights organizations in this matter, the HCJ banned the use of civilians to conduct arrests and the army must not bring Palestinian residents into an area of belligerent activity, even if they consent. Additionally, in light of the extreme disparity between the military and that the Palestinian residents, a resident’s “consent” cannot be regarded as genuine consent.).

[39] B’Tselem, Background on Human Shields, Jan. 1st, 2011, http://www.btselem.org/human_shields.

[40] Id.

[41] Id.

[42] Israeli Secretary of State, IDF To Investigate Complaints Of Criminal Conduct By Its Forces During Operation Cast Lead, Jul. 30, 2009, https://wikileaks.org/plusd/cables/09TELAVIV1694_a.html#efmAn8Axu

[43] Anne Barnard and Jodi Rudoren, Israel Says That Hamas Uses Civilian Shields, Reviving Debate, New York Times, Jul. 23rd, 2014, http://www.nytimes.com/2014/07/24/world/middleeast/israel-says-hamas-is-using-civilians-as-shields-in-gaza.html?_r=0

[44] Jeremy Bowen, Jeremy Bowen’s Gaza notebook: I saw no evidence of Hamas using Palestinians as human shields, New Statesman, Jul. 22nd, 2014, http://www.newstatesman.com/world-affairs/2014/07/jeremy-bowens-gaza-notebook-i-saw-no-evidence-hamas-using-palestinians-human

[45] Holly Yan, Steve Almasy, and Ali Younes, Inside the mind of Hamas’ political leader, CNN, Aug. 4, 2014.

[46] Ed. Bd., Israel-Gaza conflict: The myth of Hamas’s human shields, The Independent, Jul. 29th 2014;

[47] Harriet Sherwood, In Gaza, Hamas fighters are among civilians. There is nowhere else for them to go, The Guardian, July 24, 2014.

[48] Id.

[49] Id.

[50] Id.

[51] Amnesty International, Israel/Gaza conflict: Questions and Answers, Jul. 25, 2014, https://www.amnesty.org/en/latest/news/2014/07/israelgaza-conflict-questions-and-answers/

[52] Id.

[53] Id.

[54] Id.

[55] UNHCR, Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict, A/HRC/29/52, Jun. 24 2015, http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoIGaza/A-HRC-29-52_en.doc (While the commission was unable to verify independently the specific incidents alleged by Israel, the frequency of reports of Palestinian armed groups carrying out military operations in the immediate vicinity of civilian objects and specially protected objects suggests that such conduct could have been avoided on a number of occasions. In those instances, Palestinian armed groups may not have complied, to the maximum extent feasible, with their legal obligations).

[56] See Euro-Med Documents Israel’s Use of Human Shields in Gaza at Note 32.

[57] See generally Adalah at Note 38.

[58] Art. 51(5)(b) Additional Protocol I (AP-I)

[59] Additional Protocol I to the Geneva Conventions of 1949, Art. 51(7) (“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”).

[60] Id.

[61] Art. 48, AP-I (“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations only against military objectives”).

[62] Art. 51(1), AP-I.

[63] Diplomatic Conference on the Reaffirmation and Develop of International Humanitarian Law Applicable in Armed Conflict 321 (1974-77), Article Adopted by Committee III, XV Official Records (A rule on human shields was proposed for inclusion in Additional Protocol II, but did not survive the Diplomatic Conference).

[64] ICRC Customary IHL, Rule 97, https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule97

[65] Id. Rules 23 and 24.

[66] Id.

[67] Prosecutor v. Radavan Karadic, ICTY, IT-95-5/18-T, March 24, 2016, http://www.icty.org/x/cases/karadzic/tjug/en/160324_judgement.pdf (The sites included ammunition bunkers at Jahorinski Potok, the Jahorina radar site, and a nearby communications center).

[68] See Id.

[69] See Michael Schmitt, Human Shields in International Humanitarian Law, 38 Israel Yearbook on Human Rights 17, 35 (2008); See also Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq 67 (2003) (Reporting that Iraqi soldiers were instructed to “use any means necessary” in resisting the U.S. Marines, including putting women and children in the street. Among their tactics, they regularly hid near residences in order to use the civilians therein as shields. During fighting east of Basra, British Colonel Gil Baldwin, claimed to see Iraqi forces “herd” women and children out of their homes and fire rocket-propelled grenades over their heads).

[70] ICRC, Customary Law Study, Rule 1, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule1

[71] See Id. Rule 14, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter4_rule14.

[72] See ICRC, Customary Law Study, Rule 5, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule5; and Art. 50, AP-I; See also Prosecutor v. Tihomir Blaskic (Trial Judgement), IT-95-14-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 3 March 2000.

[73] See U.N. SCOR, 60th Sess., 5319th mtg. at 16, U.N. Doc. S/PV.5319 (Dec. 9, 2005); U.N.  SCOR, 54th Sess., 3980th mtg. at 11, U.N. Doc.  S/PV.3980 (Feb.  22, 1999); Sylvia R.  Limerick, The International Red Cross and Red Crescent Movement, 25 J. Royal Col. Physicians London 246, 251 (1991) (According to the International Committee of the Red Cross and various U.N. reports, the ratio of civilian to combatant casualties was between 5% and 10% in the First World War and then dramatically leapt to 50% during the Second World War).

[74] Art. 51(3), AP-I.

[75] Article 43, 2, AP-I.

[76] Article 25, First Geneva Convention.

[77] Germany, Military Manual (cited in ICRC, Customary International Law, Vol. II, Ch. 1, § 587).

[78] Art. 52(2) AP-I.

[79] See Generally, International Committee of the Red Cross (ICRC), Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law, May 2009 (Hereinafter ICRC DPH Study.)

[80] See Article 51(1), AP-I at Note 62.

[81] See ICRC DHP Study at 79.

[82] Id. at 46.

[83] Id.

[84] Id. 47-49.

[85]  ICRC, Summary Report of the Third Expert Meeting on the Notion of Direct Participation in Hostilities [Hereinafter 2005 DPH Report] at 14.

[86] ICRC, 2005 DPH Report at 22, 31 (“all acts that adversely affect or aim to adversely affect the enemy’s pursuance of its military objective or goal”).

[87] Id.

[88] See ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities [Hereinafter 2006 DPH Report] at 44; and ICRC, Fifth Expert Meeting on the Notion of Direct Participation in Hostilities [Hereinafter 2008 DPH Report] at 70.

[89] Id. (this view was generally shared during the expert meetings).

[90] ICRC DPH Study at 57.

[91] Id.

[92] Nils Melzer, Keeping  The  Balance  Between military  Necessity  And  Humanity: A  Response  To  Four  Critiques  Of  The  ICRC’s Interpretive  Guidance  On  The  Notion  Of direct  Participation  In  Hostilities, 832 International  Law  And  Politics 42, 869-871 (2010).

[93] See e.g. Art. 51 [5] (a) AP-I; For the customary nature of this rule in international and non-international armed conflict, ICRC, Customary IHL, Vol. I, Rule 14. For the relevant discussion during the expert

meetings, see Second Expert Meeting on the Notion of Direct Participation in Hostilities [Hereinafter 2004 DPH Report] at 6; 2006 DPH Report at 44; 2008 DPH Report at 70; ICRC Guidance (“The very fact that voluntary human shields are in practice considered to pose a legal – rather than a physical – obstacle to military operations demonstrates that they are recognized as protected against direct attack or, in other words, that their conduct does not amount to direct participation in hostilities”).

[94] While there was general agreement during the expert meetings that involuntary human shields could not

be regarded as directly participating in hostilities, the experts were unable to agree on the circumstances in which acting as a voluntary human shield would, or would not, amount to direct participation in hostilities. For an overview of the various positions, see 2004 DPH Report at 6; 2006 DPH Report at 44;

2008 DPH Report at 70.

[95] See e.g. 2004 DPH Report at 7; 2008 DPH Report at 71; ICRC Guidance, (“therefore, incur an increased risk of suffering incidental death or injury during attacks against those objectives”).

[96] See e.g. DPH Project, Summary Meeting Report 44 (2006), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/2006-03-report-dph-2006-icrc.pdf; DPH Project, Summary Meeting Report 70 (2008), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participationreport_res/$File/2008-05-report-dph-2008-icrc.pdf. On the issue generally, see Michael N. Schmitt, Human Shields in International Humanitarian Law, 47 Colum. J. Int’l. L. 292 (2009).  For a review of commentary on the subject, see also Rewi Lyall, Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States, 9 Melb. J. Int’l L. 313 (2008).

[97] Michael Schmitt, The Interpretive Guidance: A Critical Analysis, (2010).

[98] Id. (“From an attacker’s perspective (the military necessity prong), it does not matter why an attack cannot be mounted. Whether the obstacle is physical or legal, any military advantage that might have accrued from the attack is forfeited. Indeed, the legal obstacle is often the more effective one”).

[99] Id.

[100] Id. at 33.

[101] See Greenfield at Note 23.

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