Human Shields and the December 2016 Update to the DoD Law of War Manual

I’m pleased to be part of a mini-forum over on Just Security concerning the just-released revision of the U.S. Department of Defense Law of War Manual.  First issued in June of 2015, the Manual was billed as a “living” document which would be updated periodically.  That’s proven to be the case, as there was an update in May of 2016, and now another a little more than six months later.

When the Manual was originally issued in 2015, I wrote an essay on Lawfare regarding its Chapter XVI which concerns cyber operations.  That chapter hasn’t changed appreciably in either update.  Instead, the current revision focuses mainly on Chapter V, The Conduct of Hostilities, and includes what are termed as “substantial revisions to the discussion of the principle of proportionality.”

My addition to the dialogue about the latest revision relates to a subject I’ve written about previously: human shields.  My new essay is entitled “A Squarable Circle?: The Revised DoD Law of War Manual and the Challenge of Human Shields” and reflects my concern that the use of human shields by the Islamic State in Iraq and Syria (ISIS) is literally out of control.  Journalist Judit Neurink contends that ISIS is bringing “the use of human shields to a completely new level” and I have to agree.

Most worrisome is that the use of human shields is working effectively for ISIS. For example, USA Today reported last August that “hundreds of [ISIS] fighters escaped Manbij in northern Syria by placing civilians in a convoy of 500 vehicles” adding that the “Pentagon said it didn’t fire on the convoy for fear of hitting civilians.”  I hate to think what barbarisms those “hundreds” of ISIS fighters who escaped elimination might have subsequently inflicted upon helpless civilians. Unfortunately, the international community has been completely unable to slow, let alone stop, the increasing use of this loathsome tactic, so in my mind we need a fresh approach.

Accordingly, in my essay I take on a number issues associated with the dilemma of human shields.  I argue that rethinking the assessment of the “military advantage anticipated” in the proportionality rule to include as a proper military objective halting the enemy from employing human shields as an effective means of defense.  I suggest that doing so might alter the calculation as to when civilian losses become “excessive”, and therefore provide a legal basis to use force in a way that might persuade an adversary to abandon the use of human shields.

I also delve into whether or not there is – or ought to be – a different legal treatment of “voluntary” and “involuntary” human shields.  This could be important because the revised Manual indicates (§ that at least some “voluntary” human shields could be said to be “directly participating in hostilities” (DPH) which would mean that they lose their protection from attack and would not need to be considered in the proportionality calculation.

I believe that DPH should be determined by a civilian’s actions, and that the law does not and should not impose an obligation to somehow divine the mental state of a civilian who is, factually, directly participating in hostilities by attempting to shield an otherwise legitimate military target from attack.  In that regard, I also discuss whether or not involuntary human shields are really so different from conscripts involuntary drafted into traditional armies who are, by nature of their military status alone, typically considered lawful targets.  Anyway, I invite you to check out the essay here.

I’d also invite your attention to the critiques by my friends Sean Watts of Creighton Law (“The Updated DoD Law of War Manual and the Precaution of Military Objective Selection”) and Geoff Corn of South Texas College of Law Houston (“Initial Observations on the Law of War Manual Revision: “Three ups/Three downs””).  A different view of the human shield issue (“Human Shields in the (Updated) Dept of Defense’s Law of War Manual”) is well presented by our colleague Adil Ahmad Haque of Rutgers Law School.

Although the Manual is an imperfect document (as any 1200+ page effort of this type would be), the mere fact that DoD appears to take seriously a mandate to not only invite suggestions about Manual, but to also thereafter actually revise it on such a relatively frequent basis says much – and all of it good – about those who have taken on the stewardship of this extremely important document that’s so necessary for honorable warfighters and the society they represent.

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