More on the human shields debate

The American Journal of International Law (AJIL) Unbound online edition has just published an open access feature entitled Symposium on Critical Perspectives on Human Shields.  The symposium was the brainchild of Nicola Perugini and Neve Gordon, and brilliantly (and patiently!) edited by Harlan Cohen.  If you haven’t examined this issue of human shields, it’s extraordinarily complex (witness a couple of previous Lawfire posts about it – see e.g., here, and here) so this is a welcome addition to the dialogue.

The AJIL symposium brings together a range of superb scholars, including such authentic intellectual heavyweights as my friends Helen Kinsella and Beth Van Shaack.  I took a look at the symposium’s essays – they are all short by design – and my reaction was, “wow, this is what a symposium is really supposed to be about!”  It’s a really thoughtful (and original!) collection.

That said, I don’t think any of the contributors would necessarily agree with the perspective in my essay (“No Good Options against ISIS Barbarism? Human Shields in 21st century Conflicts).   In their introduction, Nicola and Neve describe it this way:

Charles Dunlap provides a very different kind of critique. Discussing the rise of new international political actors such as ISIS, he maintains that human shielding is a barbaric terrorist tactic aimed at exploiting the moral sensibility of Western countries.  The deployment of human shields, he argues, is part of a lawfare strategy utilized by nonstate actors.  If the tactic is to be stopped, he argues, international law must be adapted, reinterpreted, or revised to dull the tactic’s effectiveness and free the hands of the troops fighting those using it.

That is a pretty accurate comment, and in the piece I do suggest specifics as to how we might re-conceptualize traditional interpretations of the law without deviating from its essentials.  Why do we need to do that?  Because what we are doing now is simply not working; the use of human shields is metastasizing and proliferating to a truly unprecedented degree – and their use is effectively operating to protect ISIS fighters who are able to avoid attack and can, therefore, live on to commit all kinds of atrocities. Here’s how I close my essay:

[R]ather than simply criticizing those trying to halt one of the most barbaric forces the world has ever seen—while at the same time doing their best to adhere to the fundamentals of legal warfighting—it may be better to work to reasonably and honorably adapt and, where necessary, reinterpret or even revise the LoW in order to meet the extraordinarily dangerous threat of ISIS.  In short, we need to innovatively create options, even imperfect ones, for decision-makers.  If the international legal community fails to do so, the LoW and international law generally risks slipping into irrelevance—a condition some ominously argue is already extant.

But Beth Van Schaack sees it differently. Nicola and Neve describe her essay in this way:

In contrast to Dunlap, Van Schaack claims that international law provides the tools to deal with human shielding and that problems arise primarily due to the wilful misinterpretation of the law. Her conclusion is that militaries must “treat all human shields as civilians when it comes to calculating acceptable collateral damage, unless there is irrefutable proof of willing participation in hostilities.”

I’m just not sure that in the real world of chaotic battlefields you can determine the mindset of people actively trying to protect targets, and I don’t think the law requires doing so.  To me, direct participation in hostilities is determined by overt actions, and we ought not task militaries as a matter of law with divining participants mental state (voluntary, involuntary, something in between?) when their actions are clearly protecting otherwise legitimate targets, in this case vicious ISIS fighters.

After all, we don’t grant legal concessions to civilians who are involuntarily conscripted into a nation’s armed forces.  Treating all human shields as civilians as a matter of wise policy (as will so often be the case) is one thing, but it is quite another to have the law mandate that in all circumstances people obviously protecting targets are nevertheless to always enjoy legal insulation simply because you can’t read what’s in their minds.

Anyway, it’s this kind of differences in perspectives that make the symposium such interesting reading. Accordingly, I encourage you to look for yourself, and make your own judgment.  The full symposium is found here and, again, you can find my contribution here.



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