Unsettling Effects of the Human Shield Concept

This essay is part of a symposium on Neve Gordon and Nicola Perugini’s Human Shields. All contributions to the symposium can be found here.

Neve Gordon and Nicola Perugini’s Human Shields is arranged as a composition of twenty two tableaux. Each vividly explores distinctive practices of human shielding by excavating diverse types of archival sources—official documents, personal correspondence, memoirs, news media, scholarly works, novels, videogames, and more. The succession of these tableaux occurs mostly in chronological order beginning with the American Civil War, and its overall effect is to give a rich sense of the historical evolution of the figure of the human shield in the laws of war.

The book looks at human shielding as a legally embedded practice, both made possible by law and in tension with legal principles. Central to the authors’ project is to show how allegedly universal invocations of humanity in contexts of human shielding turn out to prioritize certain categories of human beings and exclude or degrade others on racial, ethnic, religious, or political grounds.

The book’s narration is rich and nuanced, but some of the intractability of human shielding may be approached in general terms. In what may be called the “standard case,” a belligerent force coerces non-combatants into harm’s way, where the source of harm is its enemy. The enemy, in turn, has an interest in not harming non-combatants. It is because of this interest that non-combatants can work as shields; the more valuable non-combatants are for the enemy, the more shielding power they have. Gordon and Perugini discuss many forms of human shielding, including tying notables to trains and prisoners to arms depots routinely attacked by the enemy, or making non-combatants walk in front of troops on roads planted with bombs. In a related form, belligerents may contribute to non-combatants being in harm’s way, as when targetable objects are placed in their midst or their evacuation is impeded during enemy attacks.

Human shielding has been intractable in law and politics largely because it leads to harm only through the joint action of two enemies. One side does wrong by coercing non-combatants into harm’s way, the other by using harmful force against them. The situation begs for mutual attributions of blame, which are strategically deployed to compromise the legitimacy of each vis-à-vis politically relevant audiences. The stronger and wider the perception that harming non-combatants is inhumane, the higher the potential legitimacy costs.

The history of human shielding told by Gordon and Perugini centers on the political and social limitations of the allegedely universal humanity concept. Who has historically been counted as a human shield, and to what effects, can tell us a great deal about the concept of humanity in humanitarian practice. But the human shield concept also reveals even older tensions and trade-offs in the European project of regulating war through law.

According to the Enlightenment theory of “regular war,” hostilities should take place only among the designated forces of sovereign states, while non-combatants should be kept outside of battle.[1] As is all too well known, however, in fact non-combatants cannot be excluded from hostilities. Perhaps the most familiar illustration of this is the figure of the irregular, who is de facto a combatant but, by not being part of a regular state force, lacks belligerent privileges. But human shields can have an equally unsettling effect on the modern laws of war. Impossibly, they are simultaneously deterring weapons and human beings who demand protection and humane treatment.

This impossibility harks back to long-standing tensions between ideals of regular war and humanitarian sentiments in the “laws and customs of war.” Writing in the mid-eighteenth century, the influential publicist Emer de Vattel followed Hugo Grotius in treating all subjects of an enemy state as “enemy subjects” (Francis Lieber took a similar route). As enemy subjects, non-combatants should be expected to suffer some of the “hardships of war” (Lieber’s phrase), even though they were entitled to some immunities. If non-combatants were under enemy control, they could not be killed, and under no circumstances could they be raped. But according to Vattel, non-combatants could be lawfully subject to bombings; starved to death in besieged cities; and be subject to “terror to a certain degree” when military imperatives so required.[2] They could also be deliberately attacked as a form of belligerent reprisals, and they could be used as “hostages,” i.e. captured as securities for an enemy pledge. Such hostage-takings, as Gordon and Perugini rightly indicate, are the precursors of late-nineteenth-century human shields.

Already in Vattel—and also in Lieber—such attacks against non-combatants were condemned and understood to be inhumane, indeed part of the appalling hardships of war. As such they should be avoided, but they could be lawful nonetheless. Strategic imperatives could override both humanitarian sentiments and the general legal principle of leaving non-combatants outside of hostilities. This conflict between lawfulness and humaneness—between the laws of war and humanitarian ethics—only got more acute and contested with the rise of humanitarian lawyers and the creation of the ICRC at the end of the nineteenth century.

Human Shields discusses two forms of contemporary contestation that stand out as dramatic instances of the continuous instability of the human shield concept. The first involves targeting and contends that human shields can weigh less in proportionality calculations than “ordinary” civilians. In its preposterous extreme, the U.S. Law of War Manual of 2015 held that human shields could have no weight at all, as if civilians could lose their protected status in virtue of being coerced into harm’s way (135-139). In practice, this amounted to a unilateral attempt—later retracted—to change the laws of war in order to devalue civilian lives and eliminate their shielding power by regulatory fiat.

The second is the contention that sheer proximity to hostilities can turn civilians into human shields. Human Shields reconstructs in fascinating detail the legal debates around attacks against civilians in Sri Lanka. Some experts argued that to become human shields it was not necessary that civilians be coerced into harm’s way; the sheer possibility that they be harmed would make them shields. This constitutes in effect the evisceration of any distinction between civilian and human shield in areas of hostilities. And yet, as Gordon and Perugini write, “killing human shields is legally not the same as killing civilians” (138). Indeed, when civilians are labelled human shields, the enemy is made responsible for putting them in harm’s way; by framing all civilians in areas of hostilities human shields, blame is self-servingly shifted to the enemy.

It would be hard to overstate how destructive of legal limitations these two contentions are, particularly when brought together to bear in contexts of urban warfare, counterinsurgency, or “counterterrorism” in densely populated areas. I would think their radically destructive effect makes their wide acceptance unlikely. But the fact that they have been introduced by powerful states shows how destabilizing the human shield concept can be for International Humanitarian Law.

The larger picture that emerges from the succession of tableaux in Human Shields is rather grim. At some points in the book, however, Gordon and Perugini describe legal reforms that extended protections to non-combatants as “revolutionary” and “progressive” (for example, 78-81, 133). While the project of extending broader legal protections to civilians can only be unobjectionable when taken in isolation, when put in the broader context of military practices of targeting, and political practices of framing, the value of such protections may become more elusive. One of the great strenghts of Human Shields is its fine-grained contextualization of the strategic uses and abuses of the human shield concept, and elsewhere in the book Gordon and Perugini are less inclined to positive general assessments.

Looking at the long history of the laws of war, one may see progress in the fact that legal protections of non-combatants have considerably expanded over the last century and a half. When it comes to civilian protections, Vattel’s laws and customs of war are far more permissive than the First Additional Protocol to the Geneva Conventions. But if progress is understood as settling or overcoming some deep internal tensions and contradictions in the project of regulating war in international law, then we may have progressed less than we would like to think. Even though it is now categorically proscribed, human shielding continues to unsettle the laws of war in profound ways, and will probably continue to do so for as long as we have humanitarian law.

NOTES

[1] I discuss this project and its intellectual foundations in Pablo Kalmanovitz, The Laws of War in International Thought (Oxford: Oxford University Press, 2020),  97-126. For a very succinct version, see Kalmanovitz, “From Reprisals to Criminal Accountability: State Bias and the Prospects of Limiting War Through Law,” in European Review of International Studies 7, no. 2–3 (December 2020), 368-374.

[2] Emer de Vattel, Law of Nations, book III, section 228, 614.

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About Pablo Kalmanovitz

Pablo Kalmanovitz is research professor and head of the International Studies Department at CIDE (Centro de Investigación y Docencia Económicas) in Mexico City. He has held permanent or visiting positions at the Universidad de los Andes in Bogotá, the European University Institute, Yale University, McGill University, and the University of Ulster. His research focuses on historical and theoretical aspects of the international regulation of armed force, on which he has published numerous articles and book chapters. His book The Laws of War in International Thought was published by Oxford University Press in 2020.


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