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.

My first encounter with the concept of human shielding was in an interview I conducted with Majdi Abed Rabbo in Jabaliya, a neighborhood in Gaza City in February 2009. I was a member of the National Lawyers’ Guild fact-finding mission to Gaza following Israel’s first large scale offensive against the tiny coastal enclave—also known as “Operation Cast Lead.” Atop a pile of rubble where homes once stood, Majdi described to me how Israeli troops entered his home in early January and forced him at gunpoint to enter a home where they suspected Palestinian combatants took cover. Majdi soon found himself in the middle of a confrontation between three Palestinian combatants and Israeli troops that ended in several aerial missile strikes—one that demolished the home where the combatants took cover with them still inside and another to destroy Majdi’s home.[1]

At the time, I was not familiar with the international law that proscribed Majdi’s use as a human shield. It would be another war still before Israel weaponized the concept of human shields to explain the number of Palestinian deaths, to absolve itself of responsibility for them, and to tell a story about Palestinian barbarity. It was at complete odds with the stories we collected in Gaza.

Upon receiving Human Shields: A History of People in the Line of Fire, I thought this was the story Neve Gordon and Nicola Perugini were going to tell us –beginning from the first efforts to codify warfare after the Battle of Solferino and, a little thereafter, the US civil war. So I was surprised to learn that they did not limit their inquiry to armed conflicts but to theaters of peace as well. In To Kill a Mockingbird’s fictional story of Atticus Finch protecting a wrongfully accused Black man in the United States, in environmental and labor struggles, as well as in contemporary protests against racism and settler-colonialism. As Gordon and Perugini explain, human shields abound but their value is not universal and is hardly consistent. Human shielding is a political story about the value of humanity as “it describes who deserves to be treated humanely at a given historical moment and who does not” (6), as well as a story about social orders as “acts of human shielding also expose operations of power and ideology within the law” (8).

Despite the emphasis on both war and peacetime human shields, the majority of the book dealt with wartime shielding and certainly the chapters that addressed legal regulation all exclusively dealt with war. I was left wondering, then, why Perugini and Gordon wrote the book in a series of vignettes rather than divide it into thematic chapters to be able to consolidate some of the ideas they were contending with and thus tell a different story about ruptures and continuities in humanity’s response to shielding. My other primary inquiry—and related to this—regarded the emphasis on the “irregular.” While the irregular emerges as an outlier in conventional warfare—the more contextualized account recognizes that the irregular is consistently a revolutionary figure and most often, though not always, an anti-colonial one. How much did the regulation of irregular combat capture that revolutionary nature and how much of it was obscured and muted? Should we take for granted that the 1977 Additional Protocols affording nascent sovereigns the “right to fight” was a net gain for those struggling to upend imperial domination or did their recognition in law effectively contain them? For example, what does the treatment of human shields under Article 51 of the API reveal about its efficacy?

For the sake of this intervention, I focused on three theaters of war explored in the book: Ethiopia, Vietnam, and Gaza. There I found an enduring story across time and space, one bound by colonial ambition, arrogance, and aggression that demonstrates, in the authors’ words, “how the colonial subject is still very much alive” (169). Though written in distinct vignettes, Gordon and Perugini’s text helps illuminate how the imbrication of sovereignty, violence, and law have facilitated the expansion of empires atop the bodies of indigenous, Brown, and Black peoples.

Forged in the crucible of imperial conflicts, international law continues to preserve a racial hierarchy that justifies unimaginable violence in the name of civilization. Sovereignty, more than any other legal framework, has encapsulated those racial logics.  In its earliest iterations in the 15^th century, it was commensurate with the right to wage war and the only just war was the one fought to expand Christ’s dominion.[2] In effect, only Christians could be sovereign, and all violence meted by non-Christians, or non-sovereigns, was ipso facto illegitimate and illegal.

Sovereignty and violence have continued to be entwined in the laws of war. Consider that even as the Lieber Code, which contained the germ for modern laws of war, regulated the conduct of Union soldiers in the U.S. Civil War, they simultaneously sanctioned the massacre of two-hundred members of the Cheyenne and Arapaho tribes.[3] The juridical exclusion of indigenous peoples from the categories of peoplehood effectively expanded the permissible scope of force available to colonial powers. However, as Gordon and Perugini show in their discussion of Italy’s fascist invasion of Ethiopia in 1936, sovereignty was insufficient to overcome this racialized violence.

In my class on Race, International Law, and Empire, I teach Gordon and Perugini’s chapter on “Emblems” together with Adom Getachew’s critique of the League of Nations as a site of imperial counter-revolution to explore racial hierarchy through a sovereignty framework.  I do that here as well.

In the aftermath of the First World War, the League of Nations formally enshrined racial hierarchy among peoples within the Mandate System. Its American and European architects considered sovereignty a status to be earned as a result of proper development rather than a universal and natural right.[4] Accordingly, the Mandate system transformed the principle of self-determination into “the consent of governed,” and preserved the superiority of Western civilization by promising an elusive independence under the auspices of European tutelage.[5] Black internationalists, recognizing the dual structure of racism and capitalism, described the Mandate system as “colonial slavery.”[6] This became acutely apparent during the 1936 invasion.

Though Ethiopia had overcome the League’s civilizational hurdles to achieve independence, its sovereignty remained probationary upon explicit racial terms, captured by the moniker “White Negroes.” The expression indicated proximity to Europe—due to its sovereign status—and its ineligibility for humanity because of its society’s blackness.[7]  Therefore, notwithstanding ongoing European atrocities, the League attributed slavery within Ethiopia to the lack of European oversight.[8] This hypocritical form of scrutiny is what Getachew has described as “unequal integration” and what John Reynolds has described as “repressive inclusion.”[9]

Upon this basis, and eager to expand its colonial holdings, Italy invaded Ethiopia under the auspices of ending slavery and used indiscriminate force such as deployment of chemical weapons and the direct targeting of civilians and civilian infrastructure, including Red Cross medical facilities. In response to Ethiopia’s protests, Italy accused Ethiopians of using the facilities to store weapons and launch attacks. As much is to be expected of a fascist regime, but what is telling was the response of the League of Nations and the Red Cross.

The League failed to apply sanctions on Italy or even to condemn its war. Its inaction underscored Carl Schmitt’s critique that the League maintained two distinct spheres of public law: one for Europe and another for everyone else indicating the liberal farce of universalism.[10]  Similarly, the Red Cross, equivocated between the two belligerents. While it condemned Italy’s bombing campaign, it described Ethiopian forces as being incapable of distinguishing between combatants and non-combatants. While this absolved Ethiopians of deliberately using the medical facility as a human shield, it also condemned them as ineligible for the laws of war thus echoing U.S. Army Captain Elbridge Colby’s advocacy for unregulated, or “impolite war,” against “savage tribes” that lack moral decency.[11] The indigenous, Black, and colonized body could potentially achieve sovereignty but never enjoy the full spectrum of its political promise because of their racial inferiority. Inclusion in the international order would not be enough to disrupt its embedded racial hierarchies.

This knowledge shaped and motivated the self-described Third World which united in struggle against imperialism with the aim of upending Western domination and creating a new world. Though this dream remains unrealized it is not without significant achievements including the Additional Protocols to the Geneva Conventions that elevated the status of guerillas to legitimate combatants. The United States and Israel have refused to ratify these Conventions, insisting on the illegitimacy of irregular combat for the sake of preserving their own interests. In the course of their own colonial wars, both powers have replicated the tactics deployed by fascist Italy: (1) deployment of sovereignty/racial frameworks to undermine the use of enemy violence; (2) media and propaganda as a battlefield; (3) the struggle over the meaning and content of international law to justify its own violence; and (4) shoring up popular support for the wars among their populations. [See Chart]

These efforts failed to achieve a U.S. victory in the Vietnam War though that experience established several significant precedents. Among them is what Gordon and Perugini rightfully describe is the move to reduce “people’s war, a strategy of political struggle” to “an act of human shielding” (91) Like emperor Haile Sellasie who mobilized Ethiopians in a people’s war against Mussolini’s forces, so too did Ho Chi Minh mobilize Vietnamese people against the US and its proxies. In doing so, the civilian who failed to actively reject the armed combatant in their midst did not become a legitimate target but also did not retain their civilian immunity. Instead they occupied a liminal space. While their killing would be acknowledged, responsibility for their deaths would become a site of controversy. Within the span of a few decades, that controversy would take on new and devastating life.

Since Israel’s unilateral disengagement from the Gaza Strip in 2005, the nuclear power has launched 22 military offensives against the besieged Palestinians, including three large scale assaults using advanced weapons technologies between 2008 and 2014. In order to use military force against a civilian population for whom it is responsible, Israel made several legal innovations. First, upon withdrawal from Gaza, it declared its occupation of the territory over, but that neither Gaza nor Palestinians are sovereign—instead Israel described it as a “hostile entity.” Second, because it continued to deny the juridical status of Palestinians, Israel denied that Hamas, which was popularly elected by Palestinians in 2006, was an embryonic sovereign engaged in irregular combat thus rendering all Palestinian use of force criminal and terroristic. Finally, Israel insisted that it was not engaged in an International or a Non-International Armed Conflict but rather in an unprecedented confrontation it described as an “armed conflict short of war.” This gave Israel’s Legal Advisers the authority to legislate new laws of armed conflict where they insisted none existed.

One legal technology was what I call the “shrinking civilian,” which effectively diminished who counted as a civilian and expanded Israel’s right to use force.[12] One aspect of this transformation was removing the temporal scope of participation in defining who are Direct Participant Hostilities. The civilian who lost their immunity when they took up arms “for such time”—became a legitimate target even if they carried no arms because their membership in a political party created the presumption of continuing participation. Members and infrastructure of Hamas’s civilian arm became legitimate targets and the civilians sheltering in them or near them became human shields. Everything in Gaza became a legitimate target within the language of law. This significantly perverted proportionality assessments and facilitated incredibly high registers of death and destruction with impunity. As Gordon and Perugini point out, international law is racialized because of the latitude it affords to state belligerents in assessing distinction and proportionately(169).

In Gaza, Israel forcibly transformed the population into human shields when it sealed the borders, concentrated the population in the center of the territory by expanding its buffer zones by forty percent, and targeted 15,000 Hamas militants in a population of 2 million Palestinians. Palestinians in Gaza are human shields of the savage kind even in a state of peace. In fact, Gordon and Perugini open their book with the story of Rachel Corrie, a peace warrior whose acts of non-violent shielding was similarly condemned to barbarity by Israel. It makes sense that Gordon and Perugini begin and end their text in Gaza, concluding it is a metaphor for the future of humanity. Indeed, it is the site of grotesque experimentation in humanity featuring the “shrinking civilian” and evidencing, still, the imbrications of sovereignty, violence, and the law.

NOTES

[1] National Lawyers Guild, “Onslaught: Israel’s Attack on Gaza and the Rule of Law: Report of the National Lawyers Guild Delegation to Gaza,” (February 2009), https://www.nlginternational.org/report/NLG_Final_Report.pdf.

[2] For a discussion of Francisco de Vitoria, see Antony Anghie, “Francisco de Vitoria and the Colonial Origins of International Law,” Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2005), 321-333.

[3] A. Dirk Moses, “Empire, Resistance, and Security: International Law and the Transformative Occupation of Palestine,” Humanity: An International Journal of Human Rights, Humanitarianism, and Development 8, no. 2  (Summer 2017): 379-409.

[4] Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination (Princeton, NJ: Princeton University Press, 2019): Wilson as a racist who wanted to preserve white supremacy and did not see emancipation as a good (see page 43 for his beliefs on the unpreparedness of black people for freedom and the ills of Reconstruction; he saw the end of Reconstruction as a positive gain); Wilson believed that there is no universal practice of democracy or government; Smuts believed that integration was bad but that slavery was the other extreme and supported deferral as a way to eliminate racial difference (47); Smuts believed in separate development which would become the germ for apartheid.

[5] Timothy Mitchell

[6] Getachew, Worldmaking after Empire.

[7] Gordon and Perugini, Human Shields, 61

[8] Getachew, Worldmaking after Empire, 59.

[9] Gordon and Perugini, Human Shields, 52

[10] Getachew, Worldmaking after Empire, 63

[11] Gordon and Perugini, Human Shields, 287.

[12] Erakat, “The Sovereign Right to Kill: A Critical Appraisal of Israel’s Shoot-to-Kill Policy in Gaza,” International Criminal Law Review 19, no. 5 (October 2019): 783-818.