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.
We are honoured by Noura Erakat’s, Lisa Hajjar’s, Pablo Kalmanovitz’s, Karin Loevy’s, Jessica Whyte’s, and Maja Zehfuss’s engagement with our book. We would like to begin by thanking them all for taking the time to read the manuscript and for offering really insightful criticism which has, in many respects, helped us to further articulate the book’s arguments.
Noura Erakat asks why we decided to abandon the standard format of academic writing; namely, 10,000-word chapters that enable authors to develop an idea or theme. She intimates that there is a price to pay for the format we chose, maintaining that it becomes extremely difficult to consolidate some of the ideas informing the book while suggesting that this format may elide significant ruptures and continuities in the way human shielding was addressed over time. While Erakat may have a point, we decided to be experimental. We wanted to appeal to as broad an audience as possible and therefore adopted a number of general guidelines: we would begin each chapter with a vignette of human shielding, refrain from using unnecessary jargon, and limit the length of each chapter to about 3,500 words. Our goal was to write short chapters that would read almost like magazine articles and in this way broaden the book’s readership to non-academic audiences.
Looking at colonial wars, environmental struggles, humanitarian wars, the war on terror, civil protests, and even computer games, we underscore how human shields have acquired different meanings and have been deployed in different ways, but also that they help illuminate the political and legal order informing social relations. At times, we explicitly draw connections among chapters to emphasize political and theoretical continuities or ruptures, and on other occasions the connections and ruptures are alluded to in more subtle ways (that is, as in the description of human shields in Ethiopia, Vietnam, and Gaza, three cases that evoke each other). Yet, as Erakat intimates, on still other occasions we may not have been entirely aware of certain connections or ruptures. There were a number of reasons for adopting this strategy. One reason for not weaving certain threads together too tightly emanates from our wish to leave a number of issues or arguments open ended, a strategy which, we believe, encourages the reader to identify such threads and to “travel” with the shields in space and time while drawing their own conclusions.
Erakat then asks two interconnected questions: whether the 1977 Additional Protocols to the Geneva Conventions should be understood as a net gain for those struggling to upend imperial domination; and whether the recognition of irregular fighters in the Protocols effectively legitimize anti-colonial, anti-racism, and anti-occupation resistance or whether the Protocols help contain it. In the book, we suggest that the Protocols’ contribution in upending imperial domination have been limited and that actually the spectre of imperialism and colonialism continues to haunt the Protocols until the present day.
Gaza’s situation, for instance, clearly exposes the inherent and unresolved tension informing the Additional Protocols. On the one hand, the Protocols legitimize armed struggle carried out by irregulars in the context of the right to self-determination and liberation from colonialism. On the other hand, the same Protocols continue to be confined within a state-centric paradigm which privileges state over non-state actors, ultimately outlawing anti-colonial resistance. Indeed, since the Protocols’ ratification, violent resistance—and often non-violent resistance—carried out against the state by non-state actors has consistently been framed as terrorism, particularly in contexts of neo-imperial military occupation, colonization, and the war on terror. One could say that the irregular within the Protocols is legitimate but not quite.
What happens to non-combatants in such contexts? As we mention elsewhere, in Gaza, Israel has denied the civilian population both sovereignty and any possibility of supporting the legitimate struggle for self-determination—including through armed struggle. Israel has placed Palestinians on a humanitarian “diet” by imposing a military siege, and those who dare protest their subjugation become killable or maimable subjects.[1] Gaza thus reveals how international law traps Palestinians within an impossible binary, condemned to either remain passive colonial subjects or, alternatively, branded as terrorists or people who harbour terrorists when they dare to reject their condition of subjugation.
In the book, we show how the shielding accusation plays a central role in policing the borders of this binary. The shielding charge helps cast Palestinian irregulars as barbarians since it ostensibly demonstrates that they weaponize civilians, refusing, as it were, to maintain the moral and legal distinction between civilians and combatants. When carried out by a non-state actor, lack of distinction serves as a key mark of terrorism. Simultaneously, the same charge helps assign guilt for the death of Palestinian civilians to Hamas; Israel claims that even though its soldiers may have killed Palestinian civilians, the blame actually lies with Hamas because it had illegally coerced those who had died, forcing them to serve as human shields. The Protocols provide a decisive framework that helps sustain this violent colonial condition.
Jessica Whyte raises two significant issues. She criticizes our claims about progress in the laws of war, and then questions our use of the notion of humanity in relation to wars. She suggests that anti-colonial movements rejected the idea that the principle of distinction—which requires enemy parties to distinguish between combatants and civilians—was the central tenet differentiating between civilized and uncivilized warfare, and that according to these movements the distinction between humane and inhumane warfare is the one between progressive wars of national liberation and reactionary imperialist wars.[2]
In relation to the first issue, Whyte criticizes us for describing the 1874 Brussels Declaration (which never came into force) as perhaps “the most progressive legal document introduced by major powers.” She acknowledges that the document legitimizes “the spontaneous resistance of civilians against an invading army,” but argues that it did so “only in territories that had not yet been ‘placed under the authority of the hostile army.’ Once such authority was established, civilians were expected to submit unconditionally to the occupier.” Ultimately, she claims, the document contributed to the “new ideal of regular war.”
We, by contrast, think that the Brussels Declaration recognizes and legitimizes the irregular fighter, and this is one of the key reasons why it was never adopted. Article 9 notes that “The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps” if they follow certain conditions like carrying open arms and having a chain of command. Article 11 states that “the armed forces of the belligerent parties may consist of combatants and non-combatants. In case of capture by the enemy, both shall enjoy the rights of prisoners of war.” The Viet Cong and the civilians who supported their resistance would have probably fit the bill. Whyte’s claim that according to the Declaration civilians can legally take up arms to resist invading troops only until the territory is “placed under the authority of the hostile army” is based on a conservative interpretation, both because Article 11 legitimizes the participation of civilians in resistance without reference to a timeline, and, just as importantly, because the Declaration notes that “In countries where militia constitute the army, or form part of it, they are included under the denomination ‘army,’” thus suggesting that irregulars are legitimate. Ultimately, our reading suggests that the Brussels Declaration was never adopted precisely because it failed to reinforce the state-centric approach that was coalescing among legal experts at the time, and because it bestowed a certain degree of legitimacy on irregulars.
This does not mean that the Declaration was not informed by contradictions. While providing irregulars with protections, several passages legalize military occupation and the authority of the occupying powers. But compared with the almost complete outlawing of irregulars that both preceded and followed the Declaration, it seemed reasonable to claim that the Declaration is a progressive document. In a similar vein, we describe the changing status of civilians as a pendulum, and repeatedly show how the pendulum’s movement is not linear, but like all forms of progress is marked by contradictions, pushbacks, internal tensions, and regression. As Pablo Kalmanovitz reminds us, according to Emer de Vattel, who wrote The Laws of Nations in the eighteenth century, “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.” Taking this history into account, we contend that the provisions protecting civilians reached a high point with the publication of the 1977 Additional Protocols that expanded the category of civilian to include decolonized populations while also formally sanctioning anti-colonial struggles carried out by irregulars. In the book we continuously emphasize that the protections bestowed on civilians tend simultaneously to legitimize practices that erode the civilian, while describing the pendulum’s backward turn following the end of the Cold War and the advent of the war on terror.
Whyte is, of course, well aware of this history, but she argues that the price of new conventions protecting civilians has been extremely high: in order to receive legal protections, she maintains, civilians must remain passive, intimating that even the “spontaneous” resistance that civilians were afforded in the Brussels Declaration is prohibited in the 1949 Conventions. In the book, we agree with this line of analysis, underscoring time and again the claim initially raised by Helen Kinsella about how the law imagines and constitutes the civilian as passive,[3] but we do not think that the passive/active articulation of civilianhood is the only way to evaluate progress.[4]
Moreover, the passive civilian is linked in our minds not only to Whyte’s claim about progress, but also to the meaning of humane warfare. We agree with Whyte that for anti-colonialists the distinction between humane and inhumane warfare is the one between progressive wars of national liberation and reactionary imperialist wars, and thank her for flagging this point since we did not sufficiently highlight it in the book. Yet, Whyte appears to delink the war’s objectives from the repertoires of violence and warfare strategies adopted in the war, suggesting that only the former determines whether the war is humane. We, by contrast, believe that the war’s objective cannot be separated from the conduct towards civilians and of civilians in war. Indeed, in our mind, a fundamental distinction between wars of liberation and reactionary wars is determined by and through the way they relate to civilians, where the former conceives civilians as active subjects and the later as passive ones.
In the book we intimate that the principle of distinction is weaponized against liberation forces precisely because they conceive civilians as active actors who should take part in determining their own political destiny while under colonial and imperial occupation. By contrast, reactionary wars are reactionary because they aim to subdue the civilian population and to extract the population’s energy and resources to advance the imperialist project. We show how the principle of distinction and the notion of the passive civilian informing it have frequently been mobilised by reactionary forces to delegitimize civilian engagement in different people’s liberation wars. Indeed, we chronicle the way that the principle of distinction has been deployed as a counter-revolutionary apparatus that helps legitimize inhumane warfare, as Italy did in Ethiopia, the US in Vietnam, and Israel in Gaza.
Pablo Kalmanovitz provides an in-depth analysis of some of the key tensions informing the book. We concur that human shields expose deep-seated tensions within the laws of war, since “they are simultaneously deterring weapons and human beings who demand protection and humane treatment.” Human shields are a fertile site to think through the relationships among law, violence, and humanity, because they are, as Kalmanovitz cogently observes, characterised by a “political intractability” which pushes them to the margins of the law. We, however, do not share Kalmanovitz’s optimism.
After discussing the notion of proximate human shields and how it has been invoked to cast whole civilian populations as shields in order to “self-servingly shift the blame” of civilian deaths onto the enemy, Kalmanovitz claims that the “radically destructive effects makes it unlikely that [the accusation of proximate shielding will] become widely accepted among international lawyers. In addition to nearly unanimous opposition from international humanitarian lawyers, there is also the potentially huge legitimacy costs.” Our research, however, suggests that the opposite is the case. Not only have eminent international humanitarian lawyers helped to advance the proximate shields argument in order to defend war crimes carried out by state militaries, as our analysis of human shielding in Sri Lanka suggests,[5] but with the exception of a few isolated cases, the most renowned human rights and advocacy organizations—from Amnesty International and Human Rights Watch to the International Crisis Group—have followed suit.[6] We do hope, however, that in the future these organisations will invest resources in the production of critical reports on human shielding accusations and how they have been used to cover-up war crimes.
In her response, Lisa Hajjar interrogates the killing of Osama bin Laden. She alludes to the distinction between fabrication and framing, contending, for example, that the “claim that bin Laden had used the wife who was with him in the bedroom as a human shield was an especially odd and ill-considered fabrication.” Theoretically, we believe that framing is a more precise term, and we refrain from using the term fabrication for three primary reasons. First, because the human shield category is not created “on the spot,” but its invocation follows a long historical process of production and deployment in multiple contexts of armed conflict. So, the presentation of Osama bin Laden’s wife as a human shield is less a product of an extemporaneous fabrication than part of a historically rooted process of legitimising the killing of civilians by blaming inhumane non-white terrorists who are prone to use civilians—women in particular—as human shields for their deaths.
Second, the notion of framing allows us to grasp the different ways of representing non-white political actors as human shields have coalesced into a new regime of truth—to use Michel Foucault’s phrase. A regime like the one analysed by Edward Said in Covering Islam, in which he shows how by constantly framing Muslims as incompatible with certain ethical standards, a frightening image of Islam characterized by inhumanity and lawless violence is produced.[7] The way in which Osama bin Laden was described as using his wife as a human shield is very similar to the stereotypical characterisation of Muslim fighters as deploying human shields in popular television series like Homeland and in hundreds of media articles. Thus, when fiction and reality correspond, the notion of fabrication seems less able to capture what is going on than the notion of framing, a term which draws the connection between instances of human shielding, such as the one Hajjar mentions in relation to the killing of Osama bin Laden, to a broader regime of truth. Finally, the act of fabricating, as in “making up” something, often reduces complex political processes to the production of lies. We are not denying that there are instances in which civilians are cast as shields as the result of a deliberate lie—indeed, we discuss such cases throughout the book. But we believe that uncovering and debunking lies is only part of a much broader process of critique in relation to the war on terror. Other parts of this process include exposing the discourses, devices, techniques and strategies that help create a regime of truth, which in the context of the war on terror frames non-white civilians as human shields and renders them killable subjects.
Karin Loevy’s insistence on highlighting the agency of civilians in Gaza is well taken. Part of the decolonial project is to be much more attentive to the perspective of those who have been colonized, and as Loevy asserts, the shift in focus from the drone’s eye to the viewpoint of the civilians on the roof dramatically alters the story narrated by the Israeli military. We consequently concur that we could have done more to listen to the voices of Palestinians who decide to use their bodies in order to defend targets, and not simply present them as products of state violence. Their perspective illuminates the reality of those who experience the horror of violence—the horror that drone images conceal through processes of sterilization—while simultaneously revealing new ways that people can mobilise and resist forms of domination.[8] We include reflections on the importance of agency in the chapters on environmental shielding and protests, but we agree with Loevy that it would have been fruitful to juxtapose views from the air with those on the ground in a single chapter.
We would like, however, to add a word of caution. Loevy writes that from the “perspective of the people standing on the roof, it is their agency, their participation, their bravery, their risk and sacrifice, their daily attempts to protect their home, their neighborhood, their city—that cannot be taken away from them, and that is triumphant.” She then ends her intervention by noting that “it is in the hands of those who are struggling for their liberation [to] find creative ways to live in the cracks, and to resist.” This is undoubtedly important, and the fact that Israel had to invest so much energy in framing the Palestinian population in the Gaza Strip as barbaric reveals that their steadfast effort to resist by standing on the roof was, in a certain sense, successful.
The problem is that, given the vast asymmetry of power characterizing the colonization of Palestine, and given the current configuration of the laws of war and the legal consensus among hi-tech states on the interpretation of the human shielding clauses, the act of resistance described by Loevy was exploited by Israel—through a well-orchestrated social media campaign—to portray Palestinians as violating international law. Indeed, the way Israel has legitimized the killing of thousands of civilians in Gaza and has succeeded to garner widespread international support is precisely by accusing the Palestinians of using human shields. So, one might say that the act of resistance, which Loevy highlights, was neutralized and subsumed in the existing structures of domination in order to reinforce the structure’s underpinnings, in particular the distinction between civilized Israel that abides by international legal standards and uncivilized Palestinians who systematically violate them by ostensibly forcing civilians to participate in hostilities.
Finally, Maja Zehfuss. Over the years, we have learned a great deal from Zehfuss and her inspiring work—but unfortunately references to her work, particularly War and the Politics of Ethics,[9] were inadvertently and unjustifiably omitted from the notes and bibliography as the result of a heavy editing process—and we were therefore particularly pleased when she complimented us for the way we use human shields as a lens to underscore the operation of racism within the laws of war. Given this praise, we were quite puzzled when she wrote that we fail to fulfil our promise to show how this legal figure helps expose “structures of power sustaining a particular social reality.” In fact, the majority of the book is dedicated to this question. A clearer explanation of her point instead of a generic judgement might have helped us understand the criticism.
Similarly, she highlights our claim that the legitimacy of violence turns on who is recognised as human, a recognition that has historically been and continues to be racialized, but criticizes us for not mentioning Rachel Corrie’s whiteness. “Whiteness,” she asserts, “is not discussed,” even as we write in the book that “Corrie was well aware of her ‘white-skin privilege’ and noted that she was using it to protect non-white civilians and civilian infrastructures. But unlike the shields in Iraq, white privilege did not render her immune from lethal violence” (Human Shields 115). Indeed, we spend scores of pages describing and explaining exactly how, in Zehfuss’ words, “killability is structured by racism,” and how voluntary human shielding is informed by racial privilege.
We found Zehfuss’s suggestion to engage with Derrida’s “undecidability” stimulating. Yet, in our reading the undecidable emerges not so much from the collision between two logics: the human, which evokes the notion of humanity in its twofold meaning of being human as well as being humane toward the vulnerable other, and the shield, which is an instrument of war and violence. Rather, it seems to us that undecidability surfaces because the meaning of events and their ethical interpretation—which in one of our articles we have called the “ethics of distinction”—are never stable in the sense of ever being anchored in a final signified, and therefore the decision one takes always presumes a “leap.”[10] We hope that in our chapters on human shields in Sri Lanka, Iraq, and Afghanistan the reader gets a sense of the “leaps,” or “acrobatics” as we call them in the book, used to justify murderous decisions. In these chapters, we focus primarily on the decisions of the powerful, describing the kinds of “leaps” they made to explain and validate their decisions and the implications these leaps have for civilian populations, the deployment of violence and the production of an ethics of humane warfare.
In another important critique, Zehfuss comments on the fact that we briefly discuss the relationship between the civilian and the citizen, saying she would have liked to hear more about this observation. The point we attempted to make when discussing human shielding and the denial of citizenship in Palestine is that the accusation of human shielding against Palestinians in Gaza is mobilized not only to shift the blame for civilian deaths from Israel to Hamas and thus shield Israel from war crime indictments, but also that it helps produce a hierarchy of humanity—namely, “they use human shields, therefore they are uncivilized”—which frames Palestinians as undeserving of citizenship. Obviously, this is an old colonial trope that had been used time and again to deny citizenship from racialized subjects in the Middle East, Africa, and Asia.
Moreover, in our analysis of Israel’s response to the Palestinian Great March of Return, in which Palestinians demanded the right to return to the lands from which they were expelled in 1948, we also show how the human shielding argument was used to deny Palestinians not only their claim to citizenship, but also their claim to civilianhood and the protections the laws of war afford this status.[11] If, according to international law, human shields are protected people who are used to defend a legitimate military target, then Israel’s claim that Palestinians were using children as human shields during the protests suggests that in Israel’s eyes the protests were made up of children who were transformed into human shields and legitimate military targets. From Israel’s perspective, then, there were no civilians deserving protection in the protests. Every Palestinian in Gaza has been denied citizenship, and all civilians who are active or framed as participating in hostilities, even by taking part in a protest, are denied their civilian status.[12] The denial of citizenship and the denial of civilian protections are thus two co-constituting processes in Gaza.
In the book we intimate that the March of Return and the Black Lives Matter demonstrations are in many ways different, but when we consider the relationship between civilianhood and citizenship an important similarity emerges. Let’s start from a key difference: if the civilian is constituted as passive within the laws of war, the citizen, by contrast, is conceptualized in democratic political thought as someone who is encouraged to actively participate in political processes. In this sense, BLM protesters in the United States are conceptually and practically very different from the stateless and therefore citizenless protesters in Gaza. The first are formally entitled to actively participate in protests, while the second are prohibited.
But the proliferation of human shields in BLM protests suggests that the protestors in both settings share a crucial similarity. Police officers kill black citizens and then police forces with war-like equipment are sent to subdue BLM anti-racist protestors who demand justice and equal citizenship. The violence exerted by the police against these demonstrators has propelled mainly white protestors to create “human walls” of voluntary human shields in order to protect their racialized allies.[13] In the book and in articles written after its publication, we discuss how the relation between the white human shields and black protestors both exposes the racial hierarchy informing society—only white people can serve as shields because their lives are considered more valuable in the police’s eyes—and, paradoxically, reasserts the racial hierarchy informing society, because acting as human shields reaffirms white privilege.[14] Yet, we did not sufficiently stress that in the United States and elsewhere blacks are afforded a racialized notion of citizenship that is quite similar to the way civilians are imagined in the laws of war and treated in Gaza.
Formally black citizens are entitled to protest as active citizens. But, in practice, they are too often treated like civilians, which according to the laws of war are entitled to protection only if they remain passive. This helps explain why in the United States and elsewhere political struggles waged by black citizens are frequently imagined as hostile—particularly when directed against state abuses—and violence is routinely deployed to repress them. By contrast, political struggles waged by whites tend to be imagined as benign and are dealt with in a very different manner.
All of which suggests that the state and its law enforcement organs construe passivity and activity through a racialized lens. If, in other words, BLM protestors reject the passive citizenship to which the state confines them, they are recognized and treated as hostiles, not unlike the way militaries treat non-white civilians who become active in war zones. In this sense, black citizenship morphs into the passive civilian as imagined by the laws of war. Black citizens are not only deterred from actively taking part in political struggles within the public arena, but passivity is the condition for receiving protections in the face of state violence.
NOTES
[1] Neve Gordon and Nicola Perugini, “The Politics of Human Shielding: On the Resignification of space and the Constitution of Civilians as Shields in Liberal Wars,” Environment and Planning D: Society and Space 34, no. 1 (February 2016): 168-187; on maiming, see Jasbir K. Puar, The Right to Maim (Durham, NC: Duke University Press, 2017).
[2] Jessica Whyte, “The ‘Dangerous Concept of the Just War’: Decolonization, Wars of National Liberation, and the Additional Protocols to the Geneva Conventions.” Humanity: An International Journal of Human Rights, Humanitarianism, and Development 9, no. 3 (Winter 2018): 313-341. See also John Reynolds, Empire, Emergency and International Law (Cambridge: Cambridge University Press, 2017).
[3] Helen M. Kinsella, The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian (Ithaca: Cornell University Press, 2011).
[4] Neve Gordon, Nicola Perugini, Ayça Çubukçu, Noura Erakat, and John Reynolds, “Human Shields and the Location of Agency,” Third World Approaches to International Law, February 16, 2021, https://twailr.com/human-shields-and-the-location-of-agency/#.
[5] Neve Gordon and Nicola Perugini, “Human Shields and Proportionality: How Legal Experts Defended War Crimes in Sri Lanka,” Just Security, November 12, 2020, https://www.justsecurity.org/73079/human-shields-and-proportionality-how-legal-experts-defended-war-crimes-in-sri-lanka/
[6] Amnesty International, Unlock the Camps in Sri Lanka: Safety and Dignity for the Displaced Now (London: Amnesty International, 2009); Human Rights Watch, War on the Displaced: Sri Lankan Army and LTTE Abuses against Civilians in the Vanni (New York: HRW, 2009); International Crisis Group, “Sri Lanka: A Bitter Peace, Asia Briefing no. 99.” (New York: ICG, 2010).
[7] Edward Said, Covering Islam. How the Media and the Experts Determine How We See the Rest of the World (New York: Pantheon Books, 1981).
[8] On the sterilization of horrific violence in the era of the war on terror and the significance of interrogating the vantage point of the victims see Adriana Cavarero, Horrorism: Naming Contemporary Violence (New York: Columbia University Press, 2009).
[9] Maja Zehfuss, War and the Politics of Ethics (Oxford: Oxford University Press, 2018).
[10] Nicola Perugini and Neve Gordon, “Distinction and the Ethics of Violence: On the Legal Construction of Liminal Subjects and Spaces,” Antipode 49, no. 5 (November 2017): 1385-1405.
[11] The Palestinian great March of Return is a series of demonstrations organized by Palestinians in 2018 and 2019 close to the fence separating them from the lands from which they were expelled in 1948 and in the following decades. The demonstrators demanded the right to return to the lands from which Palestinians were displaced as a result of Israel’s settler colonial policies, and were met with the indiscriminate use of lethal violence by Israeli snipers. According to the United Nations “214 Palestinians, including 46 children, were killed, and over 36,100, including nearly 8,800 children have been injured. One in five of those injured (over 8,000) were hit by live ammunition” during the demonstrations. Online at https://www.un.org/unispal/document/two-years-on-people-injured-and-traumatized-during-the-great-march-of-return-are-still-struggling/
[12] Lisa Bhungalia, “A Liminal Territory: Gaza, Executive Discretion, and Sanctions Turned Humanitarian,” GeoJournal 75, no. 4 (August 2010): 347-357.
[13] Neve Gordon and Nicola Perugini, “Portland’s Voluntary Human Shields Bring New Kind of Solidarity to America,” Newsweek, August 3, 2020, https://www.newsweek.com/portland-human-shields-new-solidarity-1522325.
[14] Neve Gordon and Nicola Perugini, “White Shields,” London Review of Books Blog, June 9, 2020, https://www.lrb.co.uk/blog/2020/june/white-shields.
