Human Shields

Abstract

In contemporary armed conflict, combatants fight where civilians live. Often, it is both morally and legally permissible to conduct military operations in civilian areas. As in all things, the risks combatants impose on civilians must be proportionate to the military advantage they seek. However, it is unlawful (indeed, it is criminal) to use civilians as human shields, either by moving civilians near military targets (active shielding) or by moving military targets near civilians (passive shielding) for the purpose of preventing or dissuading attacks on those targets.

The moral bases of this legal prohibition are not hard to find. Combatants who use human shields opportunistically take advantage of the presence of civilians; place those civilians at grave risk; and often occasion foreseeable harm to those civilians. In addition, the use of human shields often involves coercing civilians into involuntary service. Strikingly, Cécile Fabre argues that forcing civilians to serve as human shields is not as morally problematic as it seems. I take up her arguments at some length.

Importantly, the use of civilians as involuntary shields by one party does not release the opposing party from its legal obligations not to target these civilians, to avoid harming these civilians, and not to inflict excessive incidental harm on these civilians. Nevertheless, some scholars argue that death or injury to civilians used as involuntary shields should be disregarded or at least discounted in determining proportionality. On their view, an attack that would be disproportionate if some number of civilians is near the target by chance is proportionate if the same number (or an even greater number) of civilians is near the target due to the wrongful actions of the opposing party. I hope that, for many readers, to state this view is to refute it. However, since this view is increasingly prevalent in both public and academic discourse, it is worth examining in some detail.

Finally, the moral status of voluntary shields remains controversial. Some scholars insist that all voluntary shields forfeit the moral protections ordinarily enjoyed by civilians. Others insist that voluntary shields who physically obstruct military operations forfeit these protections while other voluntary shields retain these protections in full. In contrast, I will argue that most voluntary shields compromise but do not lose their moral rights.

For interested readers, I include an Appendix on the legal status of voluntary and involuntary shields. I argue that voluntary shielding amounts to direct participation in hostilities only when the shielded activity itself amounts to direct participation in hostilities. Finally, I argue that there is no legal basis for discounting harm to involuntary shields when determining the proportionality of an attack.

Keywords: Human shields, proportionality, direct participation in hostilities