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Thursday, February 27, 2003

# Posted 9:24 PM by Ariel David Adesnik  

MORE ON HUMAN SHIELDS: Tommy Franks announced yesterday that he couldn't guarantee the safety of the human shields who have set up camp in Iraq. Which brings me to some interesting mail I got in response to my last post on the Iraqi shields.

Lawyer BVK writes that
In response to your (perhaps rhetorical) question re Human Rights Watch's statement on US culpability for killing human shields, they are in part right. Legal responsibility can lie on both sides of an action, even if one side initiates it. For example, when a criminal takes a hostage, the police cannot simply shoot through the hostage to kill the bad guy. Even though the criminal has initiated the situation by putting a hostage between him and the gun, the police officer has a responsibility to assess whether there is a means of apprehending/killing the criminal without endangering the life of the hostage. he end result might be shooting the hostage to get to the criminal, but absent a good justification (more lives would be in danger otherwise) that cop is going to jail.

Here, however, there are two key differences. First, these human shields are not hostages. That probably makes no difference under international humanitarian law (keeping in mind international law is not always well defined), because the crime is using civilians to shield military objectives or targets. Whether or not the shields voluntarily assumed that role doesn't matter, unless in doing so they could be said to have ceased being civilians and instead have become combatants. In the Iraqi case, that argument wouldn't fly. Whether or not the "coalition of the willing" attacks Iraq, he has committed a war crime by deploying civilians as human shields to impede military operations.

Second, international law does not impose the same constraints on combatants as domestic law does on police, although Human Rights Watch almost got the standard right. When faced with human shields, the rule the United States must follow is that "any loss of civilian life incidental to the attack on legitimate military targets must be reduced to what is absolutely necessary to accomplish the mission." Additional Protocol I of 1977 to the Geneva Conventions. Mission is defined broadly; you must look beyond the particular target of a bomb. In Iraq, it could be construed as broadly as something such as "take the city of Baghdad" or, more likely, a bit more narrowly like "take and secure high level military and government facilities and occupants."

Although again not entirely clear under international law (and as we see the number of war crimes trials increase, the law will develop), the other parties deployment of human shields is not an affirmative defense that gets you off the hook for a charge of targeting civilians. The United States and its allies will have to review its target list with the knowledge that certain targets are shielded by civilians and assess whether hitting those targets is absolutely necessary to accomplishing the mission. In the case of electrical plants, the answer may very well be yes. Cutting off the regime's power may be essential, especially in a night attack. I also have read that human shields might be deploying at water facilities. Although unlikely to have been on any target lists, I can't imagine the coalition forces could contend that hitting water plants knowing civilians were present was absolutely necessary to the mission. Of course, many civilians will die; some may be human shields. But with precision bombs and decent target selection, legitimate war crimes charges arising from killing human shields are not a high risk here.
Sounds good to me. Non-lawyer MJ adds that "There is a difference between an innocent civilian human shield in the form of an Iraqi held against his will and a volunteer who chooses to stand where bombs are likely to fall. I don't consider volunteers to protect targets to be civilians at all." I think I'm going to side with BVK on the legal merits and MJ on moral grounds. Regardless, the US should probably do its best to avoid hitting the shields f(if possible) for the practical reason that it will lead to another damaging public fight with assorted European governments. If only the shields were willing to deploy themselves in Israel instead, all this trouble could be avoided...
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