Van Schaack: The Law & Policy of Human Shielding

Beth Van Schaack (Stanford Univ. - Law) has posted The Law & Policy of Human Shielding (in Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare, Christopher M. Ford & Winston S. Williams eds., forthcoming). Here's the abstract:

The phenomenon of human shields challenges many of the core tenets of IHL, including its careful dialectic between the imperatives of humanity and military necessity. Although the concepts of distinction, precaution, and proportionality are well-established in the abstract, any consensus on how these rules apply to situations involving human shields is showing signs of fraying. The IHL literature now offers competing approaches for evaluating the legal consequences surrounding the use of human shields for both the party that stands to benefit from the presence of the shields and for the party seeking to engage the military objective being shielded. In particular, the application of the rules of distinction and proportionality has become the subject of intense debate about whether human shields are entitled to the full panoply of civilian protections when it comes to targeting? This emerging legal indeterminacy is being strategically generated and increasingly deployed by a range of implicated actors and norm entrepreneurs in an effort to loosen the restrictions on targeting, to excuse civilian deaths, and to shield armed actors from legal responsibility — all to the detriment of civilian protection.

These dilemmas undergird this chapter. After distinguishing various forms of human shielding and setting out the operative legal framework in treaty and customary international law, this chapter evaluates the various legal and policy arguments that have emerged to address the phenomenon of human shielding. These arguments are grounded in theories about what it means to directly participate in hostilities, how proportionality should be calculated when human shields are present in a battlespace, and what role hostile intent as well as actual or apparent agency on the part of the shields themselves should play in targeting decisions. The chapter then recommends a way forward by concluding that the safest course for parties truly committed to the values underlying IHL is to adopt a policy that treats all human shields as civilians when it comes to the calculation of potential collateral damage, unless there is irrefutable proof of willing participation in hostilities.