In modern warfare, military combatants’ interpretations of “human shields” often determine the difference between a civilian protected under international law and a legally excusable casualty.[1] International humanitarian law (“IHL”) prohibits combatants from using human shields.[2] Yet the United States (“U.S.”) and Israel continue to expand their interpretations of “human shields” to classify entire civilian populations as “shields” in conflict zones.[3] Today, a new category – “proximate shields” – allows military forces to blur the line between civilians and combatants, making civilians in war zones vulnerable to lethal violence.[4] The areas most affected are densely populated countries in the Global South.[5] IHL requires militant combatants to employ proportionate measures to achieve its military objectives while minimizing civilian casualties.[6] The distortion of IHL’s “human shields” definition, however, eliminates civilian protections and systematically redefines their deaths as collateral damages rather than war crimes.[7] The U.S. and Israel, therefore, avoid accountability while mass killings in the Global South are increasingly justified.[8]
The Legal Framework of “Human Shields” In IHL
IHL commonly recognizes two categories of human shields: voluntary individuals intentionally positioning themselves to deter attacks and involuntary civilians forcibly used by combatants as a means of defense.[9] However, twenty-first-century warfare has introduced a dangerous third category – “proximate shields” – where entire civilian populations become reclassified as “human shields” merely because of their presence in densely populated areas where “civilians are likely to be present in high numbers and where public infrastructure is dense.”[10] As a result, countries like the U.S. and Israel reframe the large-scale eradication of populations as an inevitable consequence of war, rather than a violation of international law.[11] During the 2009 Gaza War, for example, the U.N. Fact-Finding Mission Report stated, “Mortars are area weapons. They kill or maim whoever is within the impact zone after detonation, and they are incapable of distinguishing between combatants and civilians.”[12] Heavily targeted areas like the Gaza Strip, Iraq, Afghanistan, South Lebanon, and Yemen include some of the most congested populations on earth.[13] Thus, these areas are exceedingly vulnerable to attacks and are “continuously exposed to lethal state violence due to their proximity to military targets.”[14]
Today, the U.S. and Israel are progressively enabling mass destruction on unprecedented scales while using the “human shields” justification.[15] IHL explicitly forbids combatants from using humans as shields under international law.[16] However, Article 51(3) of Protocol Additional to the Geneva Conventions provides countries with leeway in defining an attack as proportionate if civilians in contested areas are considered to be shielding military targets, effectively widening the scope of warranted civilian casualties.[17] Specifically, civilians are protected under Article 51 “unless and for such time as they take a direct part in hostilities.”[18] Countries can broaden this clause to equate civilians being used as proximate shields as civilians taking direct part in hostilities.[19]
“A space of life to a space of death”: The emergence of “proximate shields” and legal distortion[20]
While the U.S. and Israel have signed the 1949 Geneva Conventions, neither country has ratified the Additional Protocols I and II of 1977.[21] Both countries nonetheless remain bound by the principle of proportionality, established as customary law.[22] IHL prohibits militant combatants from “launching an attack which may be expected to cause incidental loss of civilian life, … which would be excessive in relation to the concrete and direct military advantage anticipated….”[23] Absent ratification, the international community accepts the principle of proportionality as customary international law.[24] IHL acknowledges the possibility of “civilians and civilian objects remain[ing] in danger of incidental harm from an attack,” but enforces the obligation of ceasing all military operations if the anticipated result will bring excessive incidental loss of civilian life.[25]
Expanding the definition of a “human shield” provides countries with a loophole to bypass IHL’s proportionality requirement. For instance, in the 1990 Gulf War, the U.S. Department of Defense argued that Iraq intentionally placed military weapons near civilian sites, including vehicles, schools, mosques, and hospitals.[26] Consequently, 400 homes, two hospitals, two schools, two medical clinics, and one mosque were destroyed by indiscriminate bombing.[27] With most of Iraq’s electrical-generating facilities damaged, U.S. commander Gen. Norman Schwarzkopf stated it was never their “intention of destroying all Iraqi electric power,” but saw it as a necessary military objective.[28] Residents and locals, however, never witnessed any military targets within their vicinity that may have merited the attacks.[29] The U.S. effectively sidestepped IHL’s proportionality assessments and accepted widespread civilian death as a legally excusable outcome.[30] This paved the way for the “proximate shields” category, where civilians are neither intentionally nor forcibly used to protect military targets, but labeled as “human shields” due to their proximity to war zones.[31]
The U.S. and Israel justify airstrikes on residential neighborhoods, hospitals, or schools by pointing to a potential military target operating nearby.[32] Suddenly, anything within proximity no longer holds civilian status.[33] Humans, animals, buildings, and refugee camps are transformed into objects that may be targeted to achieve military objectives.[34] The U.S. and Israel accordingly shift the narrative, framing attacks as a defensible operation to eliminate a threat while rescuing the civilians allegedly being used as shields.[35] By using the “human shields” argument, they perpetrate mass destruction, displacement, and death, especially in areas like Iraq, the Gaza Strip, Southern Lebanon, and Yemen.[36] In the last twenty years, their interpretations have caused “the world’s most devastating scenes of armed violence in both war and peace contexts that are geographically and politically diverse.”[37] Their manipulation of international law is frequently accepted at face value, validated as a necessary military operation to rescue victims of the “savages.”[38] The deliberate media omission of indiscriminate bombing obscures the reality that thousands of innocent people are subject to annihilation under the guise of military necessity.[39] Just as the U.S. framed itself to be saving citizens from Saddam Hussein’s regime, Israeli pro-war propagandists chant, “Free Gaza from Hamas,” or claim that Hamas is “using children as human shields.”[40] In response, Israel indiscriminately bombs residential areas, refugee camps, hospitals, and schools, conveying the false image of protecting its civilians from Hamas.[41] Additionally, Israel used the “human shields” argument before carrying out airstrikes on schools, hospitals, and homes in Southern Lebanon.[42] Such acts become reasonable when “accepted against the backdrop of an imagined Israeli mission to liberate the victims from savages.”[43]
Exploiting Legal Gaps to Justify Mass Casualties
Developments of the “human shields” definition in international law have transformed a legal safeguard for civilians into a justification for their deaths.[44] The U.S. and Israel have evaded accountability for large-scale casualties on the exact populations that IHL intended to protect.[45] While these countries broaden “human shields” into a third category of “proximate shields,” IHL’s legal distinction between combatants and civilians progressively fades; countries have begun to impose disproportionate military measures by labeling civilians as “human shields,” thereby authorizing states to execute indiscriminate attacks.[46] “Proximate shields” inflict the greatest harm on civilians living in highly congested places where various infrastructures are close together.[47] Any alleged military operation in a tightly compacted community will inevitably cause disproportionate levels of destruction that far exceed any “military objective.”[48] Too often, the conversation ends here with no accountability.[49]
Governments must be held liable for fabricated claims to prevent extensive and undiscerning deaths. The international community should create an independent investigatory group for “human shield” allegations and develop strict evidentiary requirements to decide the validity of “human shield” claims. The U.N. and human rights organizations should track and report any false “human shield” assertions countries use. States weaponizing the “human shields” argument while overlooking widespread devastation should be investigated and prosecuted.
Challenging the Weaponization of Human Shields
Permitting states to classify civilian deaths as “collateral damage” under the pretext of proximate human shields sets a dangerous precedent. Left unchallenged, this distortion of IHL enables mass casualties and further undermines the principles of humanitarian law. The weaponizing of “human shields” does not serve to protect civilians.[50] Instead, it serves to make their deaths more acceptable.[51] Without intervention, this legal distortion will continue to legitimize large-scale killings and undermine the core principles of humanitarian law. The international community must respond with urgency. Independent investigations into “human shield” claims should be mandatory, and states misusing or abusing the “human shield” argument to commit mass slaughter should face legal consequences. Only through consistent accountability and improved legal safeguards can IHL’s core purpose of protecting civilians be reclaimed.
[1] Dimitri Van Den Meerssche, Global south perspectives on methodology and critique in international law, 37 Leiden J. of Int’l l., 763, 772 (2024).
[2] Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, 1 I.R.C.R., 3, 337 (2005).
[3] Putting Noncombatants at Risk: Saddam’s Use of “Human Shields”, Central Intelligence Agency (2003), https://permanent.fdlp.gov/websites/www.cia.gov/www.cia.gov/cia/reports/iraq_human_shields/iraq_human_shields.pdf; Abdelghany Sayed, What we talk about when we talk about ‘human shields’: Reading international law through images, 37 Leiden J. of Int’l l. 773, 800 (2024).
[4] Sayed, supra note 3 at 773.
[5] John Borrie, Enhancing civilian protection from use of explosive weapons in populated areas: building a policy and research agenda, 93 Int’l Rev. of the Red Cross 809, 836 (2011).
[6] Henckaerts & Doswald-Beck, supra note 2 at 46.
[7] Charles Trumbull, Collateral Damage and Innocent Bystanders in War, Lieber Inst. for L. & Warfare, https://lieber.westpoint.edu/collateral-damage-innocent-bystanders-war/ (last visited Mar. 23, 2024).
[8] Sayed, supra note3 at 800.
[9] Id. at 774.
[10] Id.; Borrie, supra note5 at 809.
[11] Sayed, supra note3 at 776.
[12] Human Rights Council Rep. of the U.N. Fact-Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/12/48, at 158, ¶ 699 (Sept. 25, 2009).
[13] Borrie, supra note 5 at 836.
[14] Interview by Ayça Çubukçu et al. with Neve Gordon & Nicola Perugini, Third World Approaches to Int’l L. Rev. (Feb. 2021), https://twailr.com/wp-content/uploads/2021/02/TWAILR-Dialogue-Human-Shields-Gordon-Perugini-with-Cubukcu-Erakat-Reynolds.pdf.
[15] Luigi Daniele, Incidentality of the civilian harm in international humanitarian law and its Contra Legem antonyms in recent discourses on the laws of war, 29 J. of Conflict & Sec. L. 21-23 (2024).
[16] Jean-Marie Henckaerts & Louise Doswald-Beck, supra note 2 at 337.
[17] I.H.L. Databases, Art. 51, Int’l Comm. of the Red Cross, https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51.
[18] Id. (emphasis added).
[19] Borrie, supra note 5 at 809, 836; Sayed, supra note 3 at 800.
[20] Sayed, supra note 3 at 774.
[21] Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135., https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949/state-parties/us and https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/state-parties; Cordula Droege & Elizabeth Rushing, Israel and the occupied territories: how international humanitarian law applies, Human. L. & Pol’y (Dec. 19, 2023), https://blogs.icrc.org/law-and-policy/2023/12/19/israel-and-the-occupied-territories-how-international-humanitarian-law-applies/#:~:text=Under%20the%20principle%20of%20proportionality,and%20direct%20military%20advantage%20anticipated; Dep’t of Def., Rep. on Conduct of the Persian Gulf War, Pub. L. No. 102-25, 1 Stat. 689, 698-99 (1992).
[22] Id.
[23] Jean-Marie Henckaerts & Louise Doswald-Beck, supra note 2 at 46.
[24] Ian Henderson & Kate Reece, PROPORTIONALITY: Proportionality under International Humanitarian Law: The “Reasonable Military Commander” Standard and Reverberating Effects, 51 Vand. J. Transnat’l L. 835, 836 (2018).
[25] Id. at 854; Understanding International Humanitarian Law: An Introduction to the Law of Armed Conflict, Diakonia Int’l Human. L. Ctr. (2022), https://apidiakoniase.cdn.triggerfish.cloud/uploads/sites/2/2022/02/Understanding_IHL-booklet.pdf; Geneva Protocol of 1949 ¶ 3 cmt. 2169 (Int’l Comm. of the Red Cross 1987).
[26] Human Rights Watch, Middle East Watch Report: Needless Deaths in the Gulf War 76 (1991).
[27] Id. at 13.
[28] Id. at 9.
[29] Id. at 13.
[30] Id. at 11.
[31] Id. at 76.
[32] Id.; Mara Revkin, The Israel-Hamas Conflict: International Law, Accountability, and Challenges in Modern Warfare, Judicature Int’l, https://judicature.duke.edu/articles/israel-hamas-conflict-international-law/ (last visited Mar. 23, 2025).
[33] Sayed, supra note 3 at 773.
[34] Id.
[35] Id. at 799; Human Rights Watch, supra note 26 at 10, 72; Press Release, Security Council, Security Council Debates Israeli Attacks on Hospitals Allegedly Misused by Hamas, as UN Rights Chief Urges Independent Probes, U.N. Press Release SC/15959 (Jan. 3, 2025).
[36] Human Rights Watch, supra note 26 at 140; Toi Staff et al., Gallant: Hamas as ‘military formation’ in Gaza is gone, IDF focus shifting to north, The Times of Isr. (Sept. 10, 2024), https://www.timesofisrael.com/gallant-hamas-as-military-formation-in-gaza-is-gone-now-only-guerrilla-warfare/; IDF Editorial Team, Hamas Caught Using Human Shields in Gaza, The Isr. Def. Forces (July. 8, 2014) https://www.idf.il/en/mini-sites/the-hamas-terrorist-organization/hamas-caught-using-human-shields-in-gaza/;“You are being used as a human shield.” Netanyahu addressed the people of Lebanon, Radar Armenia (Sept. 23, 2024), https://radar.am/en/news/world-2654210732/.
[37] Sayed, supra note 3 at 773.
[38] Id. at 779.
[39] Daniele, supra note 15 at 21-22.
[40] Human Rights Watch, supra note 26 at 140; Sayed, supra note 3 at 799.
[41] Human Rights Watch, “Hopeless, Starving, and Besieged”: Israel’s Forced Displacement of Palestinians in Gaza 94, 124 (2024).
[42] IDF Editorial Team, Hezbollah’s Use of Human Shields, The Isr. Def. Forces (July. 8, 2014), https://www.idf.il/en/mini-sites/hezbollah-and-lebanon-an-in-depth-examination-under-hassan-nasrallah-s-leadership/hezbollah-s-use-of-human-shields/.
[43] Sayed, supra note 3 at 779.
[44] Id.
[45] Id. at 778.
[46] Van Den Meerssche, supra note 1 at 763.
[47] Borrie, supra note 5 at 819.
[48] Id.
[49] Id.
[50] Sayed, supra note 3 at 773.
[51] Id.
