Rights groups have accused Israel of war crimes because an overwhelming majority of the 11,100 Palestinians killed in Israeli attacks are civilians, two-thirds of them women and children.
In its defense, the Israeli army accused the Palestinian resistance group Hamas, which has ruled the Gaza Strip since 2007, of using civilians as human shields. The Palestinian armed group has rejected these allegations.
Israeli Prime Minister Benjamin Netanyahu told US President Joe Biden last month that Hamas was hiding behind civilians. Human shields were “a key pillar of Hamas’ terrorist operations,” The Times of Israel quoted Israeli army spokesman Daniel Hagari as saying on Sunday. Israel, however, has not provided concrete evidence for its allegations.
The Israeli army used this argument to issue evacuation orders to the entire northern part of Gaza as well as to protected facilities, including al-Shifa Hospital, the largest medical facility in Gaza, and to make them legitimate targets. Hamas reiterated that it does not use hospitals for military purposes.
We asked legal experts what the term means and what its implications are for the 2.3 million people living in Gaza.
What are human shields?
In international law, the term refers to civilians or other protected persons whose presence is used to immunize military targets from military operations.
The use of human shields is prohibited by Protocol I of the Geneva Conventions and is considered a war crime as well as a violation of humanitarian law.
There are three types of human shields: voluntary shields are people who deliberately choose to stand in front of a legitimate target as a means of protection; Involuntary shields are people who are coercively deployed as bargaining chips or as a means to thwart an attack; and nearby shields are civilians or civilian sites that become shields or are cast as shields due to their proximity to combat.
After Israel ordered 1.1 million Palestinians from northern Gaza to move south, the family of Al Jazeera correspondent Youmna ElSayed received a phone call from the Israeli military warning them to immediately leave their home. home in Gaza City. They decided it was too risky to make the trip south amid intense bombing.
Neve Gordon, co-author of Human Shields: A History of People in the Line of Fire, told Al Jazeera that evacuation orders give the warring party that issued them – in this case Israel – the opportunity to rejecting families like ElSayed’s and the entire population. from northern Gaza as nearby human shields.
“Temporally, immediate shielding can last much longer than voluntary or involuntary shielding, because the latter two are limited to the time the civilian acts or is forced to act as a shield,” Gordon said. On the other hand, immediate shields exist as long as the fighting continues.
Israel also claimed that Hamas had prevented civilians from leaving northern Gaza, using them as involuntary shields, and that others had voluntarily stayed behind and would therefore be considered “accomplices of a terrorist organization”, according to reports. audio messages on cell phones and leaflets dropped by plane. . Israel has provided no evidence that Hamas forced people to stay.
What are the implications of calling civilians human shields?
The label can be used by a warring party to “relax the repertoire of violence that is permitted to be used in that area,” said Gordon, who teaches international law at Queen Mary University of London.
The presence of human shields does not protect a site from attacks. Even though they are protected persons under the laws of war, the military assets they protect can still be legitimately targeted.
If they die, the responsibility for their deaths falls on those who use them as human shields, rather than those who kill them. Therefore, “in an area where there are only human shields and fighters, more lethal violence can be used,” Gordon said.
The boundaries are drawn by the principles of distinction and proportionality: an army has a duty to target only the enemy, even if this means running greater risks to minimize civilian casualties; and to weigh the military value of each attack against the civilian casualties that will likely result.
Non-combatant civilians, even if used as human shields, are entitled to protection, experts say.
Marc Weller, chair of international law and international constitutional studies at the University of Cambridge, said that if 1,000 people sheltered at a site that hides the presence of Hamas, Israel would have to send soldiers to strike only enemy assets (principle of distinction). If it instead chooses to bomb the complex from the air, it must be able to prove the existence of enemy means and argue that the “accidental” human losses are proportional to the military advantage obtained (principle of proportionality) .
Issuing an evacuation order for 1.1 million people and then treating an entire population as a legitimate target also contravenes the same principles. “Knocking on a building (to ask its residents to evacuate) may be reasonable, but telling a million people that they all have to get out because you are bombing everything is unreasonable,” the Cambridge professor told Al Jazeera .
“Israel cannot fulfill its obligation of distinction by wanting civilians to leave. This places the burden of protection on victims rather than perpetrators.
Can Israel legally strike a hospital if it is used to protect a military target?
Hospitals are protected by humanitarian law, but this status can be lost if their premises are used for military purposes.
“The law says hospitals are protected but immediately adds a series of exceptions where bombing hospitals is allowed,” Gordon said. “Israel knows what these exceptions are and considers the hospital a site where these exceptions apply. »
Gordon and his co-author Nicola Perugini coined the term “medical law” to describe “the idea of presenting hospitals as carrying out a mission that goes beyond their humanitarian duty to justify strikes against them.”
It is a strategy “repeatedly deployed by the Israeli military and government to legitimize attacks on vital and vital infrastructure and place blame on the Palestinians themselves,” Gordon said.
In the case of Al-Shifa Hospital in Gaza City, Israel said it has presented evidence in recent weeks that Hamas’ main command center is located beneath the building, housing at least 5,000 patients and thousands other refugees.
Ezzat el-Reshiq, a Hamas official, denied allegations that the group was using the facility as a shield for its clandestine army. International observers, including Norwegian doctor Mads Gilbert, who worked at the facility for 16 years, said they never encountered any evidence of military activity beneath the facility.
Weller, the Cambridge professor, stressed that even if military activity was proven and the site therefore became susceptible to attack, patients and staff must be given the opportunity to evacuate.
“Again, this does not mean that all civilians there are exempt from the protection of humanitarian law in general. There will still have to be a calculation of proportionality in terms of civilian damage and military gains,” Weller said.
“The very fact that we have seen 44 (Israeli) soldiers killed in this conflict and nearly 11,000 (Palestinian) civilians gives an indication that the calculation of proportionality in Gaza has exceeded the bounds of reasonableness. »