Violence and ethics in
insurgencies
The use of human shields in the Gaza war
2008-2009
Bachelor Thesis – Political Science
Chris Oskam
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Bachelor Thesis
University of Amsterdam
Faculty of Social and Behavioural Sciences
Political Science – Armed conflicts, political actors, and statebuilding
Name student:
Chris Oskam
Student number:
10266917
Title thesis:
Violence and ethics in insurgencies – the use of human shields
in the Gaza war 2008-2009
Supervisor:
Dhr. dr. H. Matthee
Second marker:
Mw. dr. J. Bader
Hand in date:
June 24, 2015
Word count text:
9099
Word count references:
193
Word count thesis:
8906
“Without ethical and legal constraint on both the decision to wage it (jus ad bellum) and its
conduct (jus in bello), war is nothing more than the application of brute force, logically
indistinguishable from mass murder.”
Alex J. Bellamy
“Never think that war, no matter how necessary, nor how justified, is not a crime.”
Ernest Hemingway
“You ask, what is our aim? I can answer in one word. It is victory, victory at all costs, victory
in spite of all terror, victory, however long and hard the road may be; for without victory,
there is no survival.”
Winston S. Churchill
“There is no flag large enough to cover the shame of killing innocent people.”
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Index
Abstract ……….. page 4
Introduction ……….. page 5 Theory
Is it possible and necessary to talk about ethics in war? ……….. page 6 Ethics in war ……….. page 6 Ethics in insurgencies – about human shields ……….. page 8 Types of human shields ……….. page 8 Responsibilities ……….. page 12 Data and methods: Human shields in the Gaza War – 2008-2009
Methodology ……….. page 15
Cases ……….. page 16
Results
Palestine’s right to fight and conscript ……….. page 17 Case 1 – Abd Rammo family ……….. page 18 Case 2 - Ibrahim al-Maqadna mosque ……….. page 20 Case 3 - Shielding of Palestinian houses / Abu Bilal al-Ja’abeer ……….. page 21 Conclusion ……….. page 23 Discussion ……….. page 25 References ……….. page 26
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Abstract
Ethics on war know a long tradition, even though law on war is relatively knew. Since the emerge of new wars, new ethical questions have arisen too. Guerilla groups and state parties make certain decisions that can be judged on their morality. In customary international humanitarian law, the use of human shields is strongly condemned. The use of a human shield is considered a war crime in
international treaties. None of these treaties has ever considered the possibility of using your own population, voluntarily, as a human shield. Michael Gross does this and comes to the conclusion that there are multiple cases thinkable of where human shields are permissible. For how long the people used a shield retain their immunity whilst shielding voluntarily, a guerilla organization has the right to use a human shield, being bound to a list of responsibilities. This new normative theory is being used to look into the Gaza war of 2008-2009. The theory sheds a new light on the use of human shield in the Gaza war. The theory provides a useful tool to look into cases separately, but this study remains unable to find a clear example of a justified use of a human shield. What this means for the theory of Gross is unsure, but adjustments to his theory are recommended. The real value of his theory might lay in the responsibilities it puts with the attacker instead of the defending guerilla party.
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Introduction
In this thesis, violence and ethics in insurgencies will be examined. The discussion of ethics in war is an ongoing one, dating back to the Greeks and the Romans. There is a long Christian tradition on ethics in war, developed by St Augustine Thomas Aquinas and Hugo de Groot (Hugo Grotius). Even though ethics in war are well-discussed, law of war is relatively new. Only in the last 150 years have states made international rules, trying to limit the effect of armed conflict for humanitarian reasons (Website ICRC). In these 150 years, which seems like a very short period in time, war has changed a lot. Some new war tactics are not sufficiently covered in international humanitarian law, or the application of or the thinking about these tactics has changed. The eruption of new wars, where a non-state actor is involved, made things even more complicated. There is less of a tradition of thinking about ethics in insurgencies than that exists about conventional wars. Also, for some reason, “… we find that irregular warfare, both symmetric (irregular vs. irregular) and asymmetric (regular vs. irregular) is far more littered with examples of atrocity than regular warfare (Brantz, 2010: 30).” Atrocities should not just be avoided for their direct negative impact. Atrocities are also important when it comes to making peace. According to Kirschner, atrocities during a war produce deep mistrust of the opponents likely behavior after a negotiated settlement (2009: 29). It is important to study ethics from this perspective. But it is not just academics wanting to propose guidelines and force these upon insurgent and guerilla groups. According to Gross, insurgents and guerillas are unsure about their position in international law and most of the time do not have a position in the ethical debate. This leaves them wanting to know how to fight against superior state armies (Gross, 2014: xii).
In this thesis, a very small part of ethics in insurgencies will be examined. This essay will only try to look at the use of one specific type of violence against the general population in
insurgencies, the use of human shields. It will look over the reasons, applications and consequences of using human shields in irregular wars. It will try to answer the main question: “Can the use of human shields in the 2008-2009 Gaza war be ethically justified?”. This paper will look into this question by answering the following sub questions: 1) Is it possible and necessary to talk about ethics in war? 2) What is the state of art when thinking about ethics in war, irregular war, most important about the use of human shields? 3) Case: Gaza war 2008-2009. In the Gaza war, human shields have been used. Are there examples of human shields in this war that can be ethically justified?
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Theory
Is it possible and necessary to talk about ethics in war?
When talking about ethics in war, it is necessary to establish whether it is useful at all to speak in terms of justice about war. There are two opposing schools, realism and just war theory. Oppenheim gives a clear definition of realism: “there is no point [..] in judging the protection of the national interest as morally right or wrong (1987: 369)”. States will always defend their national interest in an international order of anarchy. There is no point in judging the morality of why and how they do so, because there is no higher power. This leaves state leaders no choice but to put their own national interest over the national interest of other countries. War is not subject to discussions about morality and right or wrong, because that implies that states have another option than to defend their national interest. Just war theorists on the other hand say that choices state leaders make are subject to
morality, and can be judged and compared in that way. To be able to speak about morality in war, it is necessary to create clear guidelines about what is moral and what is not. An author who did this is for instance Brian Orend, in his book ‘The morality of war’ (2006). Orend makes a distinction between ius ad bellum, the phase that applies to leaders wanting to wage war, ius in bello, the phase during a war, and ius post bellum, the phase that follows a war. For each phase, Orend proposes criteria that needs to be met in order for a war to be just.
Why is this more desirable than following the logic of Oppenheim? Realism leaves no room for grey areas. Everything is either black or white, which in reality is not what the world looks like. Some reasons to wage war are more defendable than others, and the same goes for weapons, measures and tactics used during a war. Even if one goes along with Oppenheim in saying that states will always defend their national interest, that does not mean that measures and the violence that comes with doing are not morally assessable. Measures need to be necessary and proportionate. Or as Walzer puts it: "The moral reality of war is divided into two parts. War is always judged twice, first with reasons states have for fighting, secondly with reference to the means they adopt" (Walzer, 2006: 21). In this essay, the look on morality and war from just war theorists will be followed. This does not mean that it is always clear what the morally better option is. Neither does it mean that morality and ethics become an easy subject, because not everyone agrees on the subject. But the different choices states, but also insurgent groups, make in why and how they fight are up for discussion. Why and how they fight can be morally assessed.
Ethics in war
Now it is stated that it is indeed possible and also necessary to talk about ethics in war, it is necessary to look into what ethics in war mean. Before moving on to the ethics in war, one thing needs to be
7 established. In the orthodox view, it is possible to see ius ad bellum and ius in bello separately
(Frowe, 2013: 99). Even if the cause is unjust, a war can still be fought justly, with regard to the means being used. This idea goes back to Walzer, who said it is necessary to look at both separately. In case this does not happen, soldiers will be punished for the decisions of their leaders. Whether a cause is just, is often a political question, and the decision to wage war is most of the time not made by the army itself (Walzer, 2006: 128). Even though this might be very true, there is still a reason to combine ius ad bellum and in bello. If a state or a group has the right to fight, some means might be justified to meet their right to fight. If a party loses their right to fight because they cannot use a certain tactic, one could argue that this certain tactic in that specific case is justifiable. If they are not allowed to use that tactic, they lose their right to fight.
For the understanding of human shields, it is important to understand two things about ethics in war. First of all, the distinction between combatants and non-combatants.The principle of
distinction between civilians and combatants was first set forth in the St. Petersburg Declaration (St. Petersburg Declaration, 1868: Vol. II, Ch. 1, § 83). Now, this distinction is still very prominent in ethics in war. Non-combatants must remain free from attack. Rule 1 of Chapter 1 from customary international humanitarian law (CIHL) is the following: “The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians (Website ICRC a)”. The rule can be found in treaties as well (Additional Protocol I, 1977: Article 48). Who then, is a combatant and who is not? Combatant status only exists in international conflicts. Practice does indicate, however, that persons do not enjoy the protection against attack accorded to civilians when they take a direct part in hostilities. Persons taking a direct part in hostilities in non-international armed conflicts are sometimes labelled
‘combatants’ (Website ICRC b). So civilians taking part in the armed struggle lose their immunity, even if they lack official combatant status.
Secondly, it is important to establish two important ethical restraints to the means being used in armed conflict. Those are the principles of necessity and proportionality. The principle of military necessity “permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law (Website ICRC c)”. This hangs closely together with the principle of proportionality. Chapter 4 Rule 14 of CIHL states that “launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited (Website ICRC d)”. This principle is supported by many treaties for international conflict, such as Additional Protocol I (1977: Article 51(5)(b)). But it is also valid for non-international conflict, supported by Amended Protocol II to the Convention on Certain Conventional Weapons (1996) and Military Manuals (Official Records, 1974-1977).
8 Ethics in insurgencies - about human shields
Unlike for conventional wars, there is much less of a guideline for how to behave morally just in insurgencies. In customary international humanitarian law, treaties, conventions, military manuals and so on there are some restrictions, rules and guidelines that are applicable to insurgencies as well. In different sources, belligerents are prohibited from using “the civilian population or individual civilians to render certain points or areas immune from military operations, to shield military objectives from attacks or to shield, favor or impede military operations” (Additional Protocol I, 1977: Article 51(7), International Criminal Court, 2001: 8(2)(b)(xxiii)). A total overview of all treaties and conventions banning human shields can be found on the website of the International Committee of the Red Cross (Website ICRC e). It may be clear that in CIHL there is consensus on the prohibition of the use of human shields. Using civilians as a human shield willfully exposes them to bodily harm. Their right to life and security gets grossly violated. In all of these conventions and treaties the prohibition is mainly written for belligerents abusing their enemies. As Gross notes, it rarely occurred to anybody that an army could also use its own citizens as a shield (Gross, 2014: 129). Saddam Hussein was the first to do so, and when he forced his own people to shield military sites, worldwide outrage ensued. But Gross comes upon an important distinction in the type of human shields used. Suddam Hussein forced his people, making it an coerced shield. No case addresses the legitimacy of consenting volunteer shields (idem).
Gross tried to write a guideline for both states (Gross, 2010) and for insurgent groups (Gross, 2014) on how to behave ethically during guerilla wars. As the publishing years of those books show, a coherent thinking about ethics in insurgency is something completely new. His book also deals with human shielding. A human shield is defined as “any person who claims immunity from direct attack and whose presence near military operations or infrastructures confers protection against the opposing army (Gross, 2014: 128)”. Human shields easily frustrate military organizations. From the perspective of the state army, the use of human shields is a gross violation of the law of armed conflict. When used effectively, a human shield harms no one, whilst offering a significant military advantage –and that all without cost. Gross has a different approach of human shields than CIHL, which will be explained in the coming paragraphs.
Types of human shields
Different from what CIHL suggest, not all human shields are forced, coerced shields. Looking into non-forced shields, may open a door for the existence of ethically justifiable shields. But before looking into the different types of human shields that may occur, there is also another reason why some types of human shields may be ethically justifiable. Guerillas with a just cause, so for instance with a reason to pick up arms that is recognized and / or supported by the international community,
9 have the right to fight. Before it was mentioned that ius ad bellum and ius in bello sometimes can be combined. This is one of those cases. According to Cordesman (2007: 42), guerilla fighters cannot wage war without the use of human shields. The justification for the use of human shields therefore flow directly from a guerilla organization’s right to a fighting chance (Gross, 2014: 130). In case a guerilla organization has a right to fight, they should also have the right to use human shields. In case they do not, the right to fight gets taken away as well. But even when using this logic, not all shields are permissible. Just like any other mean in war, the use should be necessary and proportionate. If there is ever going to be a chance for human shields to be permissible according to CIHL, there should be strict guidelines, explaining how human shields can be used without violating the non-combatant rights grossly.
Gross makes a distinction between different types of human shields, categorizing them in either involuntary or voluntary shields. Involuntary shields always retain their immunity from attack. The people that are part of a coerced human shield have not chosen to do so, granting them
noncombatant immunity. Same goes for passive shields, where people do not know that they are shielding. This directly brings up a paradox as well. Involuntary human shields are effective, because the people used as a shield have non-combatant immunity. The rights of the people being used as an involuntary human shield are violated though, because using them puts them at risk. Using a
voluntary human shield may seem a good solution: when adults consent to shielding, the guerillas who use them are not violating their rights. But consent undermines the non-combatant immunity, since they voluntarily, knowingly, enter battle. It is that immunity that guerillas try to exploit. Gross calls this the shielding paradox (Gross, 2014: 131).
Is there a possibility to think of a human shield that is both somehow voluntary and retains its non-combatant immunity? According to Additional Protocol I, non-combatant lose their immunity when they participate in a direct way in war. People participating indirectly, for instance working for the political bureau, retain their immunity (Additional Protocol I, 1977: Article 51). Direct
participation is defined as “acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces (Ibid: Article 51(3))”. What this means for human shielding is up for interpretation. Human Rights Watch (HRW) concludes from it that human shields stay immune, whether voluntary or not (2003: 3). This is because according to HRW, the actions of a human shield do not pose a direct risk to the opposing forces. “Because they are not directly engaged in hostilities against an adversary, they retain their civilian immunity from attack (idem)”. This would directly resolve the shielding paradox. The view of HRW is not shared by everyone though.
According to the latest guidelines of the International Committee of the Red Cross (ICRC), civilians who attempt to either “give physical cover to fighting personnel” or to “inhibit the movement of opposing infantry troops” are participating directly in the fighting, therefore they lose their immunity (Melzer, 2009: 56). But, human shields that are congregating around a military installation or a weapon depot making it more difficult to destroy retain their immunity. The difference lays in
10 whether they are forestalling or facilitating an attack. This distinction between direct and indirect shielding is only relevant for voluntary human shields since involuntary human shields always retain their immunity. This leads Gross to come up with the following index (2014: 134):
Because it is difficult to establish whether shields are voluntary, category D will de facto often be immune as well. From here it becomes clearer which type of shield may be morally permissible. Shields from category A and C are morally impermissible, because take the rights away from the general population. Category B is always permissible. No matter whether the attacker knows the intentions of the shield, so if they belong in category A or B, they retain their immunity no matter what. Therefore guerilla’s may use this tactic, because it does not decrease anyone’s rights, but does offer a useful advantage for the guerilla army. Category D is a more difficult one to consider, because the population being used in such a shield leaves them not immune. This means that first of all this type of shield becomes unusable, because a shield without shielding capabilities is nothing but cannon fodder. But reconsider, knowing that the attacker may not know that the shielders are doing so
voluntarily. In this case, the shield could become morally permissible. It does not put people at a risk, because they retain their immunity. They get to choose whether they shield, so it does not take away the people’s rights. Concluding, this means that voluntary human shields trying to protect
war-11 sustaining assets are permissible and offer some tactic advantage. Voluntary human shields trying to protect war-fighting assets are permissible under circumstances, and very difficult to implement.
Even though shields from category D are very difficult to implement, there is a way to organize voluntary shields that are not openly voluntary. A passive or a coerced shield can be consented too. A way to do so is to conscript from the general population. When guerillas fight for a just cause and are recognized as a legitimate authority by the people they represent, guerilla warfare demands the loyalty and support of the people on whose behalf they fight. “Without a critical mass of compatriots to provide combatants, participating civilians, and, when necessary, human shields, guerillas will fail to achieve the security they seek for their people (Gross, 2014: 136)”. When a guerilla organization uses a coerced shield in the form of a conscripted shield, this can be morally permissible. The people assent the guerilla organization to use shields, therefore making the coerced shield voluntary. The same goes for passive shields. Normally, passive shields are impermissible, because they violate the people’s rights without them having chosen for the risk they are put in. But passive shields can be voluntary too. Legitimacy from the guerilla organization to use passive shields means that “following an operation, community institutions and/or community leaders debate the merits, costs, and equity of the shielding tactics insurgents employ (ibid: 137)”. When the shielding proves to be ineffective of accompanied by excessive casualties (most of the time both), the affected population may demand an end to shielding. This leads to the following categories when it comes to ethical permissibility.
12 Responsibilities
The responsibility for the safety of the people being used (either voluntary or involuntary) is divided between the attacker and the defender. Both have different responsibilities, which will be explained now. For the use of a morally / ethically permissible shield, especially the responsibilities of the defender matter. This does not mean that the defender is the only one with responsibilities. Some people may argue that the use of a human shield lays completely with the defender using the shield (Schmitt, 2008:49). An attacker has no obligation at all to protect a shield or to stay away from harm, according to this view. The enemy is not supposed to benefit from its malfeasance, according to Schmitt. But when looking back at the different types of human shields, this is most of the times a defected argumentation (Gross, 2014). In case the enemy behaves malfeasant, when using a human shield that cannot be morally justified (an overtly coerced shield for instance), this should not affect the protection or rights of the noncombatants. That it is wrong of the guerilla party to use a certain human shield, does not refrain the people used in a shield from their rights. Even if the guerillas
13 shoulder responsibility for their actions, the noncombatants in the shield retain their immunity. This should compel attacking armies to do not do disproportionate harm. Second, there are cases when the enemy does not benefit from its malfeasance, since the use of human shields is not per se always malfeasant. Guerilla’s harm no-one’s rights when they use a human shield made up of people that are enlisted or conscripted, consenting. Therefore, the attacker always stays responsible for
disproportionate attacks. Proportionate harm though comes on the responsibility of the defender. In order to prevent any harm, disproportionate or proportionate, the defender has responsibilities towards their population as well. In table 3 an overview of the responsibilities of the defender can be found, as listed by Gross (ibid: 143-145). The most can be tracked down to the principles of necessity and proportionality from CIHL.
14 Concluding the theoretical frame, it can be said that, in theory, certain types of human shields can be morally justified, contrary to what CIHL suggests. There is a long lists of conditions though. First of all, the cause to fight needs to be just. Human shields are only permissible if without doing so, the guerilla organization does not have a chance to fight. Second, there are only some types of human shields permissible. Shields from category B are permissible and shields from category D are
permissible, but only if the attacker cannot know the shield is voluntary. But even when guerillas use a permissible shield, they need to fulfill the responsibilities listed above. When all of these conditions are met, a shield can be morally justifiable.
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Data and methods: Human shields in the Gaza War, 2008-2009
Methodology
The third sub question consists of a case study, trying to look into the ethics surrounding human shields in practice. The chosen case is the Gaza war in 2008-2009. As Stake notes though, a “case study is not a methodological choice but a choice of what is to be studied (2005: 443)”. When it comes to the methodology, the case study will be a disciplined – configurative case study, as categorized by George and Bennett (2005). An interpretive or disciplined –configurative case study aims to explain / interpret a single case, and that interpretation is explicitly structured by a theory or well-developed theoretical framework that focuses attention on some theoretically specified aspects of reality and neglect others. The theory that will be used to interpret the use of human shields in the Gaza war has been explained. This case will be ideographic in that it aims to explain a particular historical episode rather than develop or test theoretical generalizations (Levy, 2009: 73). The aim of the case study is descriptive in that it is focused and detailed, looking at a particular historical episode, having the propositions articulated at the outset (Yin, 2003). The case study is not just a descriptive one though, because the theory being used is a normative theory on ethics instead of a solemnly descriptive theory. This all does not mean that this research does not have any validity when it comes to theoretical generalizations. The power and promise of the study lays in its potential for mining for abstract interpretations and theory development. The outcome of the case study may possibly lead to a result that may say something in general, even if it is not the direct aim of the study. The theory that has been explained is a mainly theoretical normative narrative that has not been tested yet in practice. Whether this theory will prove useful to explain a case does say something in general about how viable the theory is. If there is a human shield to be found that is ethically justified, this could lead to the necessity to rethink ethics in war, or more specific, to redefine CIHL about human shields. If the theory does not add anything when looking into the different cases, the theory might not be that valuable in practice. Instead of only answering whether there were ethically justifiable human shields in the 2008-2009 Gaza war, the study might also say something about whether ethically justifiable human shields are possible in general. So the direct aim is intrinsic: a better understanding of the the case, whilst the indirect result might also be instrumental: a better understanding of the value of the theory set out by Gross (2014) (Stake, 1995).
According to Thomas, there is a purpose, approach and process distinguishable in a case study (2011: 515-517). In this case study, the purpose is to see whether the theory as explained leads to a different, new interpretation of the use of human shields in the Gaza war. Most of the time, the theories used in an interpretive case study are established theories. Here this is less the case, since the theory used is fairly new, coming from 2014. Therefore the purpose of the study is twofold. It is not
16 only trying to see whether the theory leads to a new interpretation of the case, but by doing so also tries to establish whether this theory adds something to the existing body. Next comes the approach that is adopted. The object is theoretical, and the approach will be theory testing, not theory seeking. The process used in the case study will be looking into multiple historical examples of human shielding and put them next to Gross’s interpretation of human shields. The examples will be compared to the conditions set out, being:
1. The shield is necessary for the guerillas, who fight a just cause
2. The shield is morally permissible, coming from category B or category D, with the side note that D is only permissible if the attacker cannot know the intentions of the people in the shield (table 2)
3. The defender fulfills all the responsibilities (see table 3)
Cases
The 2008-2009 Gaza war was chosen because it is an exemplifying case: standing for a broader category of insurgencies where guerilla parties have been accused of war crimes for using human shields. In some aspects it is also a least-likely case though. A least likely case it a case where it is the least likely that a theory will hold (Bennet & Elman, 2007: 173-174). According to Bennet and Elman, the more surprising an outcome is to existing theories, the more it will increase confidence in theories that are consistent with that outcome (ibid: 173). ‘We fight by the rules but they don’t’ has become somewhat of an axiom. The truth of this claim has never been proved, still it is widely accepted as being true. In the case of Israel – Palestine this is definitely the case in how Israel communicates about the conflict. Hamas allegedly used human shields, forcing the Israeli army to attack civilian neighborhoods. The responsibility for the Palestinian casualties is often laid by Hamas. Gross’s theory could provide a new interpretation. The boundaries of the case where chosen out of practical considerations. There seems to be more evidence that the latest Gaza war in the summer of 2014 included the use of human shields. Because this war was so recent though, it will be difficult to establish what exactly happened. There are enough examples from the 2008-2009 Gaza war of allegations of the use of human shields. Three different cases will be examined.
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Results
Palestine’s right to fight and conscript
The right to use human shields can come from the right of a guerilla organization to fight. If their fight is impossible without human shielding, they meet the first condition that was set out. The cause the people of Gaza fight for, is against the Israeli occupation of Gaza. Israeli forces control the crossings from Israel into Gaza. The Israeli’s closed the crossings for commercial and humanitarian goods. Also, the amount of fuel and electricity are controlled by Israel. According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), the results of the closure are immense for the Gazans (OCHA, 2008a, 2008b). The World Food Programme (WFP) was unable to provide any food to many people, whilst many others only received a part of their monthly allocation. In 2008, the WFP suspended their food programmes becauses of the difficulties (OCHA, 2008a: 1). The closure does not only have an effect on the import of food, also on the import of medicine and medical services in general (ibid: 2). The power cuts and shortages of fuel made hospitals and clinics all over Gaza limit their services, whilst thousands of people in need of medical care were stopped at border crossings (for instance to Egypt). Gaza’s water authority was unable to provide around 40% of the Gaza strip with water. Sewage systems fail because of the lack of fuel (ibid). Mister Holmes, United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator expressed shock at the living conditions in the Gaza Strip (OCHA, 2008b). During the 2008-2009 Gaza war, Hamas (a guerilla organization from the Gaza Strip) fought the Israeli occupying forces. The Security Council of the United Nations adopted Resolution 1860 at the 8th of January 2009, shortly before the end of the Gaza war. In this resolution, the security council calls for immediate, durable and fully respected ceasefire in Gaza, leading to a full withdrawal of Israeli forces (United Nations, Resolution 1860). Resolutions from the Security Council have force in international law. This strengthened the Gazans claim on the Gaza Strip. In the resolution the closing of the crossings gets condemned as well. From this information can be said that the fight of the Gazan people against the Israeli occupation is just, since all sorts of basic human rights are denied to them. Whether a cause is just, always remains a political decision though. The Gazans cannot fight their superior enemy without the use of human shields, according to multiple sources (Cordesman, 2007, Gross, 2014). Concluding this means that the people from Gaza both have the right to fight and also have the right to use human shields, because denying them this right would also mean denying them the right to fight at all.
Condition 1 from the conditions set out above, needed to make a ethically permissible shield possible, is met by Hamas in the 2008-2009 Gaza war. Whether Hamas meets the other two
conditions depends on singular cases. In order to be able to conscript or use passive consented human shields, it needs to be established whether Hamas enjoys legitimacy from the Gazans. Important in
18 this matter is the 2006 election for the Council of the Palestinian National Authority, which Hamas won impressively with 74 out of 132 seats. In March 2006 a new unity government was formed by Hamas and established in March 2007 (Morro, 2007). The elections were judged by international observers and found to be competitive and genuinely democratic (Carter Centre, 2006). The Gazans could not have made it clearer who is to represent them, and chose Hamas to do so in open and fair democratic elections. After the elections, the Palestinian Civil War broke out in 2007, resulting in a Hamas government. This government has been internationally disputed. But the question here is not who the international community sees as the legitimate government, but who the population sees as their legitimate representatives. Gazans see Hamas “as a legitimate resistance force, the closest thing they have to a national army, operating within its community and using what advantages it can against a far more powerful enemy (Barnard and Rudoren, 2014)”. Also, Hamas has been open about their ideology about the use of human shields towards their people (and towards the outside world). Fahti Hammad, a Hamas representative said on Al-Aqsa TV that for the Palestinian people, “death has become an industry”, making a human shield “against the Zionist bombing machine (Al Aqsa TV, 2008)”. This, combined with the vote from 2006 (just before the Gaza war) gives Hamas the legitimacy as well to conscript human shields or to use passive human shields, for how long the people from Gaza do not vote against the use of it.
Case 1 – Abd Rammo family
In the first case, the case of Abd Rammo family will be examined. According to an account provided by family members in January 2009, Hamas used their property and homes to store arms and to set up military installations from which the group had launched rockets into Israel (Al-Hayat al-Jadida, 2009). This shield is providing war-fighting aid, since it is shielding a missile launcher. Therefore the shield involved is participating directly and falls in category C or D (table 2). Creating a category D shield (non-openly voluntary) can be done by either using a passive consented or through
conscription. According to this first account in the media in Al-Hayat al-Jadida, the family did know that Hamas was using their home as a shield. Therefore it cannot have been a passive shield. The story from Al-Hayat al-Jadida also contains information on whether the shield was voluntary. According to the same article, the Abd Rammo family tried to prevent Hamas from using their home but “you cannot say anything to the resistance or they will accuse you of collaborating and shoot you in the legs (translation from Palwatch, 2009)”. If these accounts are correct, than the use of the shield was ethically impermissible. Condition 1 is met and condition 2 is met in case the attacker could not know that the shield was voluntary (conscripted). But condition 3 is not met, the defender does not fulfill its responsibilities (table 3). The shield was conscripted in a wrong way. Fair conscription is to distribute risk and not impose violent penalties on civilians that refuse to cooperate. Shooting someone in the leg is a violent penalty on a civilian that refuses to cooperate. Therefore the shield is not voluntary,
19 because only fairly conscripted shields can be considered voluntary. The shields falls in category C, being an involuntary human shield defending war-fighting assets. The use of shields from category C are impermissible.
But how credible is this account from Al-Hayat al-Jadida? The article followed an attack on the family. In the night of 9 to 10 January 2009, Israeli Defense Force (IDF, the Israeli national army) soldiers made a violent entry into the family home by throwing in a grenade and entering shooting. After partly destroying their home, they took the father of the family, Mr. Mahmoud Abd Rabbo al-Ajrami with them . The incident was investigated by the United Nations Fact Finding Mission on the Gaza Conflict (United Nations, 2009). According to Mahmoud Abd Rabbo al-Ajrami the soldiers blindfolded him and threw him off the second floor of a building, before using him as a shield / cover when inspecting the surrounding houses for Hamas fighters (Ibid: 226). They did not find anyone. The Abd Rammo family also stated that they were not shielding Hamas members, and Mahmoud Abd Rabbo al-Ajrami insisted during the interrogations by the IDF that he was a civilian. In an Amnesty International rapport on human shields in the Gaza war (Amnesty International, 2009) there is nothing said about the Abd Rammo home being used as a weapon depot or as a missile launch site at all. Later on, it states that the Israeli authorities were asked to provide information to substantiate its allegations about the use by Hamas of Gaza’s civilians, but Amnesty did not receive a response (Amnesty
International, 2009: 76). “In particular, it found no evidence that Hamas or other fighters directed the movement of civilians to shield military objectives from attacks (Idem)”.
It seems that Hamas did not use the family as a human shield, even though missiles were fired from the surrounding area. Hamas itself argues that it is based among the population because they have no choice in where they operate from, since the Gaza strip is densely populated (Ibid: 76). This could still be seen as a human shield though, not specifically by the Abd Rammo family but by all the families that lived around the area where Hamas shot the missiles from. This is a form of consented passive shielding. Hamas is allowed to conscript. The shield would then be a category D shield, passive but consented and permissible. Whether condition 3 is met, is in this case impossible to establish. It is not even clear what the exact situation was, therefore it becomes impossible to judge the criteria from condition 3. One thing can be said though, and that is about the proportionality and the obligation to minimize mistakes and failure. That Israel did attack, means that both these criteria are not sufficiently met.
An argument against the use of human shields by Hamas becomes apparent from this case as well. Even though it is difficult or even impossible for Hamas to fight without the use of human shields, they still are submit to moral restrictions and responsibilities. Shield users have the obligation to cease using shields if the tactic fails. One of the reasons that the tactic can fail is because the attacker is not deterred by the prospect of causing disproportionate harm (table 3). According to Amnesty International, the Israeli army and government authorities have consistently dismissed concerns about Palestinian civilian casualties (ibid: 8). In an interview from the BBC with the Interior
20 Minister during the Gaza war, Sheetrit, the BBC journalist said that Israel imposed “a hundred times more causalities on Gaza than they did on you (BBC, 2009b)”. Sheetrit replied: “That’s the idea of the operation; what do you think” Somehow these statement have not deterred Hamas from using human shields. According to Israel, the responsibility for Palestinian deaths lays with Hamas. This is a tough view to hold, since the responsibility for civilian casualties is shared by both the attacker and the defender. Deaths from shields that retain their immunity from attack are the responsibility of the attacker. Also, disproportionate attacks are always the responsibility of the attacker.
Case 2 – Ibrahim al-Maqadna mosque
On January 3, 2009, the Ibrahim al-Maqadna mosque in Beit Lahiya was attacked by the IDF (BBC, 2009). The mosque was attacked at dusk during prayer. The mosque was crowded when the missile struck, witnesses said more than 200 people had been inside during the attack (The Guardian, 2009). At least 13 people were killed and 30 were reported wounded. The attack happened because Israel accused Hamas of using mosques to hide weapons and ammunition (as weapon depots). According to Yuval Diskin, who was the director of the Israeli Internal Security Service Shabak (in English referred to as Shin Bet) at that time, large numbers of Hamas operatives are hiding in hospitals or mosques (Ynetnews, 2008). Diskin also said that “they [Hamas, CO] assumed Israel won’t attack them there (Idem)”. Diskin here already implies the opposite, maybe even hinting at Israel’s later attacks. The IDF’s Spokesperson Unit has published videos showing secondary explosions that occurred after destroying mosques (IDF, 2008 and IDF, 2009). The secondary explosions were caused by the weapons and ammunition hidden in the mosques, according to the IDF. This was never proven (Amnesty International, 2009: 76). The attack has been condemned by multiple countries. But for the sake of this research, let’s assume that the Ibrahim al-Maqadna mosque was used as a weapon depot. If these mosques were indeed weapon depots, was this a morally justified way of human shielding? And who bears responsibility for the attacks?
Since condition 1 was already checked off in general, condition 2 and three will be examined here. If the Ibrahim al-Maqadna mosque was indeed a weapon depot, it falls into either category A or B, because it is only a war-sustaining asset (table 2). A human shield shielding a supply depot, always keeps its immunity. Therefore, when it comes to responsibilities, it is actually not even important to establish if the shield was voluntary. The people that made up the shield retained their immunity from attack , which makes the IDF responsible for the deaths the attack resulted in. The question that remains is if the attack was proportionate. If the IDF considered the outcome or results from the attack more valuable or important than risking the lives of the people inside, the attack can have been
proportionate. In this specific case it is very difficult to argue that the attack was proportionate. The attack could have been carried out at any moment of the day. There was no direct threat coming from the mosque, since the mosque was only a war-sustaining asset (even according to the IDF). Instead of
21 picking a moment during the day that would lead to the smallest amount of casualties, the IDF
bombed the mosque during one of the busiest moments of the day: morning prayer. Therefore the risk for the general population, non-combatants that enjoyed immunity (N.B. even if they were knowingly shielding!), was disproportionally high when compared to the gains for the IDF.
But was the shield itself morally justifiable? To answer this question we must know if the shield falls in category A or B. It is not just enemy armies for whom intent is difficult to establish. As a researcher, this is a difficult question as well. Did the people attending the mosque know that, and what, they were shielding? It was not possible to find out the intentions of the people involved. What is possible though is to say that it is not even important if the people attending the service at the mosque were aware of that or what they were shielding. If Hamas is considered the legitimate
representation of the Gazans, they have the right to conscript or organize passive shields, for how long the Gazans do not object the practice. When Hamas is considered the legitimate representative, conscripted or passive shields become voluntary, placing them in category B. What makes the use of passive shields even more tricky, is that unlike conscripted shields, there is no op-out option. When the people that form the shield do not know that they do so, they cannot refuse. There should be a discussion about the use of shields in representative bodies and by community leaders. Only when Hamas manages to organize this debate, the use of passive shields becomes genuinely voluntary. Another problem that one has to bear in mind, is that Israel has been straight forward about that they are not deterred by human shields, not hesitating to attack a human shield if considered necessary. Hamas needs to reconsider every human shield they use, considering the risk they put upon their people and the assumed military advantages. The risk Hamas puts their people in becomes very high due to Israel’s attitude and behavior.
Case 3 – Shielding of Palestinian houses / Abu Bilal al-Ja’abeer
The last case will be dealing with Al-Aqsa TV (the television channel of Hamas), that allegedly called upon Palestinians to shield homes in order to protect the building and the people in it from an
anticipated airstrike (Israel Ministry of Foreign Affairs, 2008). In the case of Abu Bilal al-Ja’abeer, the Israeli government states that a crowd of civilians gathered on a roof to abort a threatened airstrike against the home of a “terrorist” (Israel Ministry of Foreign Affairs, 2009). The original broadcast by Al-Aqsa TV can still be found online on Youtube (Youtube, 2008). According to Al-Aqsa TV, it was Abu Bilal al-Ja’abeer himself who called friends to shield his home, after he was called by Israeli intelligence that his house was targeted for an air attack. He is named a “citizen”, not a terrorist in the video. The labeling of Abu Bilal al-Ja’abeer as a terrorist makes him a target, but he is not on any terrorist list nor a known Hamas leader or fighter. If Abu Bilal al-Ja’abeer is indeed a normal citizen, not a Hamas member, the people that gathered on his roof cannot be called a Hamas human shield. They were not asked to go there by Hamas but by a friend. This is not war-sustaining nor war-fighting
22 aid, but purely a citizen trying to maintain his own safety. Difficulty here lays in establishing Abu Bilal al-Ja’abeer’s ties to Hamas. In case Abu Bilal al-Ja’abeer is a Hamas leader, protecting him would be war-sustaining aid. The shield could be seen as protecting military headquarters. Such a shield would permissible, in the aspect that the shield was voluntary. Abu Bilal al-Ja’abeer called the people that shielded and they themselves decided to come. It is a category B shield. Condition 1 and 2 are met, so now condition 3 can be explored. Most of the aspects of condition 3 are met as well (table 3). The shield was conscripted fairly (voluntarily), there were sufficient numbers to both establish proportionality and a minimization of failure and there was no intent on getting the people that shielded attacked (instead of actually hoping the house to be shielded). The only aspect that can be questioned is necessity and effectiveness. The shield was effective: the house of Abu Bilal al-Ja’abeer did not get attacked. If his house was not a military HQ but he was a normal citizen trying to protect his house, it is questionable whether a human shield was necessary. Necessity means that human shields are only permissible when there are no other (less costly or more effective) available to ensure the right to fight. With losing a normal citizen’s house, the right to fight would not have been
threatened. Is the subsisting of a house important enough to find a human shield necessary? Without knowing exactly what was shielded in this case, it becomes impossible to answer the question whether here the shield was necessary, but a general home gives not enough reason to use a human shield.
The accusation of the Israeli government though is that not normal citizens call upon their friends to defend their homes, nor that Hamas leaders call upon their people to protect military headquarters, but that Hamas via Al-Aqsa TV calls upon normal citizens to defend their homes by forming a human shield (Israel Ministry of Foreign Affairs, 2008). Another example comes from February 2008,when Al-Aqsa TV called upon the residents of Khan Yunis to gather at the house of Ma’amoun Abu ‘Amer due to an anticipated airstrike. An hour later dozens of Palestinians from Khan Yunis were reported to have gathered on the roof of Abu ‘Amer’s house to serve as human shields to prevent the house from being hit (Idem). And indeed, on Youtube there is a clip to be found of an Al-Aqsa broadcast where a Hamas spokesperson calls upon normal citizens to protect their houses from Israeli attacks by forming a human shield (Youtube, 2014). The video was originally broadcasted by Al-Aqsa TV on the 8th of July, 2014. The Hamas spokesperson calls the method of using human shields extremely effective for the protection of houses. This video comes from the most recent Gaza war, and not from the Gaza war of 2008-2009. From that war, there is no evidence to be found that Hamas actively called upon citizens to protect their houses through using a human shield.
23
Conclusion
In this research, the normative ethical theory of Michael Gross about the use of human shields in guerilla warfare was explained and tested in practice. It has tried to answer the main question: “Can the use of human shields in the 2008-2009 Gaza war be ethically justified?”. After the study of the existing knowledge on ethics in warfare and the theory of Gross, the answer to this question was that yes, in theory there could be cases where the use of human shields in the Gaza war can be justified. From the results of the case, a couple of new insights come up about this war. Currently, all use of human shields will be condemned by the international community because of the status quo of international humanitarian law. The use of human shields is forbidden under all circumstances. The use of the theory of Gross though provides new insights in judging the war tactics used by Hamas and the reactions of the IDF. In some cases, the use of human shields may have been justified. In the first case, of the Abd Rammo family, it was not possible to prove the use of a human shield. Depending on which account is believed, a different judgement of the ethical side becomes apparent. The most likely situation though, where missiles where shot from the surrounding area instead of from the family home, is a permissible human shield. Passive, but consented because of the support for Hamas and their openness about war tactics. The casualties then become the responsibility of the IDF, judging the necessity and appropriateness from their side. In the second case, of the Ibrahim al-Maqadna mosque, the same situation appears. It remains unclear what exactly happened, and depending on which account is believed another ethical judgement should be made. The attack on the mosque was ethically wrong, no matter what the shield was shielding. The last case, looking into the shielding of Palestinian houses, also proves difficult to judge due to a lack of clear evidence of what exactly happened. In case that Hamas does what the IDF accuses them of, using citizens to shield their own houses, it is ethically unjustified. The shield is not necessary, not ensuring a right to fight. And even if those kind of shields would prove effective, it would also show a low valuation of the lives of the general population by Hamas.
The case study was not able to give a definite answer to the research question. The answer therefore remains that in theory, it is indeed possible, but a clear example has not been found yet. Furthermore, at the outset was said that “when used effectively, a human shield harms no one, whilst offering a significant military advantage –and that all without cost”. From the results of the case study, the image emerges that it is very difficult to use an human shield effectively. The attacks by the IDF underline the immense risk a human shield puts upon the general population. Even though generalizing is not the direct aim of the study, some generalizations can be made from this study. The theory does give new insights, where otherwise no interest would have been for the specific situation and context, because IHL judged every form of human shielding in the same way. Every case has proven to be very different, and these differences show that no case can be ethically judged in the same way. Ethics in war is a complex business, guerilla war maybe even more so. A theory that
24 makes it possible to judge separate cases separately is therefore something that should be valued highly. This theory has showed itself to be a useful tool. The theory does still need adjustments, looking at the results. If there is ever going to be a chance for human shields to be permissible according to CIHL, there should be strict guidelines, explaining how human shields can be used without violating the non-combatant rights grossly. The guidelines as proposed by Gross have shown to be very difficult to implement.
25
Discussion
In order to apply the theory of Gross in practice, a lot of information is needed. The theory is based on the concept of voluntary human shields. In the case of passive or coerced consented shields, the voluntariness can be established to some extent In case of voluntary shields, one needs to know what the people that are part of the shield know and think to establish intent. It is this difficulty that the guerillas exploit. In case the attacker cannot know for sure that a shield is voluntary, it cannot be attacked. Involuntary shields always retain their immunity, and any disproportionate effects are for the attacker. In order to study the use of human shields with the theory of Gross, insight in intentions is needed, while intentions are per definition difficult to prove. For instance in the case of the Ibrahim al-Maqadna mosque, one cannot know the knowledge and intentions of the people involved without asking them. But even if one were to go to Beit Lahiya, it would still be difficult to establish the honestly of the answers given. Maybe now, post-war, more open accounts are to be collected, but the situation in the Gaza Strip continues to be complex. Israel still controls most of the crossings, the electricity supply and so on. It remains risky for a Palestinian to be open about his or her ties to Hamas. Hamas is still considered a terrorist organization by the IDF, calling them “the terrorist group that now controls Gaza”, and acknowledging your ties to Hamas as a normal citizen could be a dangerous practice (IDF, 2014). It might just as well be impossible to establish intent for the length of the conflict. This shows how difficult it is to work with the concept of voluntary human shields.
Before a new theory about ethics surrounding human shielding can become usable in international humanitarian law, the international community must be swayed by the possibility of ethically just human shields. This possibility can best be showed by giving an example.
Unfortunately, this study was unable to give a clear, unchallengeable example of ethically justified use of a human shield. Therefore, the results from this study remain difficult to generalize. For a next study, a broader search for a ethically justified use of human shielding could be interesting. Also, if in the future more information becomes available about the 2008-2009 Gaza war, a new judgement of the cases used in this study could be done. Also, a field study would give more insights in the intentions of people. Through qualitative research methods, for instance interviewing the people that were present during the cases in this study, could maybe provide more insights in intentions. And even then, the question remains how desirable human shields are. The results showed that Israel often attacked anyway, the use of human shields remains a risky practice, which guerillas should avoid whenever possible. In the future, another part of the theory of Gross might deserve a closer look. The value of the theory of Gross in developing ethics in insurgencies may lay more with the restrictions and responsibilities he gives the attacker. The study shows that no matter what shield a guerilla party may use, this should never absolves the attacker from its own responsibilities.
26
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