Op-Ed: Geneva meets Jihad: The New Rules of War
Despite thousands of rockets being fired at Israeli cities, towns and kibbutzim during Israel’s current conflict with Hamas and Palestinian Islamic Jihad terrorists in Gaza, the European Union recently condemned Israel’s “disproportionate use of force” and issued a communiqué urging Israel to “refrain from all activities that endanger civilians” in Gaza on the grounds that “such activities are contrary to international law.” UN Secretary-General Ban Ki-Moon has called Israeli actions “outrageous” and “indefensible,” and his reaction has fueled demands that Israel be dragged before the International Criminal Court in The Hague.
Human Rights Watch (HRW) has issued similar statements noting that civilians acting as human shields do not pose a direct threat to opposing forces and therefore retain their immunity from attack because they are not directly engaged in hostilities against an adversary. By this standard, even a targeted killing or an attempt to arrest a terrorist “endangers” civilians. Translated into practical terms, these statements suggest that it is a violation of international humanitarian law (and conceivably a war crime as well) for Israel to attack any of Hamas’s terrorist infrastructures or leaders when those infrastructures and/or leaders are being protected by human shields. If true, we have handed our enemies a valuable weapon in their war against us, and we have given them an enormous tactical advantage that rewards them for reprehensible behavior.*
What is at stake are the very rules of war that underpin our entire international order - the most important rule of which is the distinction between combatants and non-combatants - an ambiguity promoted by jihadists in this new era of asymmetric warfare. While Israel and the US endanger themselves to protect civilians in times of war and mourn their deaths when they become victims, our jihadist enemies consciously place civilians in harms’ way to protect themselves and their weapons systems.
Jihadists are fanatics, but they are not fools. If the tactic of using human shields assists them in achieving their military objectives (by forcing us to refrain from attacking them) and their actions are not universally condemned, they will utilize them. Lacking our respect for human life and celebrating their deaths as “martyrs”, they perceive our sense of morality and humanity as weakness and use it to their military advantage.
During Israel’s Operation Protective Edge in Gaza, Israeli soldiers seized a Hamas training manual (“Introduction to the City War”) produced by the Shuja’iya Brigade of Hamas’ military wing (the Al-Qassam Brigades) that extols the benefits of Palestinian civilian deaths and the destruction of Palestinian property for propaganda purposes and openly admits that Israel tries to avoid both. It also advises its combatants to use civilians as human shields wherever possible.
Hamas' war strategy works like this:
1. Attack Israeli civilians in such a manner as to provoke a counter-response from Israel.
2. Use Palestinian civilians as human shields (preferably in crowded neighborhoods, schools, and hospitals), while encouraging (or forcing) them to stay where they are thereby guaranteeing that Israeli return fire will wound or kill civilians and damage civilian structures.
3. Encourage the Western news media to promote Palestinian civilian suffering, play down Hamas’ role in using civilians as human shields by preventing the media from reporting it, and accuse Israel of committing war crimes.
4. Promote a firestorm of outrage around the world to pressure Israel into desisting from taking counter-offensive measures.
5. Utilize the propaganda victory to prepare for the next round of strikes against Israeli civilians.
6. Repeat the process utilizing international news coverage to further savage Israel’s international reputation.
In this war of public perceptions, Hamas’s human shield tactics have given its leaders a win-win strategy even if the result is tragedy for their own people. If the Israelis abort a strike to avoid civilian casualties (as they often do), then Hamas wins. If an Israeli strike causes civilian casualties, then Hamas uses the bodies of dead Palestinian children to parade before the Western media which is all-to-eager to place these photos on its front pages thereby creating the impression that Israelis are monsters who are committing war crimes in Gaza.
If the military assets of our enemies are deemed invulnerable because they are protected by human shields, Western democracies are presented with a Hobbesian choice. By failing to respond to a terror attack or by failing to destroy a significant terrorist asset (human or otherwise), we endanger our own war objectives and, in the end, our own citizens. By responding, the Western world (not just the Israelis) runs the risk of killing civilians, reaping international condemnation, and inviting diplomatic pressure to end military operations before having achieved its military objectives. Israel now finds itself in that position.
Our enemies understand this. That’s why, in many regions of the world, militias continue to use human shields as a viable military tactic. They wage war using high-density residential areas as launching pads for their rockets and heavy-caliber weapons, build their headquarters in densely populated areas, embed their terrorists in cities and towns, deliberately fire rockets and build their tunnel entrances in or near private homes, mosques, apartment buildings, hospitals, playgrounds, schools and UN facilities like UNRWA, and use children to retrieve used missile launchers knowing they will be not be targeted by retaliatory strikes or, if they are, that their deaths will be condemned by the Western media.
Bosnian Serbs used human shields against Muslim and Croat forces to immunize themselves from indirect and direct fire. Cambodian government forces used ethnic Vietnamese civilians as human shields as they advanced on Vietnamese positions. Throughout the civil war in Sierra Leone during the 1990s, members of the Revolutionary United Front routinely abducted children and used them as human shields against government forces. Chechen rebels used ethnic Russian civilians as human shields during the brutal war in Chechnya. In 1993, the United States attempted to apprehend warlord Mohamed Farrah Aidid in Somalia in order to restore order to the country. Somali gunmen (interspersed among the crowd) engaged US forces by stepping out of large crowds of civilians, firing, then retreating into the crowd using their own people as human shields. They also used hospitals and other civilian buildings as places from which to direct fire at US forces.
During Israel’s Second Lebanon War in the summer of 2006, Hezbollah (like Hamas and Palestinian Islamic Jihad in the current Gaza conflict) prevented civilians from leaving their homes anticipating Israeli military strikes; used their mosques to stockpile weapons, and used civilian residences as their bases of operations arguing all the while that the use of human shields is a legitimate tactical military strategy under Islam - Geneva Conventions be damned.
The Geneva Conventions and Protocols were designed for traditional warfare in an earlier era - at a time when soldiers fought soldiers and tanks fought tanks; when there were clear distinctions between combatants and non-combatants; when civilians wore civilian clothing and the military wore uniforms, and when organized military forces operated largely outside heavily populated areas. The tactics of war, however, have changed in the post-modern era. Rather than protect non-combatants, terrorists incorporate them into their tactical war strategy and, in the case of Salafi jihadists - these “civilians” often willingly sacrifice their lives as human shields in the name of “martyrdom”.
As we see in Operation Protective Edge in Gaza, Hamas and Palestinian Islamic Jihad supporters continue to use ambulances, humanitarian relief shipments, pregnant women, and even children as weapons of war. As a consequence, post-World War II democracies find themselves handicapped in battling post-modern enemies whose regard for human life is vastly different from our own. Unfortunately, the Geneva Conventions have worked against modern democracies and now favor the strategy of terrorists for whom no distinction exists between combatants and non-combatants.
As Alan Dershowitz wrote several years ago:
“The Geneva Conventions have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists…terrorists who do not care about the laws of warfare and target innocent non-combatants. Indeed, their goal is to maximize the number of deaths and injuries among vulnerable civilians (for propaganda purposes). The terrorist leaders – who do not wear military uniforms – deliberately hide among non-combatants. They have also used ambulances, women pretending to be sick or pregnant, and even children as carriers of lethal explosives.”
Democracies must recognize that death or injury to “civilian” human shields who voluntarily take up positions at the site of legitimate military objectives, should not constitute “civilian collateral damage” since they have assumed the risk of combat and have compromised their non-combatant immunity.
Moreover, democracies should be legally empowered to attack terrorists who hide among civilians, so long as proportional force is employed. The fault for their deaths should lie with those who have chosen to use them as human shields; the law should reflect this if it does not do so already; and the international media must recognize this perverse military tactic as the war crime it is.
Unfortunately, many human rights organizations, NGOs and especially the media constantly play into the hands of terrorists. If we want to live in a world where civilians are never used as human shields, then there must be unequivocal international condemnation of those who use them as a deliberate military tactic. Until our laws and attitudes change on this subject, our enemies will continue to use such tactics as they clearly see enormous military dividends in doing so.
Prime Minister Netanyahu has insisted throughout Operation Protective Edge that the international reactions to the Gaza war are a test for the entire free world and not for Israel alone. He is correct. Failing to recognize our enemies’ perverse war tactics as the war crimes they are will only serve to endanger civilians everywhere and place in peril any future war effort we ourselves undertake. As Eli Wiesel has written: “What we are suffering through today is not a battle of Jew versus Arab or Israeli versus Palestinian. Rather, it is a battle between those who celebrate life and those who champion death. It is a battle of civilization versus barbarism."
*International law is quite clear on this point. Article 28 of the Fourth Geneva Convention provides that “The presence of a protected person (i.e.: a civilian) may not be used to render certain …… areas immune from military operations.” To this was added Article 51 (7) of the June 1977 amendment to the 1949 Geneva Convention that elaborated on the latter by adding: “The presence ….. of the civilian population or individual civilians shall not be used to render certain ….. areas immune from military operations, in particular in attempts to shield military objects from attacks or to shield, favor or impede military operations.”
The problem is, much of the international media and many international human rights organizations, for purely humanitarian reasons, choose to overlook this provision. As a result, Israel (the victim) is portrayed as the aggressor, and Hamas (the aggressor) is portrayed as the victim.