Erol Araf and Frederick Krantz: International Law and Human Shields

Erol Araf & Frederick Krantz

July 17, 2014

The cacophony of voices accusing Israel of breaking "international law" and committing "war crimes" has reached a deafening decibel level. A classic example is Navi Pillay, the United Nations High Commissioner for Human Rights, who entertains serious doubts about Israel's military operation against Gaza on the grounds that it does not comply with international law banning the targeting of civilians. After the pro forma call on both sides to respect the rules of war, she intoned: "International law requires Israel to take all measures to ensure that its attacks are proportional, distinguish between military and civilian objects, and avoid civilian casualties."

She has yet to utter a word on Hamas' rejection of the Egyptian brokered cease fire or commend Israel for the unilateral cessation of hostilities on humanitarian grounds, for six hours, as per the request of the UN and the international community.

The trouble with her interpretation of international law is that it completely ignores the fact that satellites and drones can pinpoint the exact location of missile launches aimed at Israeli cities from the midst of Palestinian schools, mosques, hospitals, homes for the disabled and residential areas. Therefore, her call on Israel to "distinguish between civilian and military targets" is disingenuous. The implication of her statement is that Hamas is launching missiles from military bases outside civilian zones and that Israel, intentionally refusing to attack these missile sites, prefers instead to bomb cities. 

The admonition for distinguishing "between military and civilian objects" should instead have been addressed to Hamas, which directs its missiles not at Israeli military installations but exclusively at Israeli civilians. Moreover Hamas, which places its missile batteries in civilian installations, systematically fails to make the distinction between civilian and military "objects" and as such uses its own civilians as human shields. 

The use of human shields is prohibited under customary international law enshrined in the Fourth Geneva Protocol, Article 28, with respect to protected civilians, and with respect to civilians in general in the Additional Protocol I, Article 51[7]. Moreover, it should be borne in mind that under the Rome Statute of the International Criminal Court, in international conflicts "utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” constitutes a war crime, as outlined in the ICC Statute, Article 8[2][b][xxiii]. 

For example, only yesterday, Wednesday, 16 July, 2014, the UN Relief and Works Agency spokesperson for Palestine Refugees said it found 20 rockets hidden in one of its vacant schools in Gaza and "strongly condemned" whichever Palestinian group had placed them there.

Furthermore, Hamas can also be accused of taking Palestinians living in Gaza hostage. Indeed, under international law, the use of human shields has often been equated with the taking of hostages, which is a crime against humanity resolutely condemned by the Nuremberg Tribunal. This practice is also prohibited by customary international law under Rule 96. 

In addition to incontrovertible satellite and drone data concerning the precise location of missiles launched at almost all major Israeli cities, there is a growing body of compelling evidence against Hamas’s tactic of publicly encouraging civilians to ignore Israeli warnings of impending attacks on residential units used for blatant military purposes. The objective here is twofold: to deter Israeli retaliation and to create "martyrs" for propaganda purposes. Under international law, it is both a war crime and a crime against humanity to position civilians, either voluntarily or under duress, at specific civilian or military locations from whence attacks originate, in order to deter retaliation.       

The other issue Ms Pillay raises is the Doctrine of Proportionality. We wonder if what she has in mind is this: if Hamas launches 1,000 missiles at Israeli civilians, Israel should retaliate with 1,000 missiles of equal payload and range similarly aimed indiscriminately (at Palestinian residents of Gaza)? The UN Human Rights chief obviously is unaware that the Doctrine of Proportionality in war does not apply to terror attacks on the civilian population, or area bombardments that by their very nature do not differentiate between military objectives and civilian targets. 

Indeed, she appears unfamiliar with the Statute of the ICC which reaffirms this by qualifying in Article 8 as a war crime "intentionally directed attacks against the civilian population as such or against individual civilians not talking direct part in hostilities." No proportionality is called for in dealing with terror attacks on civilians.

Ms Pillay reminds us of the Red Queen in Alice in Wonderland whose idea of  human rights can be summed up as "Sentence first–verdict afterwards." Here, Alice's rejoinder is music to our ears: " Stuff and nonsense! The idea of having sentence first!"


Erol Araf is a Montreal writer. Prof. Frederick Krantz is Director,

Canadian Institute for Jewish Research [Montreal & Toronto]